On October 28, 2023, Health Canada solicited comments and published a Notice of Intent proposing to amend the federal Controlled Drugs and Substances Act (CDSA) by expanding the existing listings of the fentanyl precursor 4-piperidone and its salts to include its derivatives and analogues under the CDSA.
This boils down to criminalizing the possession and distribution of such compounds—in effect, an expansion of police and border control powers to search and seize shipments. Health Canada’s apparent intent is clear: to reduce the access of illegal fentanyl producers to the ingredients they need to make fentanyl and its analogues.
Health Canada consulted law enforcement and pharmaceutical researchers and companies, along with “interested members of the public.” As far as we know, they did not invite people who use drugs, people who produce or distribute drugs, or anyone at the frontline of the drug toxicity crisis (aside from police) to determine what impacts the scheduling of additional fentanyl precursors might have.
Fortunately, Nick Boyce of the Canadian Drug Policy Coalition was paying attention and prepared a statement for submission to Health Canada. In it, Boyce outlines the harms that could arise from this perpetuation of drug war mindset through increased fentanyl criminalization. This article adapts Nick’s submission—an important read for understanding the life support system of the drug war in Canada: the Controlled Drugs and Substances Act (CDSA).
Under Health Canada’s proposal, the existing listing for 4-piperidone and its salts would be expanded to include its derivatives and analogues, including 1-boc-4-piperidone, 3-methyl-4-piperidone, and 1-benzyl-4-piperidone. Health Canada claims that these substances are being imported into Canada and/or detected in clandestine laboratories and being used to synthesize fentanyl and fentanyl analogues. (Drug Data Decoded has previously discussed the size and frequency of major drug busts at production labs in Canada, including a sizeable shipment from Vancouver that arrived on Australian shores.)
The current regulatory environment and persistent and growing scheduling of substances and precursors does not achieve the intended outcome of reducing the use of substances and has unintended health and societal risks, especially for people who use drugs. In Canada, in the last decade, we have seen an exponential rise in drug deaths and hospitalizations, primarily as a result of heroin being almost entirely replaced by numerous fentanyl analogues. But fentanyl may not have proliferated had we sensibly regulated, instead of prohibited, heroin.
Health Canada’s Drug Analysis Service data
Health Canada’s Drug Analysis Service (DAS) and Cannabis Laboratory (CL) operates laboratories across Canada that analyze suspected illicit substances seized by Canadian law enforcement agencies. DAS data demonstrates the unintended consequences of scheduling substances: new and different substances continually emerge such as novel synthetic opioids (different fentanyl analogues and nitazene compounds) and other depressant type drugs such as a range of illicit benzodiazepines.
From July to September 2023, a total of 28,666 samples (including Cannabis) were submitted for analysis:
- There was a total of 6,819 identifications of opioids where 75% were fentanyl or fentanyl analogues (Fentanyl; Para-fluorofentanyl; Bromofentanyl; 4-anilino-n-phenethylpiperidine; Acetyl Fentanyl; Methoxyacetyl Fentanyl; Para-chlorofentanyl). From all samples containing heroin, 20% also contained fentanyl.
- There was a total of 2,798 identifications of benzodiazepines during that period, which represents a 36% increase over the same period last year.
- There was a total of 242 identifications of nitazenes during that period, which represents a 44% increase over the same period last year.
- Newly identified depressant class substances included: Ethyleneoxynitazene; N-boc fluroro Norfentanyl.
“Fentanyl was first identified in Canada in 1989 in exhibits submitted by law enforcement agencies. Since 2016, there has been a sharp increase in the number of Fentanyl identifications in Canada. Between January 2012 and December 2022, Fentanyl has been identified in 77,141 exhibits submitted for analysis…Fentanyl is a major contributor to the [toxic drug] crisis in Canada; in 2021, 86% of all accidental apparent opioid toxicity death involved Fentanyl and 32% of all opioid-related poisoning hospitalizations involved Fentanyl or Fentanyl analogues.” -Spotlight: The evolution of Fentanyl in Canada over the past 11 years, March 2023, Health Canada Drug Analysis Service
That fentanyl first appeared in the illegal drug market at least as early as 1989 is well documented by people who use drugs, who referred to fentanyl-containing opioid supply as China White. Academic studies even referred to it in the early 90s.
