Is Ottawa finally ready to decriminalize drug use — or ‘more worried about losing votes than saving lives?’

The 6 am phone call was one Tanya Nayler had been fearing she would get for years.

It was November 2020, and her sister was calling to tell her that their brother Ryan had died of a drug overdose. It was the week before his 35th birthday.

“My mom was worried about that knock on the door for years as well,” Nayler said.

“That’s the fear that a lot of families and friends are living with, with people in their lives who use drugs,” she said, particularly when the drugs they use are contaminated with powerful opioids such as fentanyl.

Ryan Nayler had talked about the legalization of illicit drugs and the decriminalization of their use, but Tanya said she didn’t really understand the issue at the time.

Thinking back to 2020, she can’t help but wonder whether someone in the house where Ryan lived might have called 911 when he overdosed — and maybe saved his life — if there had been no chance of getting arrested themselves.

“I had this perception of how drugs were negatively impacting his life, and didn’t really fully appreciate how the criminalization of the drugs plays a role in that,” she said.

“And so I think that stories explaining that are helpful, and I wish I didn’t have to be learning about it on the other side of it, of my brother’s death.”

A trained lawyer, Nayler is leaving her job with the City of Ottawa and taking a significant pay cut to work in the office of New Democrat MP Gord Johns on his private member’s bill C-216 that would, among other things, decriminalize drug possession for staff use.

“It’s something that I sort of felt compelled to do because of what happened with my brother and what’s happening every day with people’s loved ones,” she said.

“If I can play a role in helping this get passed, it’s a way to honor my brother’s memory.”

As thousands of Canadians continue to die each year from opioid overdoses, Parliament is turning its attention to two pieces of legislation that would attempt to tackle the epidemic.

What advocates say is needed is a complete rethink on the approach to drug use, with decriminalization being one part of that equation, along with a safe drug supply and investments in support and social services.

“We need to have a renaissance when it comes to drug policy in this country,” Johns told the Star.

More than 5,300 opioid-related deaths were recorded in Canada between January and September 2021, according to the latest federal data, primarily in British Columbia, Alberta and Ontario.

Modeling projections released in December by the Public Health Agency of Canada estimated as many as 4,000 Canadians could die of overdoses in the first half of this year.

Yet the government has barely budged on decriminalization, despite ministers repeatedly stating drug use should be primarily treated as a health issue. Its package of justice reforms in Bill C-5 proposes changes to the handling of drug possession cases, but does not eliminate possession as a criminal offence.

“They’re worried about losing votes to the Conservatives, more worried about losing votes than saving lives,” Johns said.

Like the Liberals, the Conservatives said during last year’s election campaign that the opioid crisis should be treated as a health issue and that law enforcement should focus on traffickers, but they also stopped short of calling for the repeal of drug possession offences.

Johns’s bill would also create a procedure to expunge certain drug-related convictions and establish a national strategy on problematic substance use.

A vote on second reading of the bill is expected around June 1, when all eyes will be on the Liberals to see if they at least vote to send the bill to committee, so Parliament can hear from experts and people who use drugs on what would be a fundamental shift in Canada’s drug laws.

“We’re forcing the government to either vote to continue to make this a criminal issue in Canada, or they’re going to back their words up and vote to end the criminalization of people and truly make this a health issue,” Johns said.

As some experts point out, it’s not necessarily a health issue either, as not everyone who uses drugs is in need of treatment.

“How do we then get to people who will need help for their drug use in a way that doesn’t bring police into the equation?” said University of Toronto criminologist Akwasi Owusu-Bempah.

Health Canada has been reviewing requests from British Columbia, Vancouver and Toronto to exempt people in those jurisdictions from possession offences.

The office of Mental Health and Addictions Minister Carolyn Bennett said in a statement to the Star that it is “committed to improving access to safer supply, reducing harms, and using resources to divert people who use drugs away from the criminal justice system and towards a health-based approach.”

