Decriminalization or police mission creep? Police involvement in BC's decriminalization framework

This article was originally published in the International Journal of Drug Policy by Liam Michaud, Jenn McDermid, Aaron Bailey & Tyson Singh Kelsall. Some minor adaptions made here for readability.

The unregulated drug supply toxicity crisis is an urgent public health emergency in British Columbia (BC), Canada. The contaminated supply killed more than 14,000 people in BC between April 2016 and January 2024. Drug toxicity is the leading cause of death among people aged 10–59.

Dominant policy approaches to drugs and drug use, rooted in prohibition and criminalization, have been established as primary drivers of the crisis. These policy approaches have shaped the contamination of the unregulated drug supply, by destabilizing it through law enforcement raids and seizures in the absence of a regulated alternative, despite continuous demand.

This has collectively led to drugs of unknown potency and composition overtaking the market, as well as fueling fatal and non-fatal overdose. The criminalization of drug users has likewise meant people, more often those who are poor, Indigenous, or otherwise racialized, are forced into judicial and/or carceral systems for possessing a substance and/or for related social practices, or under the pretense of the same.

These intersecting forms of criminalization reinforce anti-drug user sentiment, including systems of social exclusion and marginalization, which can increase experiences of violence and isolation, and entrench some drug users in cycles of poverty. Arrests and other police interactions stemming from drug user criminalization have been found to negatively impact safer use and harm reduction practices, as well as create barriers to accessing health, harm reduction and social services, all of which increase chances of overdose.

In Canada, drug laws are determined at the federal level. Accordingly, local jurisdictions typically seek approval from the federal government to reform existing drug laws. In 2023, the federal government approved the province of BC's request for a section 56(1) exemption from the nationwide Controlled Drug and Substances Act (CDSA) for a three-year decriminalization pilot. Under this exemption, BC became the first jurisdiction to remove criminal charges for the personal possession of opioids, crack and powdered cocaine, methamphetamine, and MDMA, in cases where the total amount held by an individual was a combined 2.5 g or less, as of January 2023. The BC government has labeled this a “decriminalization framework," where people aged 18 and older are able to legally possess small amounts of these substances, while procurement, production, sharing, sales and/or retail of all illicit drugs remain a criminal offence. There are also a number of spatial exemptions to the model, which are listed in Table 1 (below). Although the BC government references overdose in their original application, their chosen framework does not address the supply of drugs directly, and therefore is not expected to substantially impact the unregulated drug toxicity crisis from the supply side, which is what is driving overdoses; however, in theory, decriminalization may reduce some associated health-related harms resulting from criminalization.

Table 1. Spatial exemptions to BC's decriminalization model as of March 1 2023.

Perspectives on the impacts of decriminalization have been mixed. Some have pointed to its implementation in BC as an important stepping stone that could be scaled up to prioritize health, safety, and human rights of people who use drugs. Others however, have noted critical limitations of the framework, suggesting that potential gains may be minimal, with some potentially harmful consequences for drug users and others. Many have noted that the framework has an arbitrarily low threshold quantity that does not reflect community consultation or available evidence on procurement and use patterns. The framework has been criticized for embedding policing within it, including in determining drug amounts during interactions, and conducting social service referrals through the distribution of resource cards; directing police to target people working in the unregulated drug market, including those trading, sharing, and selling drugs; and a potential distraction from meaningful action to address the toxic drug supply.

This critical appraisal of the role of policing organizations in development and implementation of the BC decriminalization framework from up until 25 April 2024, recognizing that this remains a shifting policy terrain. By charting the ways law enforcement asserted their presence in the construction of a purportedly health-oriented policy, we raise concerns about police discretion and the broadening of the formal scope of policing. Furthermore, this commentary aims to highlight the processes through which ostensibly progressive health and drug policy initiatives are subjected to carceral logics and political agendas that sustain, rather than restrict, the targeting and criminalization of drug users.

