Question Period Note: s.56 Request to allow for Personnal Possession

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• The opioid and toxic drug supply crisis is heartbreaking and has taken a tragic toll on the families, loved ones and communities of all those we have lost to opioid overdoses across Canada.
• We recognize that substance use is a health issue and are working to divert people who use drugs away from the criminal justice system and towards supportive and trusted relationships in health and social services.
• Subsection 56(1) of the Controlled Drugs and Substances Act (CDSA) gives the Minister of Mental Health and Addictions and the Associate Minister of Health discretionary authority to grant an exemption from the CDSA or its regulation to allow activities involving controlled substances, if the Minister is of the opinion that it is necessary for a medical or scientific purpose or if otherwise in the public interest.

IF PRESSED ON THE RATIONALE FOR THE DECISION
• British Columbia requested an exemption related to the personal possession of small amounts of certain illegal drugs as one part of the province’s comprehensive approach to address the overdose crisis.
• Canada is treating substance use as a health issue, not as a criminal one. Stigma related to substance use can lead people to hide their drug use, use in riskier ways, and prevent them from accessing services and supports.
• Throughout the exemption period, the federal government will be monitoring and evaluating the implementation of BC’s exemption very closely to help ensure it is contributing to the comprehensive approach to reduce stigma and harms related to substance use and increase access to health and social services for people who use drugs.

IF PRESSED ON THRESHOLDS
• In assessing this exemption request, the dual objectives of the CDSA - to protect public health and maintain public safety – needed to be considered.
• This is a novel approach in Canada and data and evidence on the impact of effective threshold amounts is limited, especially in the context of the increasingly toxic drug supply in Canada and internationally.
• In making the decision to grant an exemption in BC with a 2.5 grams cumulative threshold of the listed drugs, several sources of data were carefully considered, including purchasing and use patterns, public health data, and law enforcement data including drug seizures.
• As the first exemption of its kind in Canada, its implementation will be rigorously monitored and evaluated to measure progress toward objectives and intended outcomes, and to identify unintended consequences and other potential risks.

IF PRESSED ON THE CONCERNS ABOUT THE THRESHOLD AND FENTANYL
• This exemption is one tool within a comprehensive response to the public health crisis that must also include evidence-based prevention efforts, a focus on disrupting drug trafficking, and improved access to treatment and harm reduction services including pharmaceutical-grade alternatives (safer supply) for those at risk of overdose.
• Rigorous monitoring and evaluation of this exemption will be critical, particularly in the face of an increasingly toxic drug supply. The composition and purity of the drug supply varies, including the presence of strong opioids such as fentanyl. Further, the amount of a drug a person may possess does not necessarily equate to the amount they will use at one time.
• Should concerns arise, there are various tools available to address them, up to and including revocation of the exemption.
• Anyone who uses illegal drugs should continue to engage in harm reduction measures to reduce the risk of overdose and death.

IF PRESSED ON NEW REQUESTS FOR EXEMPTIONS FROM OTHER JURISDICTIONS
• Health Canada will carefully and thoroughly review any request for an exemption to allow for the personal possession of controlled substances on a case-by-case basis, including evidence of potential benefits and risks to the health and safety of Canadians.
• The Department will continue to work with provincial and municipal officials on options to address the overdose crisis that respond to local and regional needs and help people who use substances get the support they need.
• While it is not Health Canada’s practice to comment on requests that are currently under review, I can confirm that Health Canada has received a request from Toronto Public Health for a subsection 56(1) exemption under the CDSA so that individuals would not be subject to criminal penalties for the personal possession of drugs. Health Canada is engaged in an iterative review of Toronto’s request.

The overdose crisis is one of the most significant public health crises in Canada in decades. More than 29,052 people in Canada died from opioid-related overdoses between January 2016 and December 2021. This situation has led to increased calls from a range of stakeholders, including chiefs of police, medical officers of health, health organizations, and municipalities, for a comprehensive approach that includes:

• Decriminalizing the personal possession of small amounts of controlled substances;
• Increasing access to pharmaceutical-grade alternatives to the toxic illegal drug supply;
• Investing in a robust system of care for people with substance use disorders; and,
• Monitoring and evaluating to inform an evidence base and identify best practices.

In response to the current context, and a number of calls to take this health-focused approach to substance use further, the Minister of Health established an Expert Task Force on Substance Use in 2021. The Task Force had a mandate to provide independent, expert advice and recommendations on:

• The federal government's drug policy; and,
• Potential alternatives to criminal penalties for the simple possession of controlled substances.

