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

B.C.'s top court has re‐ jected the province's at‐ tempt to appeal a pause on a law restricting illicit sub‐ stance use in many public spaces. The pause was im‐ posed during a legal chal‐ lenge of that law, launched by drug user advocates.

The Court of Appeal deci‐ sion on the case brought by Public Safety Minister Mike Farnworth was issued on Friday, a ministry spokesper‐ son confirmed.

The ruling was issued orally by Justice Ronald Skol‐ rood, according to a lawyer representing the Harm Re‐ duction Nurses Association, which launched the constitu‐ tional 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 Sat‐ urday.

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

The ruling upholds a three-month temporary in‐ junction - ordered Dec. 29 by B.C. Supreme Court Chief Jus‐ tice Christopher Hinkson against enforcing the Re‐ stricting Public Consumption of Illegal Substances Act, which was passed in Novem‐ ber.

WATCH | Reaction to B.C.'s law on illicit sub‐ stance use that's been paused by a judge:

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 contin‐ ue 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," Farn‐ worth said in an emailed statement Saturday.

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

"Our government remains committed to treating drug addiction as a health-care is‐ sue and not as a criminal one."

The Supreme Court case involves the Harm Reduction Nurses Association (HRNA), which argues banning sub‐ stance 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 Janu‐ ary, 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 Thurs‐ day, and 2023 saw the most fatalities ever recorded in the province.

"Anything that has the po‐ tential to push people into covert [drug] use, into iso‐ lated use, is significantly con‐ cerning 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 po‐ tential to displace people or risk criminalization ... has a direct risk of death for peo‐ ple."

He said he understands many "people are apprehen‐ sive" about more visible sub‐ stance use and homeless‐ ness in public spaces.

But, he argued, "displac‐ ing 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 al‐ lows 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, threat‐ ens the safety of people who use drugs and is unconstitu‐ tional. But public places such as schools and playgrounds were already prohibited for drug use even without the new, much broader legisla‐ tion, Larkin said.

"Those areas are still cov‐ ered under the criminal law in the same way they always were," they said. "This legisla‐ tion is a layer on top ... which increases their risk of harm."

'Act will promote more lone drug use': judge

Hinkson's granting of the in‐ junction halted implementa‐ tion 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 ... partic‐ ularly dangerous due to an absence or a diminished de‐ gree 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 parapher‐ nalia, drug-related crimes, and "decreases in real and perceived public safety."

A month later, B.C.'s at‐ torney general appealed Hinkson's temporary injunc‐ tion until March 31, arguing in court documents that his decision was "not firmly grounded on the evidence," including he "failed to consid‐ er that the alleged irrepara‐ ble harm is avoidable by peo‐ ple who use drugs" and it im‐ properly relied on "inadmissi‐ ble opinion" as evidence.

Larkin said the lawsuit's legal team now plans to ap‐ ply 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 con‐ stitutionality of this consid‐ ered by the court so that we can move on as a society to policies, laws and programs that will actually make a dif‐ ference."