Letter of Requirements to support BC’s exemption

Dear Minister Malcolmson,

This letter is further to the subsection 56 (1) exemption granted under the Controlled Drugs and Substances Act (CDSA) for a period of three years, effective January 31, 2023, so that adults aged 18 years or older within the Province of British Columbia (BC) will not be subject to criminal charges for the possession of small amounts of opioids, cocaine, methamphetamine, and MDMA for personal use.

As we both know all too well, the overdose crisis is a complex health and social issue that requires a comprehensive response. An exemption under the CDSA is one of the many tools that can be considered as part of a multi-faceted approach to stem the tide of this crisis. In this regard, given the continued toxicity of the illegal drug supply, it is essential for us to continue to increase access to a pharmaceutical-grade supply of controlled substances for people at risk of overdose in the province. It is also essential for us to strengthen complementary initiatives to address the social determinants of health such as improved access to social housing, mental health supports and services, and education and employment opportunities. These and other actions, which BC committed to in its request, are critical components of a comprehensive response to the overdose crisis and will be key to supporting the successful implementation of this exemption.

This letter lays out details further to the commitments made by the province to support the successful implementation of the exemption, specifically in the areas of:

I - Alternative Measures
II - Meaningful and Ongoing Engagement with Partners and Stakeholders
III - Indigenous Engagement
IV - Readiness and capacity of the health and social systems
V - Communications and public education
VI - Law enforcement readiness
VII - Monitoring, Applied Research and Evaluation

Information on BC's plans with respect to these elements will need to be shared with Health Canada prior to the date the exemption comes into effect, and follow-through on these commitments will be monitored closely to ensure the exemption is meeting its objectives and remains in the public interest.

BC Submission – Commitment to Comprehensive Approach

The request from BC for a subsection 56 (1) exemption indicates that exempting adults from the possession offence is an important step in meaningfully addressing the overdose crisis, reducing stigma related to substance use and substance use disorder that can lead people who use drugs to avoid life-saving services, and lessening the harms associated with substance use. As indicated in the submission, the exemption request was not made in isolation, but as part of a comprehensive approach led by the BC Ministry of Mental Health and Addictions (MMHA), through cross-government initiatives and investments in other programs and services related to safer supply, acute case management, treatment, and harm reduction.

I - Alternative Measures

As noted in the request, the Province has and is committed to continuing to expand its harm reduction services, health and social services and addiction treatment services to ensure that individuals who desire treatment or other supports can access them when needed. The request indicates that law enforcement will, at a minimum, provide people found in possession of small amounts of illegal substances listed in the exemption with information about how to access local health and social supports. The Province will need to work closely with health authorities to ensure information on available services is comprehensive and up to date and that law enforcement are aware of readily accessible options and feel confident in assisting with referral when asked. Police will also need to have access to harm reduction supplies (e.g. naloxone) to provide to individuals where appropriate, recognizing that this commitment was made subject to funding and necessary policy arrangements. In addition to these measures, leveraging other opportunities to support people in accessing treatment and other support services when they are ready will also be important.

II - Meaningful and Ongoing Engagement with Partners and Stakeholders

I appreciate the consultation BC has undertaken on an urgent basis to inform all components of the request. Moving forward, BC must continue to engage with a range of stakeholder groups representing a variety of viewpoints, throughout all stages of the process to address relevant concerns and inform implementation. In particular, BC must undertake ongoing engagement with people who use drugs, law enforcement, racialized and diverse communities, youth, business improvement associations, municipalities and other key stakeholders to identify the meaningful public health and public safety indicators, as well as throughout implementation, monitoring and evaluation phases of the exemption.

