Groups representing people who use drugs had their days in court from July 21-23, seeking to overturn a federal government decision to effectively end British Columbia’s decriminalization pilot less than halfway through its three-year run.
BC had received an exemption from the Controlled Drugs and Substances Act (CDSA) to decriminalize possession of up to a cumulative 2.5 grams of cocaine, heroin and methamphetamine, beginning at the end of January 2023.
Section 56 of the CDSA allows Health Canada to provide exemptions for medical or scientific purposes, or if it is in the public interest. That provision also paved the way for supervised consumption sites.
But while BC’s decrim program was supposed to last three years, the province began attempting to effectively end it only nine months in.
It started with Bill 34, which severely restricted outdoor drug use. When that was blocked by a temporary court injunction, the province turned to Health Canada to change the CDSA exemption for even more stringent restrictions on public drug use.
The provincial government cited concerns about public safety. But lawyers representing a coalition of 13 drug-user groups and nonprofits argued in court that the move was purely political.
The federal government’s decision to recriminalize drug possession in all BC public spaces was granted on May 7—less than a week after the provincial government applied for the sweeping changes, with no consultation with people who use drugs.
Lawyer Jack Ruttle said in federal court that Health Canada had a legal obligation to consult Indigenous groups and people who use drugs before making such a drastic change.
That, argued Jack Ruttle, one of three lawyers representing the coalition, stood in stark contrast with the six months Health Canada took to consider initiation of the decrim pilot—and even with the one month the agency took to consider a minor September 2023 amendment that excluded playgrounds, splashpads and skateparks.
Ruttle said in federal court that Health Canada had a legal obligation to consult Indigenous groups and people who use drugs before making such a drastic change.
Instead, lawyers said, officials ignored a May 6 letter from people who use drugs pleading for consultations.
Lawyer Lindsay Frame argued that the province turning to Health Canada to seek even more sweeping restrictions than in Bill 34 amounts to “mischief,” given the earlier court decision that found the government’s first attempt potentially unconstitutional.
Frame pointed to comments by the BC Supreme Court’s then-chief justice Christopher Hinkson in his January 2024 decision to grant a temporary injunction on Bill 34.
Provincial government lawyers had contended opponents of the legislation wanted to allow people to use drugs “nearly wherever they want.” But Hinkson wasn’t convinced, saying the province “can always relegislate in a manner that meets constitutional standards.”
At issue was the broad nature of the legislation. Bill 34 gave police the power to tell people to move along if they merely suspected them of using drugs in parks, beaches and within six metres of doorways and bus stops. These restrictions covered nearly all of Vancouver’s Downtown Eastside, where many people use drugs outside, opponents argued—and such broad discretionary powers for police often result in abuses of power.
But rather than relegislate, the province turned to Health Canada to circumvent the courts, Frame said.
Health Canada’s rush to approve recriminalization was particularly egregious, Frame said, given the heightened risk of death if people are pushed to use drugs alone.
When Health Canada approved the September 2023 amendment to the decrim pilot, she continued, the agency took a balanced approach, consulting people who use drugs and Indigenous groups to ensure the changes weren’t out of line. While the exclusion of parks and beaches was considered then, input on how people who use drugs sometimes shelter in those places saw the idea rejected.
“We say that makes a lot of sense because there’s a balancing going on,” Frame said.
She noted that at the time, Provincial Health Officer Bonnie Henry questioned whether there was actually an increase in public drug use that could be attributable to decriminalization, when Metro Vancouver has seen a 32-percent increase in homelessness in recent years.
Henry had balanced any potential issue of increased public drug use against the risk posed by criminalization—that is, people being pushed to use alone in secluded spaces where they are at greater risk of dying from overdoses.
“It’s not clear to us there has been any change in terms of the underlying facts and evidence between the first and the second amendment,” Frame said.
All that had changed, she argued, was public perception and political pressure.
Health Canada’s rush to approve the decision to recriminalize possession in public spaces was particularly egregious, Frame said, given the heightened risk of death if people are pushed to use drugs alone.
Justice Meaghan Conroy appeared to find BC government lawyer de Lima’s arguments dubious.
Provincial government lawyer Fernando de Lima, however, sought to argue against the idea that decriminalization could reduce overdose deaths. He noted that the pilot was always just one of a number of tools to address a multi-faceted issue, including a variety of harm reduction measures and treatment.
Despite decriminalization, drug toxicity deaths had increased to their highest point ever in 2023, de Lima said, and the 2023 total wouldn’t have been available to Hinkson in January 2024, impairing his ability to make a decision based on all the facts.
By the time of Hinkson’s decision, data had been made public for the first 10 months of 2023.
Justice Meaghan Conroy appeared to find de Lima’s arguments dubious.
“Would you acknowledge it’s very hard to draw causation from that in any way?” she asked him. “Is it uncontroversial to say that it’s less risky for folks to use not alone?”
De Lima responded by pointing to the Good Samaritan Drug Overdose Act, which protects people who call 911 for an overdose from simple possession charges.
But Conroy pressed him multiple times on the matter, saying the question was about people being pushed to use alone due to criminalization.
De Lima conceded there was “probably … a residual possibility that would occur.”
But prosecution services both provincially and federally have been given directions not to pursue charges in cases that only involve simple possession of drugs, he maintained.
Others, however, have noted that charges are not the only cause of fear among people who use drugs. Drug seizures by police are associated with increases in overdoses, and some have pointed to the violence that can take place following drug seizures and other related harms.
On the matter of drug seizures and arrests, lawyers for the coalition noted that the decriminalization pilot was a success. Frame pointed to a 96-percent drop in drug seizures and a 77-percent drop in simple possession charges.
Yet federal government lawyer Adrienne Copithorne argued that the original decrim exemption did not set a new standard to which people have a constitutional right.
Adding more restrictions to the exemption only reverts closer to the CDSA status quo, Copithorne said, and the coalition hasn’t challenged the constitutionality of that legislation. She noted the court found section 4(1) of the CDSA, which criminalizes simple possession, to be compliant with the Canadian Charter of Rights and Freedoms, and said many of the coalition’s arguments have been against criminalization broadly.
Coalition lawyers also noted the ticking clock, when the pilot is due to expire in January 2026.
Judicial reviews of administrative decisions are typically sent back to the decision-maker—in this case, Health Canada—for reconsideration. But the coalition’s lawyers argued that the judge should instead simply cancel the May 7 decision.
Frame argued that even if the matter were sent back to the agency, the effect should be to revert back to the conditions under the first amendment, because that would be the status quo prior to a faulty decision.
Coalition lawyers also noted the ticking clock, when the pilot is due to expire in January 2026. But it is not clear when the judge will come to a decision.
A federal court judge heard a comparable case in March 2024, concerning an exemption application for a compassion club operated by the Drug User Liberation Front, but no decision has yet come out of that.
Photograph by Katrin Bolovtsova via Pexels
