B.C. court blocks new law against public drug use warning of 'irreparable harm'

The British Columbia Supreme Court has blocked new provincial laws against public consumption of illegal substances, prompting concern from the government and a Metro Vancouver mayor who called the decision “pathetic.”

Friday's ruling in favour of the Harm Reduction Nurses Association imposes a temporary injunction until March 31, pending a constitutional challenge, with the judge saying “irreparable harm will be caused” if the laws come into force.

Public Safety Minister Mike Farnworth said in a statement the government was “concerned” by the ruling against laws meant to prevent “the use of drugs in places that are frequented by children and families.”

“(This) decision temporarily prevents the province from regulating where hard drugs are used, something every other province does, every day,” he said.

The Restricting Public Consumption of Illegal Substances Act was passed by the legislature in November, allowing fines and imprisonment for people who refuse to comply with police orders not to consume drugs in certain public places.

The nurses association argued the act, which has yet to come into effect, would violate the Canadian Charter in various ways if enforced.

But Chief Justice Christopher Hinkson said in his ruling that it was unnecessary to turn to those arguments, since the “balance of convenience” and the risk of irreparable harm weighed in the plaintiff's favour.

“I accept that lone drug use may be particularly dangerous due to an absence or a diminished degree of support in the event of an overdose,” Hinkson's ruling says.

“When people are isolated and out of sight, they are at a much higher risk of dying from an unreversed overdose.”

The law would allow police to order people to “cease using an illegal substance in a specified area,” or to leave that area.

The places specified in the act include sports fields, beaches or parks, within six metres of building entrances and within 15 metres of a playground, skate park or wading pool.

People who refuse could be fined up to $2,000 and imprisoned for up to six months.

The act would give police discretion to arrest those who don't comply and seize and destroy their drugs.

Port Coquitlam Mayor Brad West, who supported the law, criticized the court decision.

“In case you were worried about the modest rule of not being allowed to use fentanyl in playgrounds, a judge is there to stop the 'irreparable harm.' Pathetic!” West wrote on the social media platform X, formerly known as Twitter.

“If the restriction doesn't stand, then we've truly entered the wild west of unrestricted drug use, anywhere and everywhere.”

Lawyer Caitlin Shane with the Pivot Legal Society represented the nurses association. She said the injunction shows “substance use cannot be legislated without scrutiny.”

Shane said in an interview that most people who use drugs in B.C. “live in communities that do not have safe, legal indoor spaces to use drugs.”

She said the court granting the injunction was a “welcome decision” because even though the act hadn't been brought into legal effect, it was already being enforced by police.

“We have heard, kind of, on the ground from people in communities around B.C., that police have already begun attempting to enforce this law, which was never in effect,” Shane said. “So this judgment makes absolutely certain and confirms the fact that the law is not enforceable. It is not in effect and it can't be used against people.”

Shane said the law “stands against” the provincial government's public positions about “appropriate responses to drug use and the toxic drug supply.”

“A law like this imposes even greater burden and hardship on people who are already being failed by B.C.'s laws and policies respecting drug consumption,” she said.

Shane said there had been a “backlash” since the provincial government's decriminalization approach began, and the law was passed in response to the ongoing “stigma.”

Shane said the province's approach under Premier David Eby has signalled a “change of course” since his time as a legal advocate with the Pivot Legal Society.

“It's interesting insofar as some of the things that we are advocating for are things that our premier once advocated for too,” she said.

Farnworth said the province was reviewing the court's decision and assessing its next steps.

“We're determined to keep doing everything we can to save lives in the face of the toxic drug crisis by treating drug addiction as a health matter rather than a criminal one, while recognizing that hard drugs should not be used in public places frequented by children and families, as well as vulnerable community members,” he said.

Farnworth said hard drug use should be subject to similar regulations governing “smoking, alcohol and cannabis.”

In October, the province said the new laws provided “a consistent approach throughout the province.”

Opposition BC United Leader Kevin Falcon said in a statement after the ruling that the Eby government was “reckless” with its decriminalization policy, and the act “fell woefully short and is now subject to a temporary injunction.”

“As this legislation is now further scrutinized following today's temporary injunction, it will still be illegal in most communities to enjoy a glass of wine at a picnic in the park while unchecked consumption of potentially lethal drugs such as crystal meth, crack cocaine, and fentanyl in that same park remains the reality under this NDP government,” Falcon said.

According to the BC Coroners Service, at least 13,317 people have died due to unregulated drugs in B.C. since a public-health emergency was declared in April 2016.

In an update issued at the end of last month, the service said unregulated drugs had claimed at least 2,039 lives in the first 10 months of the year.

This report by The Canadian Press was first published Dec. 29, 2023.