When Addiction Becomes a Crime
After nearly dying of a fentanyl overdose, a man spends the night in jail with no shirt and no chance to call his lawyer.
SAINT-JÉRÔME, QC — When Eric came back to life, he was sprawled out on the pavement with his shirt cut open and defibrillator pads stuck to his chest.
Just a few minutes earlier, he injected a near fatal amount of fentanyl into his arm. That’s where his memory started getting hazy.
“Was I still passed out when you left?” he asked his friend Alexandra de Kiewit.
“You were still out cold. We only had one dose of Naloxone, so I left you with the paramedics and rushed to my apartment to get more,” said de Kiewit, whose quick-thinking likely saved Eric’s life. “When I came back, you were awake.”
“I don’t remember that.”
De Kiewit called 911 on the night of June 2 because, without immediate medical intervention, Eric’s lungs would have shut down and he could have been dead in minutes. She knew that in cases of an overdose, emergency dispatchers send an ambulance and police officers to the scene. But she didn’t think the officers would arrest Eric due to the recently-adopted Good Samaritan Drug Overdose Act, which offers legal protections to people who call 911 in a life or death situation.
She was wrong.
Though his lips were still blue and his ribs ached from the chest compressions de Kiewit gave him to keep his heart beating, Eric spent the next 20 hours in a crowded Saint-Jérôme jail cell with no shirt, no blanket, no opportunity to call his lawyer and a bad case of opioid withdrawal.
“I know I did the right thing by calling 911 but now I’m second guessing myself,” said de Kiewit, who works with a Saint-Jérôme clinic that helps people practice safer drug use.
“I don’t think someone recovering from an overdose belongs in a jail cell. You call 911 to save a life, not to put someone inside. If I’m having these doubts, other people are as well. And that hesitation could cost lives.”
Since the beginning of the COVID-19 pandemic two years ago, Quebec has seen an explosion in fentanyl-related overdoses and a sharp increase in drug poisoning deaths.
Disruptions in the supply of heroin that’s typically smuggled in from Mexico made the market vulnerable to synthetic opioids like fentanyl.
Safe injection sites in Montreal went from seeing a handful of overdoses every month to at least one per day. In 2020, fentanyl-related deaths jumped by 30 per cent compared to the previous year. And at the peak of the crisis 22 months ago, it killed about two people every day in Quebec.
This epidemic played itself out across the country. Opioid toxicity deaths surged by 95 per cent in Canada during the first year of the pandemic, and killed some 7,224 people. That increase came after years of rising death tolls and warnings, from medical experts, that Canada was in the midst of a public health crisis.
In response, provincial governments began equipping their police departments with the life-saving drug, naloxone, and the federal government adopted the Good Samaritan Drug Overdose Act in 2017.
The new law was created to encourage people to call 911 if a friend is overdosing by exempting them from prosecution for nonviolent crimes, like possession of a controlled substance or breach of probation conditions. De Kiewit says Eric’s overdose highlights a glaring loophole in the law.
Eric refused an ambulance ride that night because he was afraid he’d go into withdrawal in the hospital and wind up even more sick than he was to begin with. Police at the scene then ran his name and found an outstanding warrant for his arrest.
“I remember one of them saying, ‘I guess you should have taken the ambulance ride,’” Eric said.
Here’s where things get murky.
The Good Samaritan law protects against arrest for breaching probation conditions but not for those who have an outstanding warrant to their name. Eric’s warrant was for breaching his probation conditions.
“I think this is one of those cases where the police could have used their discretion,” de Kiewit said. “Because while they’re technically within their rights to arrest him, they’d be arresting him for something minor, nonviolent and a crime that’s protected by the Good Samaritan Act.”
These sorts of inconsistencies aren’t isolated to Quebec. In Ontario, the way police interpret and apply the law “varies greatly” from one department to the next, according to a 2019 report by the HIV Legal Network.
“There are so many ways this law doesn’t do what it was intended to do,” said Janet Butler-McPhee, co-executive director of the HIV Legal Network. “It simply doesn’t provide the assurance people need to feel safe calling 911 to save a life.
“The fact is, we’ve tried a punitive approach to drugs for decades but after decades of waging the war on drugs, we’re in the midst of the most lethal drug poisoning crisis in Canadian history.”
One of Butler-McPhee’s respondents said he woke up handcuffed to a hospital bed because of an outstanding warrant. His crime? Failing to appear in court.
“I’m still in the fucking bed. The cop walks up to me and puts a cuff on me … I’m still barely coming to,” the respondent said. “I had no idea what the fuck was going on. I came to and realized the cop was following the ambulance.”
There is no evidence that repeatedly throwing drug users back into the judiciary system helps them get their life together. Before de Kiewit got a job in harm reduction, she used sex work to pay for her addiction. No amount of arrests or stern lectures from the police ever convinced her to stop using heroin.