Examination of BC's decriminalization framework is urgent, as one third of the pilot's lifespan passed as of February 2024; and other jurisdictions are considering decriminalization policies. Furthermore, outside of one data “snapshot” released by the BC government, and concerns have been raised about the extent of which negative policing impacts were obscured, analysis of the pilot has been limited.

“Adaptive criminalization,” mission creep, and carceral net widening

Mission creep is a concept used to examine criminal legal institutions, and refers to the adoption or appropriation of functions traditionally regarded as the responsibility or jurisdiction of other institutions, or an expansion of the vocation of a particular governance body that extends beyond its initial focus or mandate.

Law enforcement mission creep is often understood as extending the reach of criminal legal institutions into additional arenas of social life (e.g. the management of behavioral issues in schools). As the mission of policing institutions expands, their roles in the governance for a range of social issues becomes naturalized, and opportunities for criminalization (or the carceral “net”) is widened, subjecting greater numbers of people to surveillance and/or punishment. The expansion of the practices of criminal legal professionals into other civil systems such as child protection or healthcare has been referred to as “adaptive criminalization." Net widening more generally refers to circumstances that arise in the context of an alternative or intermediate sanction that have the effect of subjecting a larger group of people to criminal legal governance. For instance, electronic monitoring, alternatives to pre-trial detention, and drug courts have all been subject to critique for their net widening effects.

Net widening and mission creep often result in novel forms of inter-institutional coordination and collaboration, as in the case of mental health joint responder teams that pair social service workers with police. The resulting forms of professional hybridity, often subordinate social or therapeutic objectives to criminal legal logics and objectives, in part due to the weight of socio-legal authority offered to law enforcement actors, which can generate forms of “penal medicine." The stakes of such arrangements, broadly speaking, include increased encounters with enforcement actors and exposure to corresponding harms including arrest and/or incarceration as well as additional barriers to accessing health and social services for criminalized groups due to the possible consequence of arrest, surveillance, or other negative encounters. All three of these overlapping, carceral functions are embedded in BC's decriminalization framework.

Police power and involvement in “decriminalization”

Police were central to BC's decriminalization framework from the start. In the federal government “Letter of Requirements” to the province, there were multiple obligations to law enforcement organizations, including a mandate that “law enforcement will, at a minimum, provide people found in possession of small amounts of illegal substances…with information about how to access local health and social supports;” that the BC government “must undertake ongoing engagement with…law enforcement” on implementation; and that the BC Ministry of Mental Health and Addictions (MMHA) must “develop a range of training resources” for police and “continue to support law enforcement in addressing organized crime."

As mandated by the letter, police were involved in consultation, predominantly represented by the BC Association of Police Chiefs (BCAPC). Internal correspondence shows that the BCAPC recommended a total of 1g of personal possession to be decriminalized, advocated against a cumulative 4.5g threshold, and eventually agreed to support a 2.5g threshold. A list of consequences the BCACP provided as reasons to not support a 4.5 g threshold are presented verbatim in Table 2 (below). The 2.5 g threshold, notably, was not based on reputable policy analysis, ignored extensive consultation conducted during a concurrent application by the City of Vancouver, and did not reflect province-wide use and procurement patterns. The mayor of Vancouver at the time of application, Kennedy Stewart, did support the 2.5g threshold. In his book, Stewart writes that “on many occasions,” he explained to “drug user advocates that the success of the application depended on maintaining the support of the Vancouver Police Department (VPD), and that the VPD would withdraw its support…if carry thresholds increased.” Policing agencies were likewise consulted heavily by the federal level during the 15-month deliberation process from February 2021 and May 2022, in which the 4.5g threshold requested by the province was further lowered to 2.5g.

Table 2. Potential consequences that the BC Association of Police Chiefs listed as reasons for not supporting a 4.5 g threshold, instead advocating for a decreased threshold amount.