The government’s Bill C-5, which will pass with NDP support, would require police and prosecutors to use the discretion they already have to consider diverting drug possession cases out of the courts. This could include sending people to treatment with their consent, or simply letting them go with a warning or no action at all.

The focus in the bill is on “depenalization” — the possible removal of penalties — which is a positive step but still leaves the risk that people who use drugs will come into contact with the police as the criminal offenses remain on the books, said Daniel Bear, professor in the faculty of social and community services at Humber College.

“Decriminalization or depenalization does not increase drug use substantially,” he said. “One of the big fears about going down this pathway is that suddenly everyone will start using drugs and that if there’s no threat of punishment, everyone will just be like, ‘Sure, I’ll try heroin.’ … There is no evidence to support that idea.”

Bill C-5 also doesn’t carry any consequences for police or prosecutors failing to consider alternatives to charges and/or prosecutions.

Research has shown the discretion to pursue alternative measures is not applied equally across all groups, with Black and Indigenous people disproportionately targeted by police and affected by harsher measures, said Owusu-Bempah.

“For me, that’s why repealing (possession offenses) is so important, because you’ll still have a group disproportionately targeted otherwise,” he said.

Being charged with a crime can also be a barrier to getting treatment. Nayler said her brother de ella was denied access to a treatment facility because he had been charged with other offenses not related to drug possession. “It’s hard not to think about how things could have gone differently if he hadn’t been turned away,” she said.

The possibility of charges can be enough to prevent people from seeking help, Nayler said. This despite the fact that the government brought in the Good Samaritan Drug Overdose Act in 2017, which is meant to protect anyone who is having or witnesses an overdose from being charged with possession if they call 911.

“Even with the act, there’s still going to be that reluctance unless there’s a blanket repeal of those possession charges,” she said.

The Public Prosecution Service of Canada, the federal agency that prosecutes drug crimes, issued a directive in 2020 that prosecutors should divert simple possession cases and only focus on “the most serious cases raising public safety concerns.” The Canadian Association of Chiefs of Police has also been calling for decriminalization.

Nonetheless, thousands of people in Ontario alone continue to be charged every year with drug possession.

A total of 5,927 possession cases entered the provincial court system in 2021, representing 2.8 per cent of criminal cases, according to Ontario Court of Justice data. That figure was down slightly from 6,381 cases in 2020, when it was 3.1 per cent of cases.

Even though the data shows the vast majority of those charges are eventually withdrawn — in line with the directive to federal prosecutors — that still means people having interactions with the police and criminal charges hanging over their heads for months, if not longer.

“You could lose your housing, you could lose your family, you could lose your job. The impact is massive,” said Zoë Dodd, co-organizer with the Toronto Overdose Prevention Society. “And it’s a disproportionate number of Black and Indigenous people being charged with those possession charges, so there’s also a racist element to the charges.”

Dodd said resources should be diverted away from police budgets and into services like housing and culturally appropriate programs for people who truly want help, emphasizing that diverting people to treatment is ineffective.

“We don’t want to send people to jail, so we’re going to make them ‘patient-prisoners’ instead?” she said. “We all know that someone’s healing journey needs to start by themselves. We can’t just force them through the courts.”

Ryan Nayler lived with both substance use and bipolar disorders, having started using drugs to cope with the latter condition, Tanya Nayler said. He was interested in treatment at various times, but was never able to access programs in a timely way, leading Tanya to wonder how the government intends to have even more people diverted into treatment without major increases to capacity.

A musician with a master’s degree in library sciences, Ryan was also an animal-rights activist who once spent his savings to fly across the country to advocate against bunnies being culled at the University of Victoria.

“We are 11 months apart, and it’s sort of strange that it’s been more than a year since my brother’s death and now I’m older than my older brother,” she said. “And if I live an average lifespan, I’m going to end up living more than half of my life without my brother.”

Tanya had a child during the pandemic, whom Ryan never got to meet.

“It’s the little losses that will always accumulate for decades,” she said, “and there are thousands of Canadians dealing with that.”

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