B.C.'s ban on drug use in public spaces is unconstitutional, lawsuit claims

FILE: A protester holds a sign during a rally over B.C.'s drug policy approach in Victoria, Thursday, April 14, 2022. (THE CANADIAN PRESS/Chad Hipolito)

An association of harm reduction nurses has filed a civil claim against the province and attorney general, calling B.C.’s new public drug consumption law unconstitutional.

The B.C. Supreme Court lawsuit alleges the Restricting Public Consumption of Illegal Substances Act, which was introduced on Oct. 5 and passed on Wednesday, infringes on drug users’ Charter rights.

The act prohibits the consumption of illegal drugs at sports fields, beaches, and parks; within 15 metres of playgrounds, pools and skate parks; and within six metres of building entrances. It gives police the ability to order an individual to stop using drugs in a prohibited place or direct them to leave, and then arrest them and seize the drugs if they don’t comply.

The province said the act aims to move drug use away from places where children and families gather and toward overdose prevention sites.

The claim says health organizations, Indigenous organizations and community groups “vocally opposed” the ban, as it “will put the heath and safety of (drug users) at extreme risk, especially given a dire lack of safe, legal places to use drugs and overlapping drug and housing crises in B.C.”

The ban comes after B.C. decriminalized the possession of up to 2.5 grams of certain drugs for personal use in January, a first-of-its-kind pilot in Canada that will last for three years. The suit says the primary purpose of decriminalization is to reduce engagement with the legal system.

The lawsuit claims the public consumption law creates new offences for conduct that is not otherwise criminal, namely using drugs that were decriminalized, and occupying public spaces if police believe “that person recently consumed an illegal substance, even if that person is no longer consuming or never consumed there.”

In an email to CTV News, a spokesperson for the attorney general’s office said, “It would be inappropriate to provide comment as the matter is before the courts.”

The claimant, the Harm Reduction Nurses Association, is asking the court to declare the public consumption law is beyond the provincial government’s jurisdiction, and declare that it goes against several sections of the Charter of Rights and Freedoms—including the right to life, liberty and security of the person and the right not to be subjected to cruel and unusual treatment or punishment.

It also wants the court to mandate enforcement of a ministerial order made by former health minister Terry Lake in 2016, when the overdose crisis was declared a public health emergency, which called for overdose prevention services in “any place there is need for those services.”

The claim alleges B.C. has not fulfilled that ministerial order, saying that the province doesn’t have enough overdose prevention sites and pointing out that the toxic drug crisis has only gotten worse since 2016.

According to the B.C. Coroners Service, more than 1,800 people have died from toxic drugs so far this year.

The nurses association alleges the public consumption act is “arbitrary, overbroad, grossly disproportionate and vague.”

It claims the act is inconsistent with the province’s goal to improve public health and safety and improve access to harm reduction for drug users.

The lawsuit notes that homeless people and Indigenous people are disproportionately affected by the toxic drug crisis, and therefore claims the public consumption law disproportionately targets them.

It also alleges the law will increase the risk of “serious psychological and bodily harm” via blood-borne illnesses and fatal overdoes, contrary to the right to life, liberty and security of the person, because it promotes “isolated or hidden drug use.”

According to the notice of civil claim filed Thursday, the Harm Reduction Nurses Association has 220 members across Canada and 76 in B.C. It says most HRNA members have loved ones who use drugs, and some use drugs themselves.

“HRNA’s clients and patients are predominantly people experiencing extreme marginalization (including those) whose drug use intersects with poverty, social exclusion, homelessness and/or race,” the document reads. “Members work with patients as they experience many of the harms of systemic oppression, including daily displacement by police… drug seizures and incarceration.”

None of the allegations put forward in the civil claim have been proven in court, and the province has not yet filed a response.