Previous efforts to schedule and prohibit fentanyl and fentanyl precursors have not stopped people using substances. Instead, they have expanded the number of fentanyl analogues and other novel opioid or depressant-type contaminants in the drug supply. This has increased the volatility, danger, and toxicity of the unregulated drug supply. Over the last several years there has been an exponential increase in fatal and non-fatal overdoses, hospitalizations, and the attendant need for emergency health responses such as naloxone distribution, supervised consumption spaces, safe supply initiatives. In addition, scheduling substances further complicates law enforcement efforts.
Toxic drug deaths are primarily from the unregulated supply
Health Canada’s Notice of Intent to control the derivatives and analogues of the fentanyl precursor 4-piperidone and its salts under the CDSA notes:
“Between January 2016 and March 2023, there were a total of 38,514 apparent opioid toxicity deaths in Canada. Fentanyl and fentanyl analogues continue to be major drivers of the opioid overdose crisis, with 81% of all accidental apparent opioid toxicity deaths from January to March 2023 involving fentanyl.”
Current Health Canada reporting also notes:
- Of all accidental apparent opioid toxicity deaths so far in 2023 (January-March), 81% involved fentanyl. This percentage has increased by 42% since 2016 when national surveillance began but appears to have stabilized in recent years.
- Of all accidental apparent opioid toxicity deaths so far in 2023 (January-March), 77% involved opioids that were only non-pharmaceutical. This percentage has increased by 17% since 2018 when national surveillance began but appears to have stabilized in recent years.
- There was a total of 37,697 opioid-related and 16,231 stimulant-related poisoning hospitalizations from January 2016 to March 2023 in Canada (excluding Quebec)
- A total of 1,309 opioid-related poisoning hospitalizations occurred so far in 2023 (January-March). This is an average of 15 hospitalizations per day.
Governments at all levels and their institutional representatives continue to hint at their discomfort with the status quo—moving beyond talking points will require focused and persistent public pressure.
“Most opioid-related deaths involve opioids that were nonpharmaceutical in origin and often involve other substances (e.g., nonmedical benzodiazepines or stimulants).” - November 2022: Opioids (Canadian Drug Summary), Canadian Centre on Substance Use and Addiction
The unpredictability and toxicity of the illegal drug supply have increased since the start of COVID-19, and new synthetic opioids have recently been detected (e.g., nitazenes), which have the potential to increase opioid-related harms among people who use drugs.
“The primary driver of death is the increased toxicity, volatility, and unpredictability of the unregulated drug supply. Various synthetic opioids and other adulterants including benzodiazepines and other substances are often found in toxicological testing and in drug sample testing, but the one constant throughout the emergency is illicitly produced fentanyl, a powerful synthetic opioid. The cause of death in nearly all instances is mixed drug toxicity, with fentanyl present in more than 85% of deaths in 2022.” - November 1, 2023, BC Coroners Service Death Review Panel: An Urgent Response to a Continuing Crisis
“These drug poisoning deaths have been primarily driven by an increasingly toxic illicit drug supply, exacerbated by under-resourced health and social complexities.” - BC Minister of Mental Health and Addiction, Adult Substance Use System of Care Framework, 2022
“Opioid toxicity deaths increased two-fold from 1,290 in 2018 to 2,547 in 2021. The majority of opioid toxicity deaths were caused by non-pharmaceutical opioids in 2021 (90.4%, N=2,303). When only considering opioid toxicity deaths that involved other substances, deaths increased from 795 in 2018 to 1,734 in 2021. The proportion of opioid toxicity deaths that directly involved other substances increased from 61.6% in 2018 to 68.1% in 2021.” - September 2023 Report by The Ontario Drug Policy Research Network and Public Health Ontario: Characteristics of Substance-Related Toxicity Deaths in Ontario
The harms of drugs versus the harms of prohibition
It is important to note that fentanyl is not inherently dangerous – it is used widely in human medicine (Trade names Abstral®, Duragesic®, Onsolis®). However, in the unregulated market, dosage and purity are never assured - prohibition and unregulated drugs are killing people.
