A bittersweet end to a year of drug policy setbacks
2023 was a year that saw political momentum move away from harm reduction. But a small win in the courts is a bit of relief before 2024
A year of setbacks in drug policy is ending on a bittersweet note: a small, temporary win in the courts.
BC Supreme Court chief justice Christopher Hinkson published his decision Friday on an application for an interim injunction against a law that would have effectively dismantled BC’s “decriminalization” pilot project. And the decision landed clearly on the side of the plaintiffs, granting an injunction until the end of March. (I’ll get into the content of the decision further down.)
The lawsuit was filed by the Harm Reduction Nurses Association (HRNA), represented by lawyers at Pivot Legal Society and the Canadian Drug Policy Coalition, and it claimed the law will cause irreparable harm not only to drug users but to those who work with them.
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The law and the pushback
The law, Bill 34, would have banned drug use in most public spaces — it effectively copies laws regulating where people can smoke. And the argument was that laws applicable to smoking tobacco should be equally applied to other drugs.
But that argument ignores the nature of prohibition and its effects on marginalized members of the community. People are forced to use drugs outside for a variety of reasons. A lack of adequate safe consumption and overdose prevention sites leaves people without enough common spaces to use drugs inside. And using in a private room, if you have one, is often dangerous — unless you have someone with you, an overdose is far more likely to result in death.
A century of prohibition hasn’t ended substance use, and a ban on public use isn’t going to change that.
Inadequate as BC’s decriminalization model may be — at a cumulative threshold of 2.5g, it leaves many drug users unable to carry the amounts they would need for personal use, especially in rural areas — there have been some positive outcomes.
Along with a 76% drop in charges for personal possession, Interior Health has reported anecdotal evidence of a decline in people leaving hospital against their doctors’ orders because they are allowed to keep their drugs and fewer drug confiscations by police.
But while the launch of BC’s decrim project kicked off 2023, it was a backlash against harm reduction that largely defined the year, with a “media frenzy” pushing anti-harm reduction messaging.
And that backlash netted material setbacks for the harm reduction cause. On top of the BC government folding on decriminalization, the Drug User Liberation Front’s compassion club was defunded, then raided, and two operators, Jeremy Kalicum and Eris Nyx, were arrested (charges have not yet been laid). Meanwhile, safe supply access has been on the decline, as the BC NDP refuses to expand beyond a prescription model and as doctors appear to fold to right-wing rhetoric on the issue.
Bittersweet news to end the year
Against this backdrop, Hinkson’s decision was a relief.
“The fact that we even need to count this as a win is a pretty strong indication of how poorly this year has gone,” said Nicole Luongo, systems change coordinator with the Canadian Drug Policy Coalition.
“If decriminalization had been implemented properly, with the appropriate checks and balances in place, if the model was sufficiently robust, and if the attendant support that people who use drugs require, including housing, had been invested in, then Bill 34 would never have appeared, or had to have appeared.”
Luongo is cautious to take too much from the decision, but “in this very narrow context, today is a success and is a win.” She said those in harm reduction have been working to hit 2024 with renewed energy, hoping to shift the political momentum.
“We as an organization, and as a coalition of organizations, are really looking to begin the new year more cognitively prepared for continuation of the backlash that was everywhere in 2023, but also just materially and strategically more prepared to begin from a place of strength,” she said.
That includes a plan by the Canadian Drug Policy Coalition to release a platform on Jan. 31, the anniversary of the decriminalization pilot project.
Courts and drug policy
“I think this ruling today is a reminder that, when offered only fact-based information, absent the purposeful flowing of disinformation and rhetoric, it’s actually quite easy to see where we’ve gone wrong and what course corrections could look like,” Luongo said.
The decision is still only temporary, with a full constitutional challenge to the law expected to be heard sometime in the spring, though when, exactly, is unclear.
