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09/24/2018 14:58 EDT | Updated 09/24/2018 14:58 EDT

Vancouver Police Seizure Of Opioid Replacements May Be Legally Defensible

A necessity defence could apply to the distribution of cannabis to opioid-addicted adults in the Downtown Eastside.

An uproar in the Vancouver cannabis community and on social media occurred recently. It was the result of Vancouver Police Department officers seizing cannabis from a so-called opioid replacement site.

The rationale offered by the VPD for these actions was simple: cannabis remains illegal, and trafficking cannabis is also illegal. Despite the fact that the people operating the opioid replacement site were attempting to distribute cannabis safely to people at risk of death or serious injury from opioid use, the VPD felt it necessary to seize the cannabis offered as a replacement.

Certainly from a public safety perspective, this action seems unjust. There is currently an overdose epidemic and a crisis for opioid users who may accidentally ingest fentanyl, or who may overdose on fentanyl due to the small amount necessary to cause such a reaction. Some figures place the death toll provincially at over 100 people per month.

THE CANADIAN PRESS/HO-Vancouver police service
Cannabis products from the Vancouver Police seizure are shown here in a police handout image.

The Government has rightly declared a public health emergency. Despite this declaration in 2016, overdose death tolls continue to climb.

The Government's response to this issue has been, to some extent, troubling. The most recent announcement by the provincial government has been to launch a lawsuit against opioid manufacturers. This did not come without criticism, particularly from people who see this as a time-consuming exercise that does not solve the problems for those who are addicted to opioids. And this is true. This litigation will undoubtedly take years, and in the meantime does not do anything to address the issue for those already addicted to opioids or those becoming addicted now.

The B.C. Government has also taken no steps toward creating its own opioid replacement program. Despite the fact that the Supreme Court of Canada has determined that provinces can legislate in the area of criminal law where it pertains to an issue of valid provincial authority, like health care. It seems like a public health emergency and providing health care to those addicted to opioids is a pretty important issue.

Necessity is a defence to a criminal charge, such as trafficking cannabis.

So, in theory, the Government could have done this itself. They could have used an existing cannabis distribution framework already in place in Vancouver, by way of dispensaries, to provide a safe and lawful supply of cannabis to opioid addicts in an attempt to replace the addictive and dangerous substance. But they have not done so. And citizens decided to step up.

Hence the uproar over the seizure of the cannabis. While technically illegal, it was also arguably legally necessary.

And this is where a very interesting issue arises. Necessity is a defence to a criminal charge, such as trafficking cannabis. Although I researched the issue, I could not find a single instance in which the necessity defence was used successfully in this way. But that does not mean it is not possible. So let's analyze it.

Cannabis, ironically, did arise in the leading Supreme Court of Canada case on the necessity defence. In R. v. Perka, the Supreme Court of Canada determined that in circumstances of necessity, a person may be excused from their criminal responsibility for their actions. But this is not an easy defence to raise. In order for necessity to be a successful defence, the following must apply:

  1. Appropriate and normal resistance to pressure;
  2. Imminent risk or immediate peril;
  3. That the act was inevitable, unavoidable, and no reasonable opportunity for a different course of conduct existed;
  4. The harm avoided is greater than the harm inflicted.

Instantly, we see that there are some difficulties here. There is clearly imminent risk or immediate peril, with an average of four deaths a day. Indeed, in fentanyl sentencing cases the Crown often refers to the nature of the opioid crisis. It seems the government truly believes this is an emergency.

As far as the harm goes, giving drug-addicted adults cannabis instead of opioids at no cost clearly meets the test. The potential risk to life is much greater than the technical breach of the law, not for profit, and to people who will likely use drugs regardless of the cannabis. Whatever social ills cannabis prohibition is designed to address, they certainly aren't greater than death. Particularly when cannabis legalization is on the horizon.

Where the difficulty lies is in the appropriate and normal resistance to pressure and the opportunity to take a different course of conduct.

Even then, I think the defence is arguable. The Supreme Court of Canada determined that the accused need only put sufficient evidence before the court to raise the defence with an air of reality. Then, the Crown bears the burden of proving that the defence does not apply.

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Riddle me this: what other reasonable opportunity exists? You cannot force people into treatment, particularly with the well-documented effects of opioid withdrawal. The street or a shelter is not an adequate place to have someone experiencing these symptoms. And with housing prices what they are in the Lower Mainland, purchasing or renting a space to help opioid addicts is an illusory option. Besides, forcing people into treatment who are not ready for it has its limitations.

An appropriate and normal response to pressure is also dictated by societal standards. This can be a shifting standard. It is appropriate and normal to want to step in and help with a public health crisis, if you can. It is appropriate and normal to not turn a blind eye and let people die while doing nothing. Anything less is not a society that I want to live in. Giving people something that may help to eliminate opioid addiction is arguably normal and appropriate.

And so it is arguable that the necessity defence applies to the opioid replacement program and the distribution of cannabis to opioid-addicted adults in Vancouver's Downtown Eastside. If the Vancouver Police Department is threatening charges - they may want to think twice.

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