Six Things That Will Still Be Illegal After British Columbia “Decriminalizes” Drugs

Possession of common “illegal drugs” will soon be legal for adults in most of British Columbia

Starting January 31, 2023, it will be legal for individuals aged 18 years or older to cumulatively possess up to 2.5 grams of cocaine, methamphetamine, MDMA, (3,4-Methyl​enedioxy​methamphetamine), and opioids for personal use in most of British Columbia (BC). In October 2021, the Government of BC submitted a section 56(1) request under the Controlled Drugs and Substances Act (CDSA) to the federal Minister of Health to decriminalize the personal possession of small amounts of some “illegal substances” in BC.

“Illegal substances” commonly refer to any drug that is criminalized under the CDSA, unless authorized. Some illegal substances, with authorization, can be used legally for medical or research purposes (e.g., morphine, fentanyl, ketamine).

In Canada, criminal law is under federal jurisdiction, and the federal government regulates drugs using its criminal law power. Generally, criminal law is consistent across Canada, although enforcement varies by province. Section 56(1) of the CDSA gives the Minister of Health broad power to exempt any persons or class of persons from any provision in the CDSA or its regulations if the Minister thinks the exemption is “necessary for a medical or scientific purpose or is otherwise in the public interest.”

Historically, the federal Minister of Health has issued exemptions to s. 4(1) of the CDSA (the offence commonly known as personal possession) for safe consumption sites, public drug-checking sites, research, and medical access. Some Canadians received personal possession exceptions to access cannabis for medical purposes before it was legalized medicinally. Since August 2020, Canadians have received exemptions to possess psilocybin mushrooms (“magic mushrooms”) for psilocybin-assisted therapy.

The Government of BC’s s. 56(1) CDSA request asked for all individuals in BC 19 years or older to be exempt from the offence of personal possession if they cumulatively possessed up to 4.5 grams of opioids, cocaine, or methamphetamine. After months of negotiations between BC and the federal government, the federal Minister of Health issued a s. 56(1) exemption similar to British Columbia’s request effective January 31, 2023, to January 31, 2026. See Table 1 below for a comparison between s. 56(1) CDSA requests and the granted s. 56(1) exemption.

The exemption applies to everyone aged 18 years or older in BC except for members of the Canadian Armed Forces, contrary to BC’s request to cover everyone aged 19 years or older. The age of majority in BC is 19. The exemption will cover all of BC except for K-12 schools, childcare facilities, airports, inside vehicles operated by minors, and inside Canadian Coast Guard vehicles, whereas BC requested it cover all of BC. The exemption covers MDMA, which was not included in BC’s initial request. MDMA and methamphetamine are often mistaken for each other, as they are both stimulants.

The exemption has a cumulative threshold that is two grams lower than the requested 4.5 grams. The federal government was concerned that the higher threshold would make it too easy for drug dealers to masquerade as casual users. Drug policy advocates have criticized the threshold as too low and risking the criminalization of those who use drugs for personal use. For example, BC reported that the median individual who uses cocaine daily uses five grams every 10 days.       

On May 28, 2021, the City of Vancouver submitted a s. 56(1) CDSA request asking to exempt everyone (including minors) in the city from s. 4(1) if they possessed, for personal use, common opioids, stimulants and psychedelics below certain thresholds. Their request is generally broader in scope than BC’s, covering more illegal drugs and thresholds per type of drug instead of a cumulative threshold. Over a year later, the federal Minister of Health has yet to approve Vancouver’s request, and the Minister is not bound to a statutory deadline. 

BC’s exemption is the broadest s. 56 CDSA exemption issued to date. It is part of a trend toward treating drug use as a public health issue instead of a criminal justice issue. The criminalization of activities surrounding illegal drugs (e.g., possession, manufacturing, and trafficking) has failed to decrease drug use or make illegal drugs less available. BC’s exemption has been widely misreported. Here are six things that will remain illegal after BC “decriminalizes drugs.”

1. Personal possession of drugs not covered by the exemption will still be an offence

It will still be illegal to possess for personal use any drug not covered by the exemption (e.g., ketamine) or cumulatively possess for personal use more than 2.5 grams of the drugs covered in the exemption. However, RCMP Senior Media Relations Officer Kris Clark said RCMP officers will not start carrying scales or drug-testing kits. It may become more difficult for police officers to get reasonable grounds to make a drug arrest as many drugs are white powders and cocaine will be exempt.

1. Personal possession will still be an offence for everyone under 18 years of age

1. Personal possession of any illegal drug will still be an offence in some areas of BC

It will still be illegal to possess any quantity of any illegal drug in a K-12 school, a childcare facility, an airport, a Coast Guard vehicle, or any vehicle if the drug is readily accessible to the driver.

1. “Doctor shopping” will still be an offence

Subsection 4(2) of the CDSA (the offence commonly known as “doctor shopping”) makes it an offence to try and obtain an illegal drug (e.g., morphine) from a healthcare professional without disclosing all previous prescriptions for that drug they received in the last 30 days.

1. All other drug offences will still be in force in BC

It will still be illegal to import, export, manufacture, traffic, or possess for the purpose of trafficking any illegal drug. Trafficking is a very broad offence that includes selling illegal drugs, delivering them, or simply sharing them with friends. It will still be illegal to take any amount of illegal drugs over domestic or international borders—even for personal use.  

1. Personal possession of any illegal drug outside of BC will still be an offence

After the exemption comes into force, possession of one gram of MDMA for personal use will be legal in BC but illegal in next door Alberta. An individual charged with s. 4(1) of the CDSA outside of BC will likely try a s. 15 equality rights challenge under the Canadian Charter of Rights and Freedoms (the Charter). This will likely be difficult given that province or municipality of residence has not been accepted as an analogous ground; moreover, the Supreme Court of Canada recently narrowed s. 15 Charter jurisprudence in R v Sharma, 2022 SCC 39.