There’s precedent for the courts to step in where governments’ drug policy has caused, or would cause, harm. Insite was one big one — the Conservatives under Stephen Harper sought to quash the first legal safe consumption site in North America, but the Supreme Court of Canada ruled against the government, with then-chief justice Beverley McLachlin writing: “Insite saves lives.” And the BC Supreme Court ruled against the Conservative government’s attempt to end access to prescription heroin under the SALOME trial.
While conservatives often decry rulings like these as results of an “activist court,” Luongo dismissed those claims as “nonsensical.”
“Procedurally, court decisions are constrained to a very narrow set of considerations that are not independent of ideology, but they are also not explicitly ideological or political. They are legal in nature, and the law, in this context, is different from politics,” she said.
What did the court say?
The province argued striking down this legislation would mean people could use drugs “nearly wherever they want,” but Hinkson wasn’t particularly moved by this point in his decision.
“I accept that the social harms associated with public illegal drug use range from the loss of public space due to open drug use, to discarded needles and other drug paraphernalia, to drug-related criminal activity and decreases in real and perceived public safety as reported by the British Columbia Association of Chiefs of Police,” Hinkson noted.
“I reject the submission, however, that the application before me is to permit PWUD to use drugs ‘nearly wherever they want.’ It is not asserted by the plaintiff that the province cannot pursue any law or policy on the matter in issue.”
The province also argued the HRNA’s evidence was inadequate to prove its case, but Hinkson, again, wasn’t swayed.
“I find it unnecessary, however, for me to place reliance on what the province described as anecdotal evidence, unsubstantiated conclusory statements, and layers of unattributed hearsay and policy recommendations, as I find that the evidence adduced by the plaintiff from the Death Review Report on its own could establish the risk of irreparable harm to at least some of the plaintiff’s members, and to PWUD [people who use drugs],” Hinkson wrote, referencing the BC Coroners Service’s 2022 Death Review Panel report.
How the law can cause irreparable harm
The plaintiffs laid out five points where Bill 34 would have caused irreparable harm: increased interactions with law enforcement; involuntary displacement; drug seizures; fines; and detention, arrest and imprisonment.
And Hinkson made no qualms with any of them — and it’s notable how sympathetic he appeared to be of their points.
The plaintiffs argued increased interactions with police would lead to more drug seizures and displacement of people to using drugs alone and in more hidden places, such as inside an SRO. Hinkson didn’t state that he accepts the harms of increased police encounters, but he accepted the arguments that follow.
He accepted the point that drug users found by police could end in their drugs being seized or destroyed, “which could lead to a range of harms, including withdrawal or the resort to the use of cheaper, lower-quality drugs from unknown suppliers.”
And he accepted that drug users being displaced to places where they are alone “may be particularly dangerous, due to an absence or a diminished degree of support in the event of an overdose.”
“When people are isolated and out of sight, they are at a much higher risk of dying from an unreversed overdose,” Hinkson wrote, citing the Death Review Panel report, which stated that a slight majority (52%) of deaths occurred while people were alone.
“I also accept the plaintiff’s submissions that issues surrounding displacement can override ingrained safety habits — including a tendency to use drugs with others — leading people to use alone and far from medical help. Displacement, to this extent, may readily contribute to fatalities and life-threatening infections.”
On displacement, Hinkson also accepted affidavit evidence that displacement reduces HRNA members’ ability to perform life-saving work, “rendering their members’ otherwise legal and mandated work potentially more dangerous, and may lead to death of clients, family and friends that could cause its members serious psychological harm.”
Hinkson also noted, without much comment, the HRNA’s argument that arrest is traumatizing and that people are more susceptible to fatal overdose after being imprisoned due to lowered tolerances.
And he accepted that “the unregulated nature of the illegal drug supply is the predominant cause of increasing death rates in British Columbia.”
Important symbolically, but not precedent-setting
These points form the bases for decriminalization and for safe supply, and a judge accepting them, whether explicitly or implicitly, is big, even if only symbolically.
