B.C. moves to ban drug use in public spaces

Law360 Canada (April 29, 2024, 2:59 PM EDT) -- A year after becoming the first province in Canada to bring in a pilot project decriminalizing the use of small amounts of illegal drugs, the B.C. government is turning to Ottawa to make changes to the initiative as a means of addressing significant concerns about the use of drugs in public.

British Columbia launched the pilot in January 2023 after receiving an exemption from the federal government from criminal penalties under s. 56(1) of the Controlled Drugs and Substances Act. As part of the project, adults aged 18 years and older in the province are not subject to criminal charges for the possession of up to 2.5 grams of opioids, cocaine, methamphetamine and MDMA (also known as ecstasy) for personal use.

But after several months of dealing with concerns raised about the use of illegal drugs in public, Premier David Eby announced on April 28 that his government was working with Health Canada to urgently change the decriminalization policy to stop drug use in public and has requested an amendment to its s. 56 exemption to exclude all public places. That definition includes a place to which the public has access as a right or by invitation, express or implied, whether a fee is charged for entry and on public transit.

Keeping people safe is the government’s highest priority, said Eby.

“While we are caring and compassionate for those struggling with addiction, we do not accept street disorder that makes communities feel unsafe,” he said. “We’re taking action to make sure police have the tools they need to ensure safe and comfortable communities for everyone as we expand treatment options, so people can stay alive and get better.”

The province said it is working with the federal government to make changes to the legality of possessing drugs in B.C., which it says will provide police with the power to enforce against drug use in all public places, including hospitals, restaurants, transit, parks and beaches. Guidance will be given to police to only arrest for simple possession of illicit drugs in exceptional circumstances. When police are called to a scene where illegal and dangerous drug use is taking place, they will have the ability to compel the person to leave the area, seize the drugs when necessary or arrest the person, if required.

According to the province, this change would not re-criminalize drug possession in a private residence or place where someone is legally sheltering or at overdose-prevention sites and drug-checking locations.

The request to Ottawa is not the first time B.C.’s government has attempted to deal with concerns about drug use in public. The province brought in legislation last year that banned drug use in public and recreation-focused spaces; but, in December, B.C. Supreme Court Chief Justice Christopher Hinkson put the brakes on the law by granting an injunction to stay its effects. He held the “instant circumstances” in British Columbia — namely, a public health emergency on drug use declared in 2018 — were “exceptional,” and letting the law come into effect would cause “irreparable harm” to people who use drugs.

Mike Farnworth, B.C.’s minister of public safety and solicitor general, said the province’s communities are “facing big challenges.”

“People are dying from deadly street drugs, and we see the issues with public use and disorder on our streets,” he said. “As we continue to go after the gangs and organized criminals who are making and trafficking toxic drugs, we’re taking action now to make it illegal to use drugs in public spaces and to expand access to treatment to help people who need it most.”

The province also said it will improve safety and security at hospitals by bringing in a single policy prohibiting possession or use of street drugs and additional measures to increase enforcement, support patients with addictions and encourage them toward treatment and recovery. Going forward, when patients are admitted to hospital, they will be asked if they experience any substance-use challenges. Patients will receive active support and medical oversight for addiction care to ensure people with addictions receive personalized care while their medical issues are being treated in hospital.

“People across the country are dying from poisoned drugs, and B.C. is no exception,” said Jennifer Whiteside, B.C.’s Minister of Mental Health and Addictions. “Addiction is a health-care issue, not a criminal one, and we’re going to keep doing everything we can to save lives and connect people to treatment.”

The province is also increasing the availability and accessibility of opioid agonist treatment (OAT), a medication-assisted treatment for people who have an opioid-use disorder, by implementing a provincewide virtual system. It is also integrating addiction services with health care, housing and related services and working with experts to develop methods to track prescribed alternatives with the aim of identifying and preventing diversion.

See here for more information about B.C.’s substance-use programs and policies.

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.