Late last year, the British Columbia Supreme Court temporarily blocked the province from prohibiting the use of hard drugs in most public spaces.
The court’s injunction, sought by a BC nurses’ association, prevents the government from bringing its legislation into effect until March. The association argued the legislation would violate drug users’ section 7 Charter rights to life, liberty and security of person. The judge did not rule on whether a Charter violation did occur, but accepted that the nurses’ association had raised serious issues to be tried.
One can appreciate where the judge was coming from in arriving at his decision. But the ruling could have vast — and possibly counterproductive — implications for drug policy in this country.
To understand how we got here, a little recent history is required.
In all provinces but BC, federal law prohibits personal possession of small amounts of hard drugs such as heroin, fentanyl, cocaine and methamphetamine.
In response to its drug crisis, British Columbia sought and obtained from Ottawa a three-year exemption to these federal rules. This exemption order, as it’s known, took effect on January 31, 2023 and remains in force until January 31, 2026. It permits BC residents 18 years and older to possess small amounts of hard drugs throughout the province, subject to a few notable exceptions.
It remains illegal, for example, for BC residents to possess hard drugs on school premises, at childcare facilities or at airports. And in September 2023, Ottawa updated the exemption order to additionally prohibit the possession of hard drugs within 15 metres of BC’s public playgrounds, spray pools, wading pools and skate parks.
What got BC into hot water, though, was that it introduced its own legislation in November 2023, the Restricting Public Consumption of Illegal Substances Act. The act empowered police to direct people using drugs in public spaces to either stop consuming or leave that space. If they failed to comply, the police could arrest them.
The list of public spaces where consumption would be illegal under this provincial act is long. It prohibits consumption near playgrounds, spray pools, wading pools and skate parks; at beaches, sports fields, parks, regional parks or community recreational areas; or within six metres of any bus stop, publicly-accessible building or workplace.
Given this list, it is hard to think of many spaces where drug users would be able to use in public.
For the province, this was arguably the point. According to provincial statements, BC introduced the legislation both to ensure kids and families feel safe in their communities, and also to encourage drug users to consume hard drugs at supervised consumption sites.
But as the judge notes in his decision, there are only 47 supervised consumption sites in the province, and these are concentrated in urban areas. Many do not operate 24/7. Many do not provide inhalation services, despite smoking accounting for 65 per cent of unregulated drug toxicity deaths.
The judge’s concern, then, was that if BC’s legislation were to take effect, it would foreseeably lead to more deaths, as drug users would opt for lone drug use, which heightens the risk of fatal overdoses.
BC’s health minister Adrian Dix has said the province will review the decision and the government’s response. He also noted that, “In our view it takes away our ability to do what every other province does, which is to regulate where drugs can be used.”
Dix’s statement highlights the very strange position BC now finds itself in. BC relaxed its rules, and may now find it hard to tighten them.
Indeed, it makes one wonder: if BC determined it did not want Ottawa to renew the exemption order after January 2026, would the courts let it re-criminalize hard drug possession? Similarly, what would happen if drug users in other provinces challenged Ottawa’s ban on personal possession of hard drugs? Would that violate their Charter rights? (After all, if prohibitions on drug consumption violate the right to life, surely prohibitions on possession of those drugs must too.)
If these outcomes seem unlikely, consider that the Supreme Court of Canada in 2011 ordered the Harper government to continue exempting Insite — a safe injection facility in Vancouver’s Downtown Eastside — from criminal drug laws on the grounds that not exempting the site violated drug users’ section 7 Charter rights. Like BC’s current exemption order, Insite came into being after Health Canada granted the facility a three-year exemption from the application of criminal laws.
And therein lies a problem. You have elected politicians at all levels trying to balance the protection of drug users with the interests and safety of other residents. If provinces know that courts may mandate their policy experiments to become permanent, they could become reluctant to try new ones.
Worse, such decisions could give governments further reason to invoke the Charter’s notwithstanding clause, a provision that enables governments to exclude their laws from Charter application.
In short, courts risk undermining the very tool available to them for protecting vulnerable minorities — such as drug users — in the first place.
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