This particular decision won’t hold too much sway over jurisprudence — that will come when the actual constitutional challenge to the law is heard in the spring, when the plaintiffs will need to clear a higher legal bar.
“Because this is an interim injunction case it doesn’t have a huge bearing on future litigation. None of the findings he makes in this application are binding on the ultimate question,” wrote defence lawyer Kyla Lee, who isn’t part of this case.
Still, the ruling likely “sends a clear message” to the government, Lee said, adding that she’s happy with the decision.
“The comments on the total inadequacy of existing services to achieve the intention of decriminalization (you know, stopping death) seem to be more than just a response to the evidence but a little bit of the court’s general frustration at the extent of the overdose death and toxic drug problem,” Lee wrote.
“Judges see people every day whose lives have been torn apart by the failed war on drugs, the toxic supply, and a lack of services and resources. They know how dire it is.”
Given the greater importance and higher bar to clear for the constitutional challenge, Lee noted the spring hearing will likely examine a larger amount of evidence. That evidence will involve not only the harms created by the law, for which we got a preview in this injunction case, but also on evidence of the law’s benefit.
Ultimately, Lee said, the plaintiffs will need to show that Bill 34, as is, violates the Charter of Rights and Freedoms. And if there is a charter violation, then it’s on the government to show why the benefits of the law justify that violation.
And that could end with the judge upholding the law or striking it down, or it could end with the judge limiting the scope of the law, Lee said.
When the decision was released, political opponents of decriminalization made a broad — and, to be clear, false — pronouncement: that drug users now have free reign over playgrounds.
“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!” tweeted Port Coquitlam mayor Brad West.
“If the restriction doesn’t stand, then we’ve truly entered the wild west of unrestricted drug use, anywhere & everywhere.”
In his statement on the decision, BC United leader Kevin Falcon similarly wrote that Bill 34 was an attempt to “walk back [the NDP’s] ideological decision to sanction the open use of crystal meth, crack cocaine, and fentanyl in parks, playgrounds, beaches and other public areas.”
There’s a pretty big problem with this narrative, though: drug users still aren’t allowed to use around playgrounds (or schools, childcare facilities, splash pads, wading pools or skateparks). The original exemption to the Controlled Drugs and Substances Act (CDSA) on which BC’s decriminalization is based included caveats that you can’t use drugs around schools, childcare facilities and more.
Bill 34 had a component that included playgrounds among the newly banned areas for substance use in provincial law. But that addition was redundant — Health Canada had already implemented an amendment to the CDSA exemption to include playgrounds, spray pads and wading pools, and skate parks. The court ruling doesn’t change that.
In fact, when that change was made to the exemption, there was little made of it because that isn’t what people were concerned about with Bill 34.
Surely they know this, right?
It’s hard to imagine BC United isn’t already aware of this, particularly as people responded to tweets by party members and MLAs to remind them that drug use is still banned in playgrounds. Still, BC United mental health and substance use critic Elenore Sturko continued to beat that drum.
If she and the party are aware of it, then they are knowingly pushing falsehoods. Neither should inspire confidence.
But the playgrounds narrative is a compelling one, and an easy one to defend if you ignore that it’s untrue: they’re allowing — nay, encouraging! — people to use drugs near kids!
It’s stoking our innate fear for children — the same reason anti-transgender rhetoric has been so successful in some places, as with the fake “crack babies” moral panic, and it was a defining feature of the satanic panic, the quintessential moral panic.
It’s not just political point-scoring, though.
It helps to justify overriding constitutional rights to maintain sweeping bans on public drug use, with BC Conservatives leader John Rustad saying his party would use the notwithstanding clause.
Given how bullish BC United has been on this issue, and their lagging behind the BC Conservatives in polling, it wouldn’t be surprising to see that party pushing the same.
And that could make future BC governments more likely to invoke it to implement damaging drug policy in the future.