Letter of Requirements to support BC’s exemption

Dear Minister Whiteside,

This letter is further to your requested amendment, received April 26, 2024, to add additional exceptions to the subsection 56(1) exemption in British Columbia (B.C.) related to personal possession of certain illegal drugs, granted under the Controlled Drugs and Substances Act (CDSA), which came into effect on January 31, 2023.

The CDSA has dual objectives to protect public health and maintain public safety. I recognize the public safety concerns that you, stakeholders, and members of the public in British Columbia have raised and am granting your request so that law enforcement have the additional tools they need. Please note that further Terms and Conditions are set out in the attached exemption letter. Regarding your request that certain health care clinics remain exempted, I am granting this request but it will be BC’s responsibility to designate health care clinics as appropriate and for determining any rules for consumption within shelters. With respect to overdose prevention and drug checking sites, a class exemption already exists that the province of BC can use that is specifically designed for these services.

As you know, the federal government shares BC’s commitment to an approach that balances public health and public safety objectives. This new exemption gives law enforcement additional tools to address public safety concerns related to public drug use when they arise. But we both know that it is also essential for us to strengthen complementary initiatives to address the social determinants of health, as set out in the original Letter of Requirements in May 2022. As you know, these additional actions, which BC committed to in its original request and reiterated in this request, are critical to saving lives and supporting people in their journey to treatment and recovery.

There are 7 key themes outlined in the Letter of Requirements:

1. Alternative Measures
2. Meaningful and Ongoing Engagement with Partners and Stakeholders
3. Indigenous Engagement
4. Readiness and capacity of the health and social systems
5. Communications and public education
6. Law enforcement readiness
7. Monitoring, Applied Research and Evaluation

BC Submission – Commitment to Comprehensive Approach

As indicated in the submission, the exemption request was not made in isolation, but as part of a comprehensive public health approach to addressing the toxic illegal drug overdose crisis, led by the BC Ministry of Mental Health and Addictions (MMHA), through cross-government initiatives and investments in other programs and services related to acute case management, treatment, including prescribed alternatives, and harm reduction.

I - Alternative Measures

In order for people to be referred to health and social services, BC must prioritize and urgently advance its work to ensure these services are available when and where they are needed. BC must continue work to build strong connections between the criminal justice and health and social systems. BC must also immediately develop, on a priority basis, clear guidance and training for law enforcement that will support law enforcement to consider alternative measures in instances of personal possession (see VI below).

II - Meaningful and Ongoing Engagement with Partners and Stakeholders

As noted in your request, ongoing and meaningful engagement with partners and stakeholders remains key to successful implementation of the exemption. BC MMHA has committed to working with partners and stakeholders to guide implementation of the exemption and ensure clear, effective communication so that health system partners, people who use drugs, police, business improvement associations, and the general public will understand the changes. It remains vital for BC to continue to engage a range of stakeholder groups representing a variety of viewpoints and to address relevant concerns when they arise.

III - Indigenous Engagement

BC MMHA must continue to work with Indigenous partners to ensure that the exemption responds to community needs and supports reconciliation and cultural safety. I appreciate the additional information you have provided on BC’s commitments to partnering with the First Nations Health Authority, Métis Nation of BC, and other Indigenous partners to:

• Develop a detailed plan to engage with First Nations and other Indigenous partner organizations;
• Continue to work to increase accessibility and knowledge of culturally safe MHSU services across BC; and,
• Develop a detailed plan for supporting Indigenous relationships with police under the new amendment.

IV - Readiness and capacity of the health and social systems

In announcing your request, I was pleased that BC committed to further expand access to opioid agonist therapy (OAT) through virtual prescriber access and more resources for the Hope to Health (H2H) program of complex care. I am aware that this is in addition to other actions BC has already shared with me on efforts to build a mental health and addictions system of care. Moreover, British Columbia is receiving over $1.2 billion in federal dollars through the Working Together bilateral agreements, and the Common Statement of Principles on Shared Health Priorities. It is through this funding that British Columbia has committed to enhancing access to mental health and addictions services by building on existing efforts in areas of integrated youth services, treatment and recovery, and innovative approaches to respond to the ongoing overdose crisis. This includes supporting efforts led by the First Nations Health Authority to increase the number of individuals and communities with access to culturally safer, trauma-informed, and culturally appropriate healing and treatment services, and mental health and substance use care.

BC must continue working to improve the health and social systems so that these services are available when and where people need them. While I recognize the progress BC has made in expanding access to treatment and recovery services, mental health supports, and harm reduction measures, it is vital that this work continue as a priority. Increasing access to and availability of high-quality, evidence-based services across the province, including in rural and remote communities, will be essential in supporting law enforcement in diverting people who use drugs away from the criminal justice system and towards health and social services, when appropriate.

V - Communications and public education

Clear communications and public education remain critical to successful implementation of these changes. It is essential that BC use communications and public education tools to help prevent the initiation of substance use, in particular among youth, and to raise awareness of associated risks. The BC MMHA must work with partners and stakeholders to ensure clear, effective and tailored communication immediately upon receipt of this letter, so that health system partners, people who use drugs, police, and the general public understand the exemption and what has and has not changed. In addition, BC is responsible for providing clarity to staff and clients with respect to the provincial designation of health care clinics included in the exemption as well as for individuals sheltering and the staff who work with them, as per provincial laws or regulations.

VI - Law enforcement readiness

As noted in your request, BC MMHA will continue to work with BC Public Safety and Solicitor General and policing partners to ensure that police agencies throughout BC have updated training materials and job aids to support implementation of the exemption. Given the discretionary model you describe in your request, I am very supportive of your plan to train law enforcement to ensure people who are simply in possession of drugs and where there is no associated public safety risk are not subject to arrest or seizure of drugs. Training and guidance should be made available as soon as possible. It should cover the new rules, how to apply discretion under a public health approach, the impacts of stigma and racism in relation to drug issues, and support in how/where to divert people to available health and social services where appropriate. This training should also include information on policies and legislation that exist to guide police discretion including the Good Samaritan Drug Overdose Act, the Public Prosecution Services of Canada’s Guidance related to prosecuting possession offences, and the amendments to the CDSA that came into force in November 2022, requiring police to consider alternatives to laying charges in situations involving personal possession offences. Consideration should also be given to ensuring the public understands the guidance that police are working under. Strong public communications and continued stakeholder and partner engagement will be key to building trust among the public.

VII - Monitoring, Applied Research and Evaluation

As noted in your request, the BC MMHA will continue to evaluate and monitor the exemption to ensure it is meeting its desired outcomes. BC has committed to continuing to provide Health Canada with monthly narrative reports, due one month after the reporting period, quarterly data reports, and annual reports. Quarterly data reports must be made public and are due to Health Canada by February 15th (combined with an annual report), May 15th, August 15th, and November 15th of each year the exemption is in effect. Interim and final reports from BC’s implementation evaluation must also be shared with Health Canada within one month of being finalized. Regular publications of BC’s updated mental health and substance use data snap shots will also be important to improve transparency. BC has committed to updating the evaluation framework, including the logic model, evaluation questions, and methodology as needed to adapt to the new exemption. This will need to be done immediately and shared with Health Canada within two months of this exemption being in effect. BC will also work cooperatively with Health Canada on needed changes to common work on evaluation and monitoring, and to ensure that the work of third-party evaluators can continue.

Conclusion

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 and on the implementation of this exemption through the existing agreed upon governance framework.