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Drug users have legal right to use anywhere, says B.C. harm-reduction nurses' lawsuit

Harm Reduction Nurses’ Association is challenging a law that bans drug use in certain public areas.
Needles are seen on the ground in Oppenheimer Park in Vancouver. THE CANADIAN PRESS/Jonathan Hayward

B.C.’s new law banning use of illicit drugs close to public areas — including playgrounds, beaches, bus stops, businesses and residences — infringes on drug users’ constitutional rights, according to a new lawsuit.

Earlier this year, the province began a three-year pilot decriminalizing possession of small quantities of illicit drugs. Last month, it introduced an amendment banning drug use near various public and recreational spaces to encourage people to use overdose prevention sites.

Now, the Harm Reduction Nurses Association is asking the courts to kill the rule, according to a lawsuit filed in B.C. Supreme Court.

The lawsuit, naming the province and the attorney general as defendants, alleges the Restricting Public Consumption of Illegal Substances Act — which received royal assent on Nov. 8 — infringes on various Charter rights, including the protection of life, liberty and security, protection against cruel and unusual punishment, and protection against discrimination.

Lawyers for the Pivot Legal Society also filed an application under the provincial Constitutional Question Act, challenging the validity of the act, according to a separate notice filed in court.

The nurse association’s 76 members in B.C., some of whom use drugs themselves or have close family or friends who use drugs, say they work with people who have experienced the “harms of systemic oppression” stemming from police interactions, displacement, seizures and imprisonment, according to the lawsuit.

It said in the first eight months of this year, 1,645 people died of overdose in B.C. It said those without homes, on social assistance and of Indigenous heritage are disproportionately affected by the drug crisis.

The province said the primary purpose of restricting illegal drug use around playgrounds, wading pools, skate parks, sports fields, beaches, parks and other areas was to reduce illegal drug use in areas where families and children gather.

Health and Indigenous organizations and community groups have “vocally opposed” the act because of concerns it will put people who use drugs under “extreme risk, especially given a dire lack of safe, legal places to use drugs” in B.C., the claim said.

The nurse association is asking the court to declare the new law outside of provincial powers.

It alleges the act creates new criminal offences for conduct that was decriminalized under the decriminalization pilot, namely using illegal drugs. And because the act prohibits people from remaining in any of these areas, an officer who reasonably believes a person recently consumed illegal drugs can charge them “even if that person is no longer consuming or never consumed there,” it said.

None of the allegations have been proven in court and the province has not filed file a response.

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