Eby and Farnworth’s police power bill is dead. So, what is ‘recriminalization’?
BC's emergency response can be characterized as a ‘sanctioned massacre.’
This essay has been adapted and abbreviated from a paper originally published in the International Journal of Drug Policy by Tyson Singh Kelsall.
Last week, the BC NDP repealed Bill 34 — police power legislation that would have permitted officers to fine, arrest, displace or seize the belongings of people they suspect of drug use, which the BC NDP titled, “Restricting Public Consumption of Illegal Substances Act.”
Bill 34 had already been halted by a temporary BC Supreme Court injunction won by the Harm Reduction Nurses Association, which the BC NDP later failed to appeal, and was expected to face a full charter challenge in 2025.
Part of the BC NDP’s public-facing rationale was that their separate move to roll back their so-called decriminalization framework — what several community groups are calling “recriminalization” — meets the same goals as trying to implement Bill 34.
Recriminalization
On May 7, 2024, the BC NDP made a request to the federal government to amend the three-year decriminalization pilot to effectively criminalize all outdoor drug use.
Within one week, the federal government approved this change.
Drug user groups and healthcare workers have called this a “side-step” or “circumventing” of the Bill 34 injunction by effectively limiting the decriminalization framework to private residences and select healthcare settings. The BC NDP government frames it as a method to criminalize public drug use.
Recriminalization does not include the explicit criminalization for the suspicion of substance use through fines or arrest, unlike Bill 34. Recriminalization is about possession in a political push to criminalize people relying on public space.
Recriminalization does mean that BC’s narrow decriminalization framework now only applies to private residences, shelters, and outpatient addiction, overdose prevention, and/or drug-checking service locations. (It should be noted that how recriminalization will be implemented in some settings remains unclear, particularly within healthcare).
Thirteen drug user rights organizations submitted a legal appeal against the federal government in order to have recriminalization reversed. This judicial review will be heard in 2025, but the policy remains in place for now.
Displacement context
BC is one of a majority of jurisdictions in the world that adheres to collective drug prohibitionist policies.
Prohibitionist policies are upheld by various forms of policing power, legal tools and discretion. The enforcement tools reflected in these frameworks typically include displacement and isolation, either through compelling the evasion of law enforcement, through direct force, and/or through the severing from community through incarceration.
Recriminalization specifies that for unhoused people drug use remains decriminalized in extremely limited locations where, “unhoused individuals are legally sheltering,” while also adhering to all other municipal bylaws.
And this is in a context of there being very few safe places for unhoused people to legally shelter outdoors, particularly during the day across the province.
In 2024, the federal government commissioned a “housing advocate” to conduct an observational study. The advocate's final report echoed calls from community members, including to end forced evictions of encampments. The report also called displacement events across BC a “failure to uphold their basic rights.”
The BC NDP had also planned to pass another displacement bill in 2023 — Bill 45. Bill 45 was set to lower standards of what a “shelter” is considered to make it easier to displace people living in encampments, but the BC NDP chose to defer after public outcry from several organizations, including the First Nations Leadership Council, the BC Civil Liberties Association, and the Union of BC Municipalities.
And even though research indicates that public and social consumption tend to be statistically less likely to be fatal than using in isolation, people living outdoors continue to die at increasingly devastating rates from the toxic supply. The BC Coroners Service reported a 138 per cent rise in deaths of unhoused people between 2021 and 2022, citing that “more than nine in 10 were determined to have been caused by unregulated drugs.”
In November 2023, solicitor general Mike Farnworth told PressProgress that the BC NDP “recognize that vulnerable and/or unhoused people often do not have many reasonable options for places to consume drugs,” clarifying that the BC NDP is aware of who will have to bear the negative consequences of these policies.
Dehumanization
Drug use and possession policies have been outlined as public relations and political campaign tools for a number of actors since BC's decriminalization framework was first implemented in January 2023.
Healthcare workers have argued that drug users are being scapegoated to distract from the overlapping crises of BC's healthcare and housing sectors, including worker shortages and an 18,800-household waitlist for subsidized housing in Metro Vancouver.
BC NDP premier David Eby argued that recriminalization was reasonable as it would still protect some people “at home,” and when “someone has an overdose, that they can call an ambulance without worrying that there might be criminal consequences for that” in the legislature. But it is virtually impossible to call an ambulance on yourself while experiencing a fentanyl-related overdose. Moreover, approximately 70-80% of drug supply-related deaths in BC occur to people in private residences.
Public use has likewise been characterized as a protective factor against overdose in our emergency context. And research has shown that in urban spaces, particularly Vancouver, the risk of an overdose remaining non-fatal (vs. fatal) is higher than when compared to more rural and remote communities. In the legal case against Bill 34, BC Supreme Court chief justice Christopher Hinkson posited that using drugs socially could be the least harmful way to consume drugs during the current public health emergency.
Public health response as ‘sanctioned massacre’
Scholar Katherine McLean described resistance in the US to opening safe consumption spaces as part of a “patchy and precarious” strategy that leaves drug users to die “without sincere attempts at intervention,” characterizing it as a “sanctioned massacre.”
BC's emergency response, too, can be characterized as a sanctioned massacre.
BC’s response to the crisis has been in that same vein. After recommendations from the chief coroner-led Death Review Panel in 2023 and the provincial health officer in 2024, to urgently and meaningfully intervene in the toxic drug supply, the BC NDP rejected those suggestions on the same days, respectively, that they were received. In 2024, the auditor general also called for improved implementation of harm reduction services to save lives.
Instead, the BC NDP’s overdose response focused primarily on trying to somehow tie the unregulated drug “treatment” sector to the contamination of the drug supply, while pursuing several displacement policies, including through support for the Hastings decampment in 2023, trying to pass Bill 34, Bill 45, and now recriminalization, alongside a push to expand involuntary treatment into prisons and increase the staffing resources needed to apprehend more people more often.
Seen through the lens of a sanctioned massacre, the forever crisis, and the prioritization of law enforcement in drug law, are not “unintended consequences,” but rather a strategic direction that mirrors who the BC government is actively considering disposable, and who is deserving of life.