The insistence among police on maintaining a low threshold amount appears motivated by the desire to retain some use of possession charges (e.g., in above-threshold amounts) as a “tool” to the greatest extent possible for other enforcement purposes such as order maintenance policing (e.g. displacement and dispersal) and/or intelligence gathering. The decriminalization framework does not automatically result in charges for drugs found in above-threshold amounts, requiring police to employ their discretion when deciding whether or not to seek charges. Such a determination requires an understanding of tolerance and social context of the person in question, an assessment police are unqualified to conduct. It remains to be measured or examined whether police are applying alternative charges in similar situations, such as possession for the purposes of trafficking or trafficking, in order to sustain an approach to managing drug possession that results in drug users’ ongoing exposure to criminalization.

Under decriminalization, police are empowered to refer people to health and social services using “resource cards,” a form of mission creep through task shifting that further expands local law enforcement scope of practice and discretionary purview. Moreover, for these partnerships, $12.4 million (CAD) of the MMHA budget was set aside for healthcare staff to supplement police work by acting as liaisons between healthcare and police forces, as well as develop training materials outside of formal provincial and municipal police budgets for the duration of the pilot. Furthermore, even after receiving the minimal training to determine what 2.5 g of various drugs can look like, it is unlikely an officer, without other experiential knowledge of drugs, would have a thorough understanding of the overall relative weights and characteristics of unregulated substances. Similar diversionary schemes to social services have been characterized as a form of net widening. These shifts are illustrative examples of deepening coordination and collaboration between criminal, legal and health institutions.

Vancouver: public relations policing

The VPD provide a crucial example in how policing bodies adapt to position themselves as solutions to a range of real and perceived problems and general escalating social insecurity, a critical reputation management strategy in the context of an ongoing crisis of legitimacy to policing institutions. The mission creep of policing into Vancouver's health and social service sphere is not a new phenomena. For example, the 2022 municipal election centred primarily around the conflation of mental health with social disorder. The winning party, “A Better City,” largely campaigned on a promise to hire 100 nurses and 100 police in an attempt to bolster a pre-existing police-nurse partnership that attends to “non-emergency mental health calls,” initiatives which have been the object of critique for causing harm to those in crisis, not least of which is the inability of policing to properly support people experiencing a mental health crisis, threats of criminalization, and potential for escalation and discriminatory practice by officers.

Growth of police-healthcare partnerships are components of adaptive campaigns carried out by police departments across BC to neutralize negative opinions of police, allowing for police to assume roles in situations that could otherwise be organized around support and care. While many have noted that healthcare systems themselves tend to be embedded with various forms of carceral logic, reinforcing this within a model specifically purported to lessen criminalization presents a contradiction between the stated principles of decriminalization and the implementation of BC's framework. In Vancouver, VPD have attempted to shift public perception by branding themselves as proponents of progressive drug policy, despite a long-documented history of actively undermining harm reduction efforts on the ground including targeted enforcement directed at people around safe consumption sites, practices which are ongoing. Since 2022, several police forces in BC and across Canada have invested explicitly in public relations materials to advance pro-police messaging. Some have linked this policing strategy locally and internationally to the consciousness raising generated by Black Lives Matter and “defund the police” social movements, which have sharpened the focus of critique regarding the role (if any) of police in society.

The VPD have used similar public relations tactics to superficially align themselves with the sex work community. Through the adoption of Sex Work Enforcement Guidelines, the VPD purport to employ a “trauma-informed” approach to policing sex work, prioritizing the “the safety and well-being of those engaged in [sex work]” over criminalization, including social service referrals. Despite the stated aims of the Sex Work Enforcement Guidelines, VPD practices continue to undermine sex workers’ safety, including by targeting “demand-side” criminalization, heightening workers’ chances of experiencing violence, despite calls from the community for the opposite.

This superficial alignment disregards the ways in which police have historically undermined drug policy reforms, especially in instances where their discretion is maintained or expanded. For example, following the introduction of the Good Samaritan Drug Overdose Act in 2017, police continued to arrest individuals with drugs on their person at the scene of an overdose, despite the fact that the Act should provide protection from simple possession charges at overdose events.

