Legal limbo: BC NDP wait for Feds to recriminalize public drug use

Written By Keith Norbury

Reacting to public backlash and stymied in its attempts to restrict illicit drug use, the B.C. provincial government backtracked on decriminalization last week, asking the federal government to make public consumption illegal. But whether this strategy will work or withstand court challenges any better than B.C.’s previous ill-fated legislation remains to be seen.

Premier David Eby announced last week that his government was working “urgently” with Health Canada to amend its decriminalization agreement with the federal government to exclude illicit drug use in “all public spaces.” 

Come Monday, though, federal Addictions Minister Ya’ara Saks sounded anything but urgent. According to the Canadian Press, Saks said, “We’re still evaluating the data” about drug decriminalization.”

Until the federal government grants that request, the province’s efforts to control public illicit drug consumption remain mired in uncertainty.

Last fall, the B.C. government introduced Bill 34, the Restricting Public Consumption of Illegal Substances Act in response to municipal politicians exasperated by increasing open illicit drug use and police having no legal ability to stop it since decriminalization began on Jan. 31 2023.

Introduced as Bill 34, the act built on federal restrictions, which prohibited illicit drug use at schools, child care facilities and airports, adding restrictions to include within 15 metres of public outdoor playgrounds, spray and wading pools, or skate parks. 

The Harm Reduction Nurses Association, a small drug user advocacy group, challenged Bill 34, because it expanded restrictions on public drug use beyond what was originally approved by Health Canada for the three-year decriminalization pilot project.

“When you actually consider all of the locations that this bill prohibits, it effectively bans drug consumption,” said Pivot Legal Society’s Caitlin Shane, the lawyer representing the harm reduction nurses. “Consider Hastings Street in Vancouver where I live. You can’t really be anywhere on that street without being within six metres of a doorway or a transit stop.”

“[Bill 34] effectively bans drug consumption.”

Caitlin Shane

The harm reduction nurses group argued that any restrictions would harm drug users who would have to consume drugs out-of-sight, raising their risk of overdose.

A Dec. 29 B.C. Supreme Court decision agreed, granting an interim injunction to postpone implementation of Bill 34. In his ruling, B.C. Supreme Court Chief Justice Christopher Hinkson accepted arguments about the social harms of public drug consumption, but didn’t accept that to mean people can use those kinds of drugs “nearly wherever they want.” He deferred arguments on the constitutionality of the B.C. law.

Hinkson didn’t rule on the assertion that Bill 34 violated the Charter of Rights and Freedoms’ section 7, which grants everyone “the right to life, liberty and security of the person.” But he found enough evidence “that the plaintiff has raised serious questions to be tried.”

Decrim fuels public backlash

Since the Hinkson ruling, the news cycle has been inundated by accounts of brazen public use. Federal parliamentary testimony from the province’s top police leadership revealed police have no authority to stop public drug use, and two leaked health authority memos showed rampant illicit drug use being enabled by public health policy in hospitals.  

“The whole decriminalization scheme has put the larger community’s health at risk potentially — we know from the stories about nurses and hospitals — and has created a tremendous public political backlash,” said Nanaimo Mayor Leonard Krog, who, only a few minutes before an April Northern Beat phone interview, watched a drug deal through his office window.

“Public drug use… is dangerous to public health.”

Leonard Krog

“The public use of drugs, whether it’s played out in public places like parks and playgrounds or in the streets, but particularly in hospitals and healthcare facilities, is utterly repugnant to the public. It is dangerous to public health,” Krog said.

A former NDP MLA for 18 years, Krog said on May 1 he was “extremely pleased” at the action the province is now taking.

“This is the right thing to do both practically and politically,” he said. “There simply isn’t community support for decriminalization, the way it rolled out.”

Low risk of lawsuit, says premier

Even if the feds agree to the province’s latest restrictions on drug use, the Harm Reduction Nurses Association might still challenge B.C.’s most recent legal manoeuvre.

Neither B.C.’s attorney general, nor the Pivot Legal lawyer representing the Harm Reduction Nurses Association, would comment on the possibility.

“There is nothing to stop any of us from suing for anything in our courts,” said Krog, who is also a lawyer. “There’s no law that says you can’t file unless you’ve been a subject of a court order that says you have repeated ridiculous false allegations.”

During last week’s walk back on decriminalization, Premier David Eby told reporters the new amendments, if granted, might well be challenged. 

“However, in order for it to be successful, the court would have to find that the entire Controlled Drugs and Substances Act at the federal level was unconstitutional,” he said.

“We think it’s a very low risk.”