People are now unknowingly consuming drugs that contain multiple substances. Fentanyl analogues, novel opioids, and nitazine and benzodiazepine-type compounds widely contaminate the supply, increasing toxicity. Beyond the deaths, there are thousands of hospitalizations, a growing cohort of people surviving with brain damage after non-fatal overdoses, and traditional opioid therapies, such as methadone, are less effective due to increased drug tolerance.
The diversification of drugs has caused unprecedented mortality, negative health outcomes and social impacts, creating an untenable situation. Solutions to Canada’s toxic drug crisis require a shift away from these harms of prohibition.
Other costs of prohibition
Making certain drugs illegal does not stop people from using substances. Criminalization of substance use further stigmatizes people who use drugs, making it more difficult to engage them in health care, exacerbates many of the factors that negatively impact health and wellbeing, and negatively impacts educational, employment, travel and other prospects of individuals convicted for drug charges. Criminalization also fosters social marginalization and encourages high-risk behaviours, such as injecting in unhygienic, unsupervised environments, poly-drug use, and binge use.
Scheduling drugs and precursors creates incentives for underground chemists to create new substances that may be even more dangerous. Scheduling each new substance, precursor, or class of substances increases costs related to enforcement strategies and social costs to people who use these drugs. Resources spent on enforcement mean less resources for the provision of health and social supports that would be more effective in reducing drug use.
Banning drugs and relying on enforcement based supply-side approaches to discourage their use has not stemmed drug use or stopped the drug supply. Despite Canada’s significant investment in drug control efforts, drugs or more dangerous substitutes are just as available as ever. There is growing consensus among international experts that drug prohibition has failed to deliver its intended outcomes and has been counterproductive.
Creation of unregulated drug markets
Rather than reducing the supply of drugs, prohibition abdicates the regulation of drugs to criminal markets. This approach has several negative effects.
Drug policies that prohibit substances eliminate age restrictions on them by abandoning controls to an unregulated market. In addition, when we prohibit rather than regulate substances, it becomes impossible to control the purity and strength of drugs. Illegally produced and supplied drugs are of unknown strength and purity, increasing the risk of overdose, poisoning, and infections.
If the use of one drug is controlled by reducing supply, suppliers and users may move on to another drug with similar psychoactive effects, but less stringent controls. An example of this was emergence and subsequent banning of a novel synthetic cathinone (mephedrone) in the United Kingdom in 2010. People started using (unscheduled) mephedrone because drug enforcement efforts had negatively impacted the availability and quality of other stimulants such as cocaine and MDMA. However, people who used mephedrone before the ban either continued their use or switched back to previously prohibited and unregulated substances after the ban. Research showed that prohibiting mephedrone did not have the intended effect of reducing substance use; rather it displaced drug use to either new substances or older illegal substances of unknown purity or dose.
“Many might say ‘so what, surely banning a drug couldn't do any harm?’ But it soon transpired that banning it was associated with an increase in harms from other stimulant drugs. Because mephedrone was legal it took a lot of the cocaine and amphetamine markets. This led to a remarkable fall in deaths from these 2 more toxic stimulants. Overall, the emergence of mephedrone was associated with a reduction in over 300 deaths from these other 2 stimulants. Since this was not a controlled trial, it is not possible to be certain that the rise of mephedrone use led directly to the fall in deaths from other stimulants but it seems almost certainly to have been a significant factor. In hindsight, one could speculate that mephedrone turned out to be the most effective intervention to reduce cocaine deaths ever known. Further evidence for a causative effect of mephedrone is the fact that since it was banned cocaine deaths have risen to their highest ever levels.” - David Nutt, 2010, Pharmacology influencing UK practice, policy and the law
Research also suggests that the ban on mephedrone displaced provision of this substance from internet and “head shop” suppliers to street-level sellers, thus involving more people in illegal activity, and the price increased.
A recent US study also demonstrated that law enforcement efforts to disrupt local drug markets by seizing opioids or stimulants are associated with increased spatiotemporal clustering of overdose events in the surrounding geographic area.
