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Mayors behind law against public drug use despite court injunction

The ruling in favour of the Harm Reduction Nurses Association imposes a temporary injunction until March 31.
The British Columbia Supreme Court has blocked new provincial laws against public consumption of illegal substances. The Law Courts building, which is home to B.C. Supreme Court and the Court of Appeal, is seen in Vancouver, on Thursday, November 23, 2023. THE CANADIAN PRESS/Darryl Dyck

Victoria Mayor Marianne Alto says she remains a supporter of provincial legislation against the public consumption of illegal drugs after it was blocked by the B.C. Supreme Court on Friday.

The B.C. government says it is trying to prevent “the use of drugs in places that are frequented by children and families,” but a ruling in favour of the Harm Reduction Nurses Association imposed a temporary injunction until March 31, pending a constitutional challenge, with the judge saying “irreparable harm will be caused” if the laws came into force.

Alto said while she still supports of the legislation, it would be a reasonable step for the court to assess its impact given the commitment to finding balance in how every order of government responds to the drug crisis.

“I did support the province’s legislation last September, when I commented that decriminalization is just one part of the complex response to the toxic drug crisis,” Alto said.

Protecting children is essential, she said.

“While the longer-term effects of decriminalization are assessed, and more addictions and mental-health services are established, it’s important to take steps that specifically protect children, and prohibiting possession of illegal substances at child-focused areas is one of those steps,” Alto said.

Nanaimo Mayor Leonard Krog said the court may be right on the law, but the decision will not advance solutions for street disorder.

“People do not want to see open drug use in their public spaces. It creates an atmosphere of public disorder,” he said.

Public Safety Minister Mike Farnworth said the government was “concerned” by the ruling.

“[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 that 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 said.

“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, wrote on social media platform X: “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.

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

Lawyer Caitlin Shane, of 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 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 B.C. 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.

Last month, the service said unregulated drugs had claimed at least 2,039 lives in the first 10 months of the year.