In May 2021, the Task Force published its report on alternatives to criminal penalties, unanimously recommending an end to criminal penalties for the personal possession of controlled substances. Most members also recommended an end to coercive measures such as drug treatment courts.

The Controlled Drugs and Substances Act (CDSA) is one of Canada's federal drug control laws. It provides the legislative framework for the control of drugs that can result in harm when misused or diverted to an illegal market. Under the Act, activities with controlled substances are generally prohibited, unless specifically authorized through the Act’s regulations or an exemption granted under the Act. Section 4(1) of the CDSA makes it a criminal offence to possess most controlled substances.

Given the urgency of the crisis, some stakeholders are seeking an exemption from the CDSA as the fastest mechanism to remove criminal penalties for the personal possession of small amounts of controlled substances and demonstrate action to reduce stigma and increase the likelihood that individuals will seek help without fear of a criminal penalty.

Subsection 56(1) of the CDSA provides the Minister with the authority to exempt persons or substances from the application of any provision of the CDSA or its regulations, if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Each exemption request received is considered on a case-by-case basis, based on the dual public health and public safety objectives of the CDSA.

Factors considered in assessing requests include:

• Scope of the exemption, including definition of personal possession and possession by minors
• Consultations with key populations, including indigenous communities, people who use drugs, partners, law enforcement and stakeholders
• Measures to redirect people who use drugs away from the criminal justice system and towards health and social services
• Readiness and capacity of health and social systems
• Public education and communications plan
• Law enforcement readiness, including the development of training and guidelines
• Operational considerations, such as how key risks will be mitigated
• Monitoring and evaluation plan, including a focus on the impact on populations at increased risks of substance use harms

On May 31, 2022, the Federal Minister of Mental Health and Addictions and Associate Minister of Health granted the province of BC’s request for a subsection 56(1) exemption under the CDSA. To date, Health Canada is in receipt of two other similar exemption requests from the City of Vancouver and Toronto Public Health.

Background on British Columbia’s (BC) Exemption Request

On February 3, 2021, Minister Malcolmson sent a letter to the Minister of Health asking whether the Minister would consider a section 56 exemption for BC to decriminalize the possession of small amounts of controlled substances for personal use. Marking five years since the declaration of the overdose public health crisis, BC publicly announced their intent to submit an official request for a federal exemption to decriminalize personal possession, on April 14, 2021. Consultations were planned with Indigenous partners, peers, law enforcement, municipalities, and public health officials. On November 1, 2021, BC submitted an official subsection 56(1) exemption request to Health Canada. An exemption was granted on May 31, 2022.

Background on the City of Vancouver’s Exemption Request

On December 8, 2020, Kennedy Stewart, Mayor of the City of Vancouver, wrote to the Federal Minister of Health to request an exemption from federal drug control laws to decriminalize personal possession of small amounts of controlled substances in Vancouver. On January 27, 2021, Mayor Stewart announced that the city had begun “formal negotiations” with Health Canada around a possible exemption. On March 1, 2021, the City of Vancouver submitted a preliminary request to Health Canada outlining a “Vancouver Model” to substance use that embraces a health-focused approach to save lives. On April 12, 2021, the City of Vancouver provided its second request to Health Canada with an outline proposing threshold limits on what would constitute personal possession. The submission details specific amounts for personal possession amounts of cocaine, opioids, crack cocaine, amphetamines, and other controlled substances. On May 28, 2021, the City of Vancouver submitted its final request to Health Canada. On June 20, 2022, Vancouver asked that consideration of their request be suspended for the time being. As a result, Health Canada has paused its review of this request.

Background on Toronto Public Health’s Exemption Request

In August 2021, Toronto Public Health (TPH) launched an online consultation on Toronto’s Submission to Health Canada for an Exemption from the CDSA. The preamble states that “Toronto Public Health has initiated a process to request an exemption from the CDSA for the possession of all drugs for personal use (also referred to as decriminalization).” On December 6, 2021, the Toronto Board of Health reiterated its call to request the Federal Minister of Health to use their authority under the CDSA to develop a national framework to permit the possession of certain amounts of controlled substances for personal use; and support the immediate scale up of prevention, harm reduction and treatment services. On January 4, 2022, TPH submitted its preliminary request for a subsection 56(1) exemption under the CDSA related to the personal possession of small amounts of controlled substances within the city’s boundaries. This request remains under review.

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