Notwithstanding clause can save B.C. from losing drug battle

False choice threatening true harm reduction

British Columbia is asking Ottawa to roll back decriminalization of possession of small amounts of narcotics, led by NDP Premier David Eby — who fought for legalized supervised-injection sites in Vancouver with the Pivot Legal Society, before becoming executive director of the B.C. Civil Liberties Association, where he advanced similar causes. Decriminalization was something B.C. itself requested, but a lunatic judge decided last year that “decriminalization” means people must be allowed to consume illicit, hard drugs wherever and whenever they want: playgrounds, splash pads, bus shelters.

The complainant in that court case was the Harm Reduction Nurses Association, represented by the Pivot Legal Society.

It was an absolutely insane situation. Remember when people used to scoff at the notion “Canada is broken”? It was about a month ago. Now it's basically table stakes for participating in the national conversation. We haven't just lost the plot. We don't even remember where we might have left it.

Hard-drug decriminalization has never been slamdunk popular among Canadians. A poll commissioned by the Privy Council Office last year suggests 35 per cent of us feel “focus(ing) on access to health and social services such as drug treatment centres and recovery programs” is an “equally appropriate” approach to “focus(ing) on police enforcement such as criminal charges and jail time.”

But for a good few years now, there has been an unacknowledged political consensus in this country that decriminalization in the most general sense — treating addicts as patients, not criminals — is the only reasonable, practical and compassionate option. (Quick reminder here that our jails and prisons are full of drugs, and that inmates who don't manage to maintain their addictions in custody are at considerably greater risk of fatally overdosing immediately after they're released.)

Conservative Leader Pierre Poilievre has pitched himself as the old-school, common-sense anti-drug politician, famously blaming “the Trudeau-NDP approach” for ushering “hell on earth” into Vancouver's streets and parks. But Poilievre also filed an op-ed for this newspaper in 2022 in which he rejected the notion of “treating people struggling with addiction like criminals.”

“Repeating the 1980s War on Drugs is not the answer,” Poilievre argued, correctly. “People struggling with addiction belong in treatment, not prison. Prison should be for violent habitual re-offenders and kingpins who profit off these deadly and life-destroying substances.”

Poll results on issues like these depend to a great extent on how the questions are asked. I suspect Poilievre's basic “treatment not prison” position, as articulated in the op-ed, is shared by a huge majority of Canadians.

I certainly share it myself, the only proviso being that treatment very often doesn't take on the first or second or sixth try, so we need to focus on simply keeping people alive as well.

So it's absolutely maddening, and absurd, to see the B.C. government forced into this totally false choice: either criminalizing hard drug use, or tolerating hard drug use everywhere. When Canadian jurisdictions abandoned Prohibition, we weren't suddenly free to haul a keg of beer into a city council meeting or mix cocktails next to the kids' wading pool. Smoking tobacco is illegal pretty much everywhere nowadays, as is vaping.

But B.C. Supreme Court Chief Justice Christopher Hinkson determined that restricting the locations where addicts can use decriminalized drugs, as the NDP government had proposed in legislation, might bring further harm upon them — forcing them to consume in private, for example, where they would be less likely to be rescued in case of an overdose — and thus might violate their Charter rights. He granted an injunction quashing the restrictions.

“Keeping people safe is our highest priority. While we are caring and compassionate for those struggling with addiction, we do not accept street disorder that makes communities feel unsafe,” Eby very reasonably declared on Friday, explaining his decision to ask Ottawa to roll back decriminalization.

Here's what Eby should do instead: Reject Hinkson's false choice. Reintroduce the law limiting the places where people can use illicit-but-decriminalized drugs with the notwithstanding clause attached, in 72-point font in bold, brightred text. That's what the clause is there for — to use when judges go mad. So use it.

And who should support him most in that endeavour? The Harm Reduction Nurses Association, the Pivot Legal Society, the B.C. Civil Liberties Association and everyone else who supports sane harm-reduction efforts. In the name of protecting a right that does not and should not exist for someone to shoot up heroin in a bus shelter, these people have very likely managed to achieve the recriminalization of hard drugs in British Columbia.

As a harm-reduction advocate I am literally begging them to take five steps back and look at what the bloody hell they are doing, and have done.

NICK PROCAYLO / POSTMEDIA NEWS B.C. Supreme Court Chief Justice Christopher Hinkson determined restricting where addicts can use decriminalized drugs might bring further harm upon them.