Policing institutions have effectively positioned themselves as key players in health and social supports for drug use as a means of justifying annual budget increases. In 2024, Vancouver has allocated $440 million to police services, 20% of the city's total outgoing expenses and an 8% total increase from 2023. Alongside budget increases, the VPD have outlined plans to “support harm reduction and substance use(rs),” working in “partnership” with community service providers to “maximize both individual and community well-being” and advocating for “harm reduction and treatment solutions." This narrative, constructed by the VPD, has ensured that they remain essential actors in health and harm reduction programming and drug policy decisions. By embedding police as central in the decriminalization framework, BCs pilot ensures the established problems and oftentimes arbitrariness of law enforcement discretion remains present both in drug users’ lives and state-level drug policy reforms, effectively undoing the stated goals of decriminalization and facilitating the mission creep of policing into healthcare provision.

Uneven experiences of policing and the decriminalization model in rural and remote communities

The CDSA exemption granted to BC applies province-wide, and experiences of the decriminalization model can vary widely by jurisdiction. Internal government correspondence and documents demonstrate the ways these differences are especially apparent in rural and remote communities, failing to adequately address the realities of drug users in these parts of the province. For example, the heightened visibility of many rural and remote drug users (e.g., due to the smaller population, more tight-knit communities) meant that some continued to feel targeted by police even with the implementation of decriminalization, often undermining potentially positive outcomes associated with decriminalization. These concerns align with criticisms that BC's model could put rural and remote drug users at risk of continued drug-related criminalization, generating a net widening effect as new, distinct penalties are more frequently levied unevenly against already over-criminalized individuals and communities, illustrative of adaptive criminalization.

As noted by Ali et al. and McAdam et al., the 2.5 g cumulative threshold can incentivize more frequent, smaller purchases for non-urban drug users, placing them at greater risk of police contact. For many living in these areas, it is common to travel long distances in order to procure drugs, making buying in bulk more realistic and economical. Without the relative anonymity afforded to drug users living in urban areas, many rural and remote drug users will continue to be targeted by police and risk penalization when not adhering to the inadequate threshold. For example, given that there are often fewer options in terms of from who/where rural and remote drug users may purchase their supply, the police may target specific areas in order to target drug users post-purchase.

Lack of accessible harm reduction and health services in many rural and remote communities, and the mission creep of the police into healthcare, further increases rural and remote drug users’ likelihood of interacting with police. Across BC, regional health governance bodies and some police forces highlighted that while the aim of decriminalization is to manage drug use as a “health” rather than “criminal” issue, there were often very few, or no, harm reduction or health services to actually direct rural and remote communities to. Moreover, police in rural and remote communities expressed concern in their communication with health authorities around differences in opinion in “how to address PWUD or issues related to substance use,” suggesting a reluctance to embrace the decriminalization framework (e.g., due to the lack of alternative resources or perceived mechanisms to respond to drug use(rs), ideological differences among individual police officers, etc.).

Additionally, while many drug users in rural and remote areas have explicitly spoken to the police violence, harassment and profiling experienced by individuals in their communities, as well as raised concerns about the involvement of police within the framework, which will ensure police control over narratives related to decriminalization's outcomes. Rural and remote drug users vocalized this concern to health authorities speaking especially to the ways in which the police have inaccurately framed the increase of homelessness in many communities as stemming from the implementation of decriminalization. Notably, such narratives add fuel to the growing moral panic, which scapegoats drug users for increasing social and economic precarity, an experience often more acute for drug users living in smaller communities.

Indigenous organizations and communities have likewise shared concerns since the rollout of decriminalization–that “the B.C. model for decriminalization does not meet the needs or truths of Indigenous drug users." While it is widely documented that Indigenous drug users across BC are systemically subject to targeted, discriminatory and anti-Indigenous policing practices, decriminalization's limited reach, restrictions on public use, and the 2.5g threshold create the conditions under which Indigenous drug users are likely to continue to face disproportionate harms.