“I’d get locked up for prostitution and then the conditions of my bail meant I wasn’t allowed to be in a huge swath of Montreal’s east end,” de Kiewit said. “But the thing is, that’s where all the resources that could help me were. That’s where my clinic was, that’s where I could get clean, safe supplies of syringes, that’s where I could be kept alive and safe.
“Let me tell you, there’s nothing about being thrown in prison that makes you want to stop using drugs. You’re in a bullpen with 11 other inmates and one toilet. There’s a blanket and a wooden bench to sleep on if you’re lucky.
“By the time they put you in front of a judge, you’re going through withdrawal; sweating, shivering, smelling awful. It’s a deeply humiliating experience and once you get out, the first thing you want to do is shoot up because you’re dopesick and embarrassed.”
The officers who hauled Eric into prison last week were simply following the letter of the law.
That’s what Saint-Jérôme police Const. Robin Pouliot said when asked if they should have done anything differently. He’s right. The law doesn’t protect against outstanding arrest warrants.
“I don’t know how familiar each officer is with the Good Samaritan law, but I know that, in this case, they applied it correctly,” Pouliot said. “We’ve worked with (harm reduction) groups in the past and we’ll continue to do so in the future. We’re aware of the good work they do and we’ll certainly listen to what they have to say.”
This is what lawyers call the letter versus the spirit of the law. Technically, both the police and de Kiewit are right. The officers applied the law as it was written. But if the law was intended not to punish nonviolent offenders and encourage them to save a life by calling 911, then why should Eric be punished for something as benign as a warrant for breaching his probation?
In other words, we’re asking police officers to make a judgement call that an experienced lawyer might struggle with.
“We’ve stopped pushing for amendments to the (Good Samaritan Overdose Act),” said Butler-McPhee. “We believe the answer is decriminalization and a safe supply of drugs.”
On the night she met up with Eric, de Kiewit also used fentanyl.
Eric, her ex boyfriend, was visiting from the city and wanted to use right there in the parking lot of the Saint-Jérôme train station. Against her better judgement, she shot up next to Eric even though she didn’t have her usual kit of naloxone on her.
When things went sideways, de Kiewit did the right thing and called 911. Because even though she uses drugs, de Kiewit has devoted her life and career to preventing people from dying.
It seems counterintuitive for someone who fights to keep people from overdosing to also put herself at risk. But it’s her proximity to the streets that helps de Kiewit act as a bridge between users and the services that can help them practice safer drug use and even get into detox.
Throughout the pandemic, de Kiewit has intervened in overdoses, administering life-saving drugs like Naloxone to keep people alive. She also nearly died of drug poisoning last year.
“You used to be able to get actual heroin in Quebec; beige or brown heroin and you knew what to expect,” she said. “But then, in 2020, we started getting “purple” — a (fentanyl-based) opioid that’s so strong it becomes really difficult to dose correctly. You can’t get heroin anymore. It’s all purple or red substances that contain a drug that’s like 100 times stronger than heroin.
“You can make all sorts of little adjustments to the law but the problem, at its core, is the supply. If we don’t know what we’re putting into our bodies, we’re all experimenting with something incredibly dangerous. And as much as we might want to stop, opioid addiction isn’t just psychological. Your body starts needing the drugs, your body starts turning on you if you don’t take them.”
The federal government has offered a piecemeal solution. If community organizations ask for an exemption from the Criminal Code’s prohibition against hard drugs, experts can test drug samples to determine how dangerous they are. There are already drug testing sites in Montreal, Vancouver and cities across the country.
Last week, the Trudeau Liberals took things a step further when they allowed the province of British Columbia to decriminalize possession of up to 2.5 grams of fentanyl. Health Minister Carolyn Bennett says she’s open to similar measures in other provinces and in cities that request the same Criminal Code exemptions.
This would allow for more testing and it could save lives.
But critics say this only amounts to a half-measure. The B.C. government had initially asked for the legal threshold to be 4.5 grams of fentanyl but the Liberals lowered it to 2.5 after consulting with police. Butler-McPhee says that when global supply chains are disrupted, people tend to stock up on their drug of choice and carry larger quantities.
“What we’re seeing with a lot of legislation around drugs is that we’re involving police in a medical matter,” Butler-McPhee said. “The people who know best about addiction and recovery are the drug users themselves. We’ve tried prohibition, we’ve tried the police method, now it’s time to take a more practical approach.”
When Eric was released from prison after his overdose, he didn’t suddenly stop wanting to do drugs. After working with harm reduction programs, Eric manages his addiction with a daily dose of methadone — prescribed by a doctor — and he uses far less often than he once did. When we spoke for this article, Eric was on his lunch break at work.
“Eric is my ex. I haven’t had a lot of serious boyfriends in my life but he was one of them. I lost another one last year,” de Kiewit said. “I lost a friend just yesterday. I don’t want to lose another one.”