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Rob Shaw: Odds stacked against BC NDP’s restricted public drug-use legislation

Experts, advocates at loggerheads with province as constitutionality of legislation awaits the courts
"That next step of making hard drugs more widely available is not one that's on the agenda for British Columbia," says B.C. Premier David Eby.

Premier David Eby says B.C. will not move toward regulating hard drugs like cocaine, meth and heroin, even as some drug advocates and the province’s coroner continue to call for that step in response to the worsening overdose crisis.

“We’re definitely not going in that direction,” Eby said in a year-end interview.

“I think that the best path forward is a combination of saying: Look, we're not going to put you in jail, you can come forward, you can ask for support, and that the support is there.

“But that next step of making hard drugs more widely available is not one that's on the agenda for British Columbia.”

Eby’s comments came before the B.C. Supreme Court granted an injunction last week against his government’s new law restricting open drug use in public places like bus stops, beaches and parks. The ruling forbids government from enacting its law before March 31, 2024, until the larger question of its constitutionality is settled by the courts.

Eby said he sympathizes with Chief Coroner Lisa Lapointe, who is leaving her post frustrated that his government has not expanded safe supply and moved towards regulating hard drugs in order to curb another record year of deaths. More than 13,000 people have died in the last six years, since B.C. declared toxic drugs a public health crisis.

“The coroner … she has to talk to all these families,” said Eby. “She's looking for solutions just like everybody else. And she has to deal with all this death that comes from it.”

B.C. currently decriminalizes personal possession of small amounts of drugs and offers medical-grade prescription alternatives, called safe supply, for those suffering addiction. Overdose deaths, however, continued to climb in 2023.

Lapointe, Provincial Health Officer Dr. Bonnie Henry and Children’s Representative Jennifer Charlesworth have suggested the province move toward a regulated cannabis-style model, in which the government would create or buy a variety of clean, hard drugs, and then legally distribute or sell them. In doing so, the government would push out organized crime’s toxic supply.

Neither the BC NDP government, nor the Opposition BC United party, support the idea.

BC United has called for an end to decriminalization, and refocus on addictions treatment spaces. The NDP tried to modify decriminalization with expanded restrictions on public use, to address concerns from numerous mayors who say public disorder has worsened on their streets due to the change.

Lapointe may be unable to convince the NDP government to change its policies with her reports, but her work certainly has the ear of Supreme Court Chief Justice Christopher Hinkson.

Hinkson cited Lapointe’s Death Review Panel reports into toxic drugs in three key sections of his injunction ruling: The real-world context in which he viewed the impact of government’s new law, the danger of displacing drug users from public spaces into using alone, and the irreparable harm it will do to vulnerable users by putting more lives at risk.

Lapointe’s work was so highly regarded by Hinkson that he used it to cut through a debate between government and the Harm Reduction Nurses Association over whether the association’s affidavits and evidence from front-line drug users and nurses was sufficient.

“I find it unnecessary, however, for me to place reliance on what the Province described as anecdotal evidence, unsubstantiated conclusory statements, and layers of unattributed hearsay and policy recommendations, as I find that the evidence adduced by the plaintiff from the Death Review Report on its own could establishes [sic] the risk of irreparable harm to at least some of the plaintiff’s members, and to PWUD [people who use drugs],” wrote Hinkson.

Solicitor General Mike Farnworth said he was “concerned” by the ruling. But the NDP government is not panicking. The March 31 injunction timeline is relatively short, and the province still hopes to win the larger constitutional ruling before then.

In the meantime, if the government wanted, it could address a concern Hinkson raised in his ruling that there aren’t enough overdose prevention or supervised consumption sites to give people a place to use drugs safely if they are restricted from public spaces by the government’s new law.

There are only 47 such sites across the province, few are located in rural B.C., none operate 24-7 and only 40 per cent allow for drug inhalation when 65 per cent of overdose deaths were caused by inhaled toxic substances, Hinkson noted.

That would not solve the overdose crisis by any means. And it might be difficult for government to convince some municipalities to allow more consumption sites when they are already cited as the epicentres of crime and disorder in some communities.

Still, it certainly wouldn’t hurt the government’s case.

Based on Hinkson’s initial ruling, and his deference to the coroner, it looks like the NDP will need all the help it can get to backstop the constitutionality of its legislation restricting public drug use.

Rob Shaw has spent more than 15 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio. [email protected]