The Trudeau government ramped up drug criminalization with this new law

Though the government calls it a “momentous step forward” in the fight against the worsening opioid crisis, new legislation aimed at significantly reducing obstacles to opening supervised injection sites also stands to beef up the criminal enforcement of drug use.

Bill C-37, lauded by the harm reduction community for the improvements it makes to the supervised injection site application process, also contains a range of provisions that expand the criminalization of drug use, increase the powers of law enforcement, and give the health minister the power to swiftly criminalize new substances for up to two years — without doing the normal research or studies first.

Bill C-37 bundles the provisions on supervised injection sites with a number of amendments to the Controlled Drugs and Substances Act that first appeared in Bill C-70, a 2015 Conservative bill that proposed significant changes to the act.

The changes will expand criminal drug prohibitions to include transporting various banned substances, and criminalize the possession and trafficking of substances that could be used to produce drugs (also known as precursors), provisions originally intended to combat the production of methamphetamines. Doing so will extend the impact of mandatory minimum sentences, which are already written into the law.

To complement those changes, the law makes it so that Canadians will now require a license to own and operate pill presses or encapsulators.

More significantly, the government is giving border guards the power to open international mail coming into Canada, weighing less than 30 grams, if they believe the letter or parcel contains money, drugs, or basically anything on which the applicable duties haven’t been paid.

Public Safety Minister Ralph Goodale justified the new power by saying that “a 30 gram package can include enough opioids to kill 15,000 people,” lauding that Canada’s border guards “will now have the authority to inspect all packages of whatever size,” so long as there’s a reasonable belief the package or letter runs afoul of some law.

Bill C-37 also gives the health minister the power to temporarily “schedule” any substance that “may pose a risk to public health or safety” to the Controlled Drug and Substance Act, for up to two years.

This gives the health minister the power to make substances illegal before Health Canada has “time to collect and assess additional information on the substance, and determine the full nature of the risks it poses to health and safety,” according to a Health Canada spokesperson, who added that, “temporary scheduling provides controls for potentially dangerous substances under the [Controlled Drugs and Substances Act] while giving Health Canada time to collect and assess additional information on the substance, and determine the full nature of the risks it poses to health and safety.”

Previously, scheduling new drugs required a consultation process, which could often be slow, normally taking between 18 and 24 months. Even in unique cases, like last year when Health Canada moved quickly to to schedule a potent substance called W-18, the expedited consultation process took three-and-a-half months.

In a Senate debate last summer, Conservative Senator Vernon White criticized that Canada did not have a process of temporary emergency scheduling, so that “if there’s a problem on a Friday night, we could deal with it next Wednesday.” C-37 enshrines this into law, giving the health minister the ability to schedule drugs before research or evidence is produced.

Health Minister Jane Philpott justified the new powers by citing carfentanil, a more powerful cousin of fentanyl. “There are insufficient tools to be able to take some action on that,” she told reporters.

But expanding scheduling power won’t do much to aid in the fight against fentanyl and carfentanil specifically, given that both substances, as well as their derivatives and analogs, have been listed substances since the drug regulation act first became law in 1997.

At a policy convention in 2016, the Liberal Party voted to support “regulation of access to recreational and prescription drugs” and criminal justice reforms that prioritize treatment and rehabilitation. The Liberal government, however, has repeatedly rejected calls to decriminalize or regulate drugs, apart from marijuana.

But the harm reduction community has been uneasy, conflicted about a bill that both helps in their fight against the overdose crisis but they believe will worsen its root causes.

“The one thing that I keep saying to people in the overdose crisis, the one thing we need to look out for, is the government using this [opioid] crisis to ramp up the drug war,” says Zoe Dodd, a frontline harm reduction worker at the South Riverdale Community Health Centre in Toronto. “Which essentially is what Bill C-37 does.”

She says people have not critiqued some aspects of the bill publicly because they are focused on getting more supervised injection sites open.

“It’s very sneaky in this way that it’s like, ‘we’re going to distract you, because you’re knee deep in people dying,’ […] that’s going to distract you from commenting or recognizing the other aspects of this bill that will criminalize people who use drugs, that contribute to the overdose crisis,” says Dodd.

“If prohibition failed for the last 60 years, it’s still going to fail for the next couple of years. In C-37, you find some key elements of that,” says Jean-François Mary, general director of L’Association Québécoise Pour la Promotion de la Santé des Personnes Utilisatrices de Drogues, who says C-37 is full of “drug war rhetoric.”

Marilou Gagnon says the government needs to change course, or else the community will “call them on it.”

“If you’re responsible for health and you’re punishing people who need health care, there’s a big tension there,” says Gagnon, who is an associate professor in nursing at the University of Ottawa and founder of the Coalition of Nurses and Nursing Students for Supervised Injection Services.

C-37 became law in mid-May, although it received support from neither the Conservatives — who supported the criminal reforms, having originally written them, but opposed expanding the prevalence of safe injection sites — and the NDP, who felt that the bill didn’t go far enough.