III - Indigenous Engagement

As indicated in the Indigenous Consultation Approach and Plan submitted to Health Canada, the Province will uphold the spirit and principles of reconciliation under the BC Declaration on the Rights of Indigenous Peoples Act, and continue to consult with Indigenous governments, communities, partners and experts when working towards the implementation of the exemption. As the plan indicates, it is essential that BC MMHA engage with individual Indigenous communities through town hall discussions and one-on-one meetings as needed and provide Health Canada with updates following these sessions, and prior to coming into effect of the exemption. In addition to discussion summaries (as indicated in the plan), how BC MMHA is working with Indigenous governments, communities, partners and experts on implementation in a safe, respectful, and culturally informed manner will be important. There will need to be ongoing engagement and inclusion of Indigenous communities, partners and experts, including self-governing Indigenous governments, First Nations Health Authority, First Nations Health Council, First Nations Justice Council, BC Assembly of First Nations, Métis Nation of BC, and the BC Association of Aboriginal Friendship Centres throughout the duration of the exemption, leading up to and following its implementation.

IV - Readiness and capacity of the health and social systems

Efforts to improve the health and social systems are important for supporting the successful implementation of the exemption. As noted in the request, there is significant work underway to build up BC's substance use system of care. This includes a continuum of substance use services through Regional Health Authorities, which range from specialized treatment to harm reduction programming and safer supply programs that provide pharmaceutical alternatives to the illegal drug supply. BC will need to work with the regional health authorities and First Nations Health Authority to leverage all resources in their communities to plan and deliver services to improve appropriate pathways to care for those that need and/or want access. This includes particular efforts to meet the unique needs of specific regions and communities such as youth, Indigenous Peoples, racialized people, people living in rural and remote environments, and any other communities facing unique barriers in accessing timely health and social services. Finally, the Province will need to continue to work with all Health Authorities including First Nations Health Authority to monitor capacity and access, through regular monitoring and evaluation, including the access to safer supply and safe consumption sites and other harm reduction services.

V - Communications and public education

As noted in BC's request, the MMHA has a public engagement team and dedicated budget to develop and run public campaigns to support overdose awareness. The request indicates that these existing resources will be leveraged to launch an education and awareness campaign to inform the public about the exemption. The exemption provides for a period to prepare for implementation, during which time BC must raise public awareness and ensure understanding of the exemption's scope as well as the date it comes into effect and its duration, and the commitment to monitoring and evaluation.

During the pre-implementation phase, BC has committed to develop a comprehensive public education and communications plan, which will need to be shared with Health Canada for comment and review before the pre-implementation period is complete to ensure we are proceeding in a consistent approach. Communications products will need to raise awareness of the exemption and what it means, including how the exemption intersects with other laws. Since youth, under the age of 18, are not included in the exemption, special consideration must be given to communications and public education for youth audiences on the exemption including, but not limited to, how possession by youth is addressed under the law and supports and services available to youth who use substances.

Further, the Province will need to continue to communicate and raise awareness on the ongoing risks related to the toxic illegal drug supply. Communication products must be clear and available in all languages most commonly spoken in BC, including both official languages. We look forward to BC MMHA working in tandem with Health Canada officials to ensure communications plans and products are coordinated and reviewed before communicating about the exemption. Finally, communications and public education activities will need to be evaluated to determine whether they are clear, and having their intended impact in contributing to individual understanding of the exemption.

VI - Law enforcement readiness

As noted in the request, the BC MMHA will work with its policing partners and Health Authorities to develop a range of training resources to support knowledge and full implementation of the framework amongst front-line police officers across the Province. Training resources should include, but not be limited to, supporting law enforcement in applying the exemption in a variety of scenarios as well as understanding how the exemption intersects with existing laws and guidance, including Guideline 5.13 of the Public Prosecution Service of Canada Deskbook on the "Prosecution of Possession of Controlled Substances Contrary to s.4(1) of the Controlled Drugs and Substances Act", which remains in effect. As noted in a follow-up submission to Health Canada, a Law Enforcement Implementation Working Group will be formed to support the development and execution of enforcement guidance, communication tools, curriculum, training plans, and other activities required to support law enforcement. BC MMHA must continue to work closely with law enforcement partners throughout the entire process to address relevant concerns, to ensure effective implementation and risk mitigation prior to, during and following implementation, and to continue to support law enforcement in addressing organized crime.