With respect to the threshold in particular, the BC First Nations Justice Council (BCFNJC), the Union of British Columbia Indian Chiefs, and the BC Association of Aboriginal Friendship Centres (BCAAFC) have all forwarded that the threshold is drastically low, posing particular dangers for rural and remote Indigenous drug users who often have to travel long distances to purchase their supply. The BCAAFC emphasized that the threshold, “perpetuates the historical and contemporary forms of colonial violence exerted on Indigenous peoples." The BCFNJC echoed this sentiment, stating “decriminalization of 2.5g appears to be focused on the urban context and has not factored in the ongoing crisis in remote communities."

Interrogating linkage to care role through service referrals

The solicitation of and deference to policing institutions by the federal government and provincial health authorities in the development and implementation of the decriminalization framework, shows how processes of mission creep and net widening do not solely occur at the initiative of policing bodies, but also at the direction of other governing institutions. Efforts to position police as amenable to exercising ‘health’ functions and linking people to care through referrals by the decriminalization framework raises several key problems that have come to surface in the context of the rollout.

First, the assumptions embedded within the federal requirements of the decriminalization framework, that police are appropriate sources of information regarding available health services or social supports, are not grounded in the available public health or criminological evidence bases. For example, in another jurisdiction, Wagner et al. demonstrated that people who received post-overdose support services from police-social worker joint responder teams raised concerns about privacy and informed consent, inopportune timing, the insufficiency of referrals provided, a lack of trust in services recommended by individuals in a position of coercive authority, and failure to account for the structural deficits of existing services, notably, availability and long waits, i.e., “waitlists have become death lists."

The second key problem in police-involved linkage to care schemes is the extent to which this new referral role could be exploited to initiate contact with individuals. Under the framework police are instructed to not use the cards to initiate contact with people; however, historical patterns and early government reports suggest that is the case, raising further questions regarding the extent that net widening can unfold through mechanisms alleging support and care.

Third stems from the assumption that police will adhere to the requirements and spirit of a decriminalization framework. Despite the existence of needle and syringe distribution programs as a public health initiative for over thirty years, 31% of drug users across B.C. reported having their harm reduction supplies seized in police interactions in the previous three months in a 2022–2023 survey conducted by the BC CDC, despite directives and other efforts prohibiting such conduct. Police non-adherence to the Good Samaritan law – as well as its undermining in practice – continues to characterize peoples’ experience of first responders at overdose events. Moreover, although BC's framework in theory prohibits the seizure of decriminalized drugs in below-threshold amounts due to recognized harms and subsequent overdose risks, raw counts of seizures by the VPD suggests below 2.5 g increased following the implementation of the decriminalization policy. All of this underscores the extent that police institutions carry systemic and fiscal conflicts of interest in reducing the criminalization of people who use substances.

Conclusion

Police budgets have long relied on drug prohibition enforcement as justification for their share of public resources and authority. This commentary argues that the central involvement of police in the development of the framework and its subsequent implementation has resulted in forms of carceral net-widening and mission creep that risk sustaining criminalization and prohibition-related harms, as well as importing or “smuggling” carceral and drug war logics into health spheres. However, as a growing movement advocates for drug war logics to be abandoned in the face of an ongoing public health emergency, the expansion of police scope of practice and extreme deference to the policy preferences of policing institutions has instead deepened.

The substantial gap between the reputation management strategies employed by policing bodies, and the on-the-ground harms resulting from police practices as experienced by drug users should provide caution to other jurisdictions considering law enforcement involvement in their decriminalization frameworks. This is something drug users in Portugal have long cautioned about in regard to the decriminalization model in place there, which shifted incarceration for possession to administrative penalties and/or coerced drug treatment in many cases, rather than the complete removal of drug use from harmful carceral logics. As BC contends with a decriminalization framework in flux, further steps should include removal of police from the governance of drug use, possession, sharing and procurement, rather than further embedding law enforcement and criminalization into public policies that could otherwise be congruent with the advancement of drug user health.