The Supreme Court of British Columbia found that blocking drug users from public spaces was associated with more overdoses, which could cause “irreparable harm.” Drug carriers with 2.5 grams or less of substances can legally approach playgrounds, pools and skate parks until the end of March at least.
At the end of 2023, the chief of the Supreme Court of British Columbia, Christopher Hinkson, made a decision on a controversial amendment in British Columbia’s (BC) drug decriminalization story.
He addressed a legal complaint about a recent law changing the terms of the decriminalization that prohibited drug carriers from being near playgrounds and other public areas. He concluded that this could cause more harm than good for citizens and blocked its implementation temporarily.
The complaint was issued by the Harm Reduction Nurses Association (HRNA) last November. The HRNA is a non-profit Canadian advocacy group that represents nurses’ interests. They released a statement stating they would challenge the new amendment, also known as Bill 34, blocking drug carriers from certain public spaces. Other advocacy and political groups like the Association of Social Workers (BCASW) also challenged the bill.
Justice Hinkson agreed with points made by HRNA, finding that the bill could cause “irreparable harm,” blocking it for an extra two months. The amendment had been passed by the Canadian legislature in September 2023 and was set to come into force in January 2024. Drug carriers with 2.5 grams or less of substances can legally approach playgrounds, pools and skate parks until March 31st 2024 at least, as per Hinkson’s judgment.
British Columbia’s drug decriminalization test
BC is the third largest province in Canada, with 5 million people. In late 2022, the Government of BC decided to implement widespread drug decriminalization in small quantities, to address an increasing number of drug overdoses in the country.
The BC Emergency Health Services (BCEHS) said they received 33,654 calls of reported overdose in 2022, an increase from from 10,000 to 15,000 calls a year prior to 2016. According to the BC government, overdoses were responsible for 189 deaths per month in 2022 across the region.
The primary substances causing overdoses are potent synthetic opioids like fentanyl, which are increasingly being laced with benzodiazepines in the Canadian illicit market, according to a study from the International Journal of Drug Policy. These laced drugs are more potent and toxic than synthetic opioids themselves, according to the study.
Implemented in January 2023, BC’s decriminalization of opioids, crack, methamphetamines and MDMA, marked a change of approach for British Columbian law, while cannabis for recreational use has been legal at the federal level since 2018. The decriminalization is intended to reduce the stigma around taking drugs, so as to protect users from the toxic illicit opioids being sold on the street.
The exemption only affects the laws against possession, allowing people to carry up to 2.5 grams of these substances with no legal consequences. Drug trafficking is still prohibited.
“The current drug policy framework of prohibition is the primary driver of this illegal, unregulated and toxic street supply,” said a Death Review Panel from the BC Coroner’s Office about overdose cases in 2022. “Until new regulatory approaches are implemented […] the risk of significant harms, death and this public health emergency are unlikely to improve.”
Attempt to remove drug users from playgrounds
In September 2023, the BC legislature requested to make a change to the three-year exemption. Bill 34 was passed to prevent drug holders from being less than 15 meters from certain spaces, notably with children, during the decriminalization period. The list mainly includes playgrounds, public pools and skate parks.
On 14th September, Canadian Minister of Mental Health and Addictions, Ya’ara Saks, approved Bill 34.
“I am granting B.C.‘s request to amend the exemption, which will come into effect on September 18, 2023, said Saks. This is a key step in ensuring people feel safe in their communities, while continuing to support some of the most vulnerable populations.”
She approved specifically of the tools it would purportedly give law enforcement to protect public spaces, who would be authorized to displace drug carriers or seize their substances. The law was set to begin enforcement in January 2024.
Supreme Court Intervention
Following the approval of Bill 34, the HRNA filed a legal injunction against BC. They claimed the amendment was unconstitutional, as it would move more drug users away from public places, leading to more fatal overdoses due to being isolated. It also criticized the lack of centers to prevent and treat drug overdose.
HRNA sought to delay the implementation of Bill 34 from January to March 31st 2024. The Supreme Court would only do so if it found that the bill could cause “irreparable harm” to citizens, as per the Canadian legal code.
Justice Hinkson addressed the challenge against BC and agreed with HRNA’s concerns. Hinkson cited a study called “Factors Associated with Nonfatal Overdose During a Public Health Emergency,” indicating that overdoses that occurred to people who were administered medical support tended to be non-fatal. The study found that taking drugs in public spaces was associated with more overdoses. Hinkson concluded that this alone could cause irreparable harm.
Hickson referenced the Death Review Report conducted by the BC coroner in 2022, in justifying his decision.
“Criminalizing drug use behavior ensures an ongoing public perception that it is deviant and shameful, creating a barrier to people seeking the support they need as well as requiring people to hide their needs for fear of criminal sanctions,” said the Death Review Report, cited by Hickson.
With the provided information, Hickson concluded that the amendment could cause irreparable harm and delayed its coming into force until March 31st 2024.