VII - Monitoring, Applied Research and Evaluation

As noted in the request, the BC MMHA will lead the oversight, monitoring, and evaluation of the exemption, including working with internal and external partners to monitor progress towards objectives, intended outcomes, unintended consequences, risks, and risk mitigation strategies on an ongoing basis. In consultation with other partners, including Health Canada, BC will need to identify the indicators, the data sources and the frequency with which data will be collected to monitor and measure progress against the defined objectives, short, medium and long-term expected outcomes/impacts. All relevant and available data sets will need to be used to support these efforts and data collection will need to start immediately upon the granting of the exemption to establish a baseline. A monthly dashboard must include, at a minimum, indicators for the following themes: access to harm reduction, health, social and economic issues, and criminal justice. For all indicators, disaggregated data based on age, gender, race, and location, will be essential to understanding the impact of the exemption on at-risk populations. Strong data and evidence is necessary to ensure the exemption is meeting its goals and identifying any unintended negative consequences that must be addressed.

In addition, a robust, arm's length, and transparent evaluation will need to be undertaken, guided by monitoring and evaluating the risks identified by the BC MMHA as part of its request. This evaluation must also consider age, gender, race, and location in the implementation of the exemption. Finally, the interpretation of the data, evaluation and applied research will assess whether expected outcomes of the exemption are being met or whether unintended negative consequences have emerged.

I understand that a provincial Decriminalization Research and Evaluation Committee has been convened. This Committee will need to inform the monitoring, applied research and evaluation models which should be in place prior to the coming into force of the exemption.

During the pre-implementation period, BC will need to provide updates to Health Canada on a monthly basis on the development of the monitoring, applied research and evaluation plan, and submit a final version of the plan by the end of the pre-implementation period. The plan must include timelines, indicators based on risks and intended outcomes, data collection and analysis methods, and any other information that will be needed to effectively learn from the exemption. A plan to collect baseline data will need to be in place as soon as possible, with baseline measures for each indicator captured, prior to implementation, where possible.

To ensure the exemption is implemented as intended and to capture early warning for any issues that may arise, there will need to be regular (minimum monthly) monitoring and reporting of the disaggregated dashboard data and key activities being undertaken by BC MMHA and its partners (e.g. law enforcement, health and social services, etc.), which will need to be shared with Health Canada in real-time for the duration of the exemption, so that we may collectively respond to any unintended consequences in a timely manner.

Governance

Given that this exemption is the first of its kind in Canada and taking into consideration all other elements of BC's comprehensive response to the overdose crisis, it will be important to have a mechanism in place to support and facilitate robust knowledge exchange on the impacts and challenges of these actions. In the spirit of collaboration, I look forward to discussing with you a potential governance structure between our governments. In addition to a federal and BC government Deputy Minister Committee, this could also include Ministers from relevant federal and BC government ministries and agencies, to share knowledge regarding BC's comprehensive approach to address the overdose crisis, including this exemption, informed by key data, applied research findings and lessons learned.

In conclusion, I want to emphasize the importance of the Province of BC undertaking and fully committing to the actions in their application and highlighted above. I know that you understand how important it will be for the Information on BC's plans with respect to the elements listed above to be shared with Health Canada prior to the date the exemption comes into effect, with updates provided on a monthly basis (at minimum) to Health Canada through the pre-implementation period. The data and evidence derived from the implementation of these actions will support in monitoring progress towards the public health and public safety objectives of the CDSA and help determine whether the exemption is serving the public interest.

As the first Section 56 exemption of its kind, we will be monitoring it rigorously to gather information to inform any adjustments to it that may be needed. There are various tools available to address concerns and unintended consequences that may arise. In the event that the data shows that the exemption in no longer in the public interest, reconsideration of the exemption could include revocation and the need to submit a revised application.

If BC plans to move forward with a phased approach to exempting adults from the possession offence as specified in the request, please note that any future exemption requests will be assessed on a case-by-case basis.

I want to thank the Province of BC for its leadership to address the overdose crisis and help save lives. We need to act on all options to stem the tide of this crisis. We are committed to working closely with the Province of BC on a comprehensive public health approach to this crisis.

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