Increasing challenges and costs for law enforcement
Consumers face growing challenges from synthetic drugs owing to the unknown pharmacology and harms of the drugs, lack of pharmacological retail markets, as shown by the growing numbers of tranquilizers, including novel benzodiazepines, found in the drug supply.
The toxic drug crisis in North America has not been associated with a sizeable increase in the number of opioid users but driven by overdose deaths, mainly attributed to the use of fentanyls.
On November 18, 2023, the head of the RCMP unit responsible for fighting organized crime was quoted as saying: “Sadly, Canada is a producing country of fentanyl and synthetic opioids. Not only are we a producing country, we're an exporting country. One of the challenges is that a lot of these precursors are not illegal.”
While this may appear to be a challenge from a law enforcement perspective, the unintended consequences of never-ending scheduling and prohibition are a far greater challenge.
On November 26, 2023 the vice-president of intelligence and enforcement at Canadian Border Services Agency was quoted as saying: “CBSA is in a constant game of cat-and-mouse with criminal organizations that are trying to import dangerous narcotics as well as the ingredients for fentanyl—sometimes through ‘creative’ means…It's an ever-evolving game where we're constantly looking at new and different tactics to smuggle drugs into the country or out of the country."
A drug-free world is an unattainable and, for many, undesirable world. It is time to consider a new approach that eliminates the negative effects of drug prohibition, provides a variety of health and social supports and harm reduction services, and avoids criminalizing those who choose to use drugs.
Alternative policy options
Clearly all drugs, whether legal or illegal, can pose risks. The 2019 Canadian Alcohol and Drugs Survey (CADS) asked about five harms people may have experienced in the past 12 months due to alcohol consumption. Types of harm include being unable to stop drinking once started, failing to do what was normally expected from you because of drinking, needing a first drink in the morning to get yourself going after a heavy drinking session, being unable to remember what happened the night before because of your drinking, or having a feeling of guilt or remorse after drinking.
Of those who reported past-year alcohol use, 21% (4.8 million) experienced at least one alcohol-related harm in the past year due to alcohol use. These data demonstrate that alcohol, a regulated substance, can still be harmful. However, alcohol is subject to regulatory controls, including pricing, age restrictions and dose that help to contain the negative public health and public safety effects while avoiding the negative effects of complete prohibition. As a result, people do not die from a toxic alcohol supply.
Regulation, not prohibition, of all substances would ensure they are manufactured under safe and sanitary conditions and can be subject to penalties for sale in adulterated and/or unlabeled forms. A key benefit of regulation is that it allows appropriate controls to be put in place over price and availability (location, times of opening and age restrictions) as well as controls over advertising and promotion. It is precisely because unregulated drugs pose risks that they need to be appropriately regulated to ensure that dosing and conditions of manufacture protect the safety and health of Canadians. Allowing people reasonable access to substances of known quality and purity would:
- Significantly reduce unintentional fatal and non-fatal overdose or poisoning.
- Remove the control of drugs from the criminal market and its associated corruption and violence.
- Reduce criminal market incentives to produce new or novel substances to skirt scheduling and enforcement.
- Free-up resources wasted on ineffective and harmful prohibition and law enforcement that could be directed to myriad health and social programs.
Stopping the endless and harmful cycle of scheduling and prohibition and to follow recommendations and calls found in:
The August 2023 Report of the Office of the United Nations High Commissioner for Human Rights, Human rights challenges in addressing and countering all aspects of the world drug problem, specifically recommendations:
(a) Adopt alternatives to criminalization, “zero tolerance” and elimination of drugs, by considering decriminalization of usage; and take control of illegal drug markets through responsible regulation, to eliminate profits from illegal trafficking, criminality and violence;
(c) Consider developing a regulatory system for legal access to all controlled substances;
The Global Commission on Drug Policy 2021 report, Time to End Prohibition, which notes: “The Global Commission argues that options for legal regulation should be explored for all psychoactive substances. Regulation means not only protecting the health and safety of the end-consumer, but also creating a supply chain with strict controls for potency, quality and access. Regulation ultimately requires the boldness to build a world that does not yet exist.”