The British Columbia government says it is prepared to enact legislation aimed at significantly curbing where people can use illicit drugs without risk of criminal penalties the moment a temporary injunction expires or is lifted by the courts, which could be as early as April 1.
But the province’s position comes on the heels of the B.C. Court of Appeal rejecting the government’s application to appeal the injunction, and a fresh effort by the Harm Reduction Nurses Association to extend the judicial order until a broader Charter challenge is heard.
The injunction, which is set to expire March 31, temporarily suspends B.C.’s Restricting Public Consumption of Illegal Substances Act, which would greatly expand the list of places where illicit drug use would again be subject to criminal penalties, such as parks and beaches.
It is the latest volley between the national non-profit organization and the B.C. government over the rollout of the province’s three-year drug decriminalization pilot. On Friday, the B.C. Court of Appeal rejected both the government’s application for leave to appeal and a stay of the injunction.
Pivot Legal Society lawyer Caitlin Shane, who along with DJ Larkin is representing the nurses association, said BC Court of Appeal Justice Ronald Skolrood determined it would not be in the interests of justice to proceed.
“He found that the trial judge was reasonable in coming to the decision that he did, based on the evidence that he had, which was that if this law were to come into force, it would pose a significant threat of irreparable harm, including death, to people who use drugs in B.C.,” Ms. Shane said.
Under a three-year decriminalization pilot project that began Jan. 31, 2023, British Columbians 18 and older have been able to carry up to a cumulative total of 2.5 grams of illicit opioids, crack and powder cocaine, methamphetamine and MDMA – the substances most commonly associated with overdoses – without risk of arrest, drug seizure or criminal charges.
The B.C. government is hopeful that the move will lessen the stigma associated with drug use and encourage people to seek help at a time an unrelenting toxic drug crisis is killing more than six people every day. Other supporters of the policy change – the first of its kind in Canada – say it is incompatible to deem addiction as a health issue while also criminalizing people in the throes of it.
Ottawa greenlighted B.C.’s pilot with an exemption from the federal Controlled Drugs and Substances Act, requiring few exceptions to where simple possession was decriminalized: kindergarten to Grade 12 school premises, child-care facilities, airports and in vehicles operated by a minor. Last September, at the province’s request, Health Canada amended the policy to include playgrounds, spray pools, wading pools and skate parks.
However, public support for has been tested by growing street disorder, including public drug use. Several municipalities – including Campbell River, Port Coquitlam, Kamloops, Prince George, Sicamous, Penticton and Kelowna – introduced their own local bylaws banning drug use in public spaces, creating a patchwork of regulations.
In November, the province passed the Restricting Public Consumption of Illegal Substances Act, which would have further expanded the public places where illicit drug use is again criminalized, including parks, beaches and sports fields, as well as within a six-metre radius of building entrances and bus stops.
The Harm Reduction Nurses Association launched a constitutional challenge to the legislation and sought a temporary injunction preventing the bill from coming into force in the interim, saying it would drive drug users into the shadows and put their lives at risk. B.C. Supreme Court Chief Justice Christopher Hinkson sided with the nurses in late December. The province appealed in January.
On Monday, Ms. Shane with the Pivot Legal Society said her clients are now seeking to extend the injunction until there is a decision in the broader Charter challenge, which is expected to take place this summer.
Mike Farnworth, Minister of Public Safety and Solicitor General, said his government was disappointed with Friday’s decision and remains committed to defending the legislation in court.
Andrea Woo