B.C. top court upholds pause on law banning public drug use

B.C.’s top court has rejected the province’s attempt to appeal a pause on a law restricting illicit substance use in many public spaces. The pause was imposed during a legal challenge of that law, launched by drug user advocates.

The Court of Appeal decision on the case brought by Public Safety Minister Mike Farnworth was issued on Friday, a ministry spokesperson confirmed.

The ruling was issued orally by Justice Ronald Skolrood, according to a lawyer representing the Harm Reduction Nurses Association, which launched the constitutional challenge.

“The Court of Appeal found that it was not in the public interest to allow B.C. to seek to appeal the injunction order,” said DJ Larkin, a lawyer with the Canadian Drug Policy Coalition, on Saturday.

“On this limited interim basis, that means this law should not come into force.”

The ruling upholds a three-month temporary injunction — ordered Dec. 29 by B.C. Supreme Court Chief Justice Christopher Hinkson — against enforcing the Restricting Public Consumption of Illegal Substances Act, which was passed in November.

CBC News did not hear the decision read in court, nor the justice’s reasons, but confirmed the outcome with both sides arguing the case.

Despite the fact the judge “declined to grant the province leave to appeal,” the ministry said, B.C. will continue fighting for its law, arguing it aims to help drug users find services while keeping other members of the public safe.

“We are disappointed with this decision and we remain committed to defending this legislation in court against the legal challenge,” Farnworth said in an emailed statement Saturday.

“We think it makes sense that laws around public drug use be similar to those already in place for public smoking, alcohol and cannabis.

“Our government remains committed to treating drug addiction as a health-care issue and not as a criminal one.”

The Supreme Court case involves the Harm Reduction Nurses Association (HRNA), which argues banning substance use in a wide range of public spaces will result in more drug users dying alone.

‘A direct risk of death’

The Court of Appeal ruling comes amid debate over drug use in public places and a day after the B.C. Coroners Service said 198 more people died from toxic drugs in January, an average of 6.4 deaths every day.

More than 14,000 people in British Columbia have died from illicit substances since 2016, the service said Thursday, and 2023 saw the most fatalities ever recorded in the province.

“Anything that has the potential to push people into covert [drug] use, into isolated use, is significantly concerning for us,” said HRNA President Corey Ranger, a registered nurse in Victoria, in an interview Saturday. “Isolation plus overdose equals death.

“A law that poses the potential to displace people or risk criminalization … has a direct risk of death for people.”

He said he understands many “people are apprehensive” about more visible substance use and homelessness in public spaces.

But, he argued, “displacing and criminalizing people who have nowhere to go in the backdrop of a worsening public health emergency does not actually stop drug use.”

Farnworth’s legislation allows police to order people using illicit drugs out of a broad range of public spaces, including near residences, transit stops, parks and beaches, including within six metres of “a place to which the public has access” and “a prescribed place.”

That, said Larkin, threatens the safety of people who use drugs and is unconstitutional. But public places such as schools and playgrounds were already prohibited for drug use even without the new, much broader legislation, Larkin said.

“Those areas are still covered under the criminal law in the same way they always were,” they said. “This legislation is a layer on top … which increases their risk of harm.”

‘Act will promote more lone drug use’: judge

Hinkson’s granting of the injunction halted implementation of the law. In his written decision, he said “irreparable harm will be caused if the act comes into force.”

“The act will promote more lone drug use … particularly dangerous due to an absence or a diminished degree of support in the event of an overdose,” he wrote. “When people are isolated and out of sight, they are at a much higher risk of dying.”

However, he agreed that using illicit substances in public places causes its own harms, including the loss of public space to other people, discarded drug paraphernalia, drug-related crimes, and “decreases in real and perceived public safety.”

A month later, B.C.’s attorney general appealed Hinkson’s temporary injunction until March 31, arguing in court documents that his decision was “not firmly grounded on the evidence,” including he “failed to consider that the alleged irreparable harm is avoidable by people who use drugs” and it improperly relied on “inadmissible opinion” as evidence.

Larkin said the lawsuit’s legal team now plans to apply for an extension of Hinkson’s original temporary injunction past March 31 when it expires.

“And then moving quickly towards a trial,” Larkin said. 

“We need to have the constitutionality of this considered by the court so that we can move on as a society to policies, laws and programs that will actually make a difference.”