Constitutionality of drug use restrictions not yet court-tested

If that advice came from the province’s own lawyers, consider they’ve already twice failed to convince B.C. courts of the constitutionality of the government’s law to achieve a similar end.

In his December injunction decision, Hinkson accepted that the act restricting drug use “poses a public benefit,” has the support of police chiefs; and that “social harms associated with public illegal drug use” include loss of public space, discarded needles, criminal activities “and decreases in real and perceived public safety.”

“From the outset, we should have had these authorities in place for police to be able to deal with [public drug use],” Premier David Eby says announcing his government’s walk-back on decriminalization. [Photo BC Government]

The chief justice also agreed with the province’s submission “that not all displacements will necessarily place people who use drugs in less public circumstances.” But decided that “at least in some circumstances” drug users would be displaced, which would pose “a sufficiently high probability of irreparable harm.” 

“What evidence hasn’t been in front of the court … is the impact on communities of public spaces where people are using publicly.”

David Eby

After the December court decision prevented implementation of Bill 34, the province lost an appeal of the injunction in March, with the court extending the injunction to June 30 to allow time for the government to argue the constitutionality of the drug use restrictions in a separate court process.

Both justices arrived at a similar conclusion.

According to Hinkson’s ruling, lawyers for the province delivered arguments, but, Mr. Justice Ronald Skolrood, who ruled to uphold the injunction in the March appeal, said the province didn’t present any actual evidence.

A fact Eby seemed to acknowledge last week.

“The litigation to date has properly considered the rights and the lives and the dignity of people struggling with addiction. What evidence hasn’t been in front of the court … is the impact on communities of public spaces where people are using publicly.”

If the case continues in the courts, Eby vowed, “That evidence also has to be in front of the court and we’ll make sure it’s available to the court.”

Why it wasn’t there previously is unclear. 

Constitutional challenge still proceeding

Meanwhile, as the federal government mulls over B.C.’s request to recriminalize public drug use, arguments on the prior constitutional challenge remain active with a case planning conference still planned for May 2.

In an April interview before the B.C. government submitted its recriminalization request, Shane from Pivot Legal told Northern Beat the harm reduction nurses organization intended to apply for an interlocutory injunction related to the constitutional challenge, with the aim of suspending the law until “a proper hearing on the merits.”

Two weeks ago, the province wasn’t sending any signals it would seek to change the terms of the decriminalization agreement.

In an April 16 statement to Northern Beat, Minister of Public Safety and Solicitor General Mike Farnworth confirmed his government had consented to extending the injunction until June 30, “so that government would be permitted to pass the regulations that would show the court and the public how this legislation would be implemented.”

Since then, public criticisms have intensified. Eby said the tipping point for him was when the attorney general told him the Bill 34 case could take more than a year to resolve, putting the end date sometime past the scheduled Oct. 19 provincial election. 

‘It’s not going to solve the guts of the problem’

“I believe this is a serious, vote-determining issue for many British Columbians, enough that it would make a difference as to who gets to be government,” Krog said in a mid-April interview, predicting the provincial government would curtail the decriminalization experiment before the election, similar to what happened recently in Oregon.

Krog doesn’t fault the government for the decriminalization experiment, noting that it was well-intentioned and had the backing of healthcare officials and B.C.’s chief coroner.

“But I’ve never believed, and I don’t think the majority of the public ever believed, that this was going to be beneficial in a real way to those people who are deep in addiction. Those folks are not going to be influenced one way or another by decriminalization to seek or not seek treatment or care.”

“I don’t think the majority of the public ever believed, that [decrim] was going to be beneficial in a real way to those people who are deep in addiction.”

Leonard Krog

Krog expects the latest request from the province “will take a while” for the federal government to approve, and that it will make a difference in reducing public disorder.

“But it’s not going to solve the guts of the problem,” he said. 

“We know that what’s required is a far more robust system of care, from detox all the way through to secure involuntary care — and everything in between, including housing, supportive housing, treatment centers, therapeutic communities, you name it.”

Krog’s prescription would be to provide housing and treatment options for the drug-addicted rather than places where they can just continue consuming potentially deadly substances.

“We’ve never had a full implementation of the four pillars approach,” Krog said, a reference to harm-reduction being only one pillar, along with prevention, treatment, and enforcement.

Krog also reiterated his call to provide involuntary care for those who, through addiction, mental illness, brain injury or other trauma, are incapable of caring for themselves — similar to how society deals with elderly dementia patients.

“Surely this should be a non-partisan issue,” Krog said. “It’s not getting better that I can see. Everybody is getting tired. And I fear that the reservoir of public sympathy which should exist in a civilized modern liberal, 21st century democracy is starting to dry up.

“To the average citizen, this starts to look a bit insane.”