Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams. Coming up in this episode, I speak with Caitlin Shane about a successful challenge to the BC government's Bill 34, which imposes restrictions on the province's drug decriminalization pilot.
Speaker: On December 29, the BC Supreme Court granted a temporary injunction to the Harm Reduction Nurses Association, putting BC's public drug consumption law on hold until the end of March. Bill 34 was passed into law in November and imposed sweeping restrictions on the province's decriminalization pilot launched a year ago.
Speaker: Caitlin Shane of Pivot Legal is one of the lawyers who represented the Harm Reduction Nurses Association and she joins me today to talk about Bill 34 and the injunction. Hello Caitlin. Hi Jane, thanks for having me. Let's start with BC's decriminalization pilot that started a year ago. Can you remind us of the changes that pilot brought into effect?
Speaker: Yeah, so the decriminalization pilot project, which spans a period of three years, was applied for by the province of BC to Health Canada. And the effect was to decriminalize the personal possession of certain substances up to a cumulative total of 2 .5 grams. So other offenses such as possession for the purposes of trafficking or trafficking remain illegal.
Speaker: it's more the personal possession by adults of certain substances. And of course there's also geographic restrictions in terms of where possession is decriminalized. So the exemption does not allow for possession or consumption in playgrounds, on school premises, licensed childcare facilities, et cetera. And what were the stated goals of the decriminalization pilot?
Speaker: There were a number of stated goals. One of the primary goals was to reduce criminal legal interactions between people who use drugs in the criminal justice system. We know based on ample research and years of experience that criminalization
Speaker: of substance use drives harm. And so part of the goal of decriminalization was to suspend the application of the criminal law, which again, we know drives harm, to reduce the extent to which people who use drugs were interacting with that system. Other stated goals were to reduce stigma. We know that criminalization drives stigma, drives drug use further to the margins and leads to isolated drug use overdose, et cetera. So it was about chipping away that stigma.
Speaker: And also, this is a bit of a lofty goal, but the idea was to give people a bit of confidence in terms of being able to access supervised consumption sites, overdose prevention services, talking to their friends and families and doctors about potential concerns they might have. And what restrictions did Bill 34 impose then on this pilot? Bill 34 broadened out
Speaker: the restricted areas where drug consumption and therefore possession could not occur. This included public doorways, areas around businesses, and public transit
Speaker: stops. And it also authorized police to take a number of measures when a person was in violation or perceived to be in violation of the act. So police were authorized to seize a person's substances, to displace that person, effectively tell them to move along.
Speaker: to impose a fine of up to $2 ,000 or to impose a term of imprisonment up to six months if it got to that level through the criminal justice system. I was looking at the list of places and it includes beaches, any kind of park, regional park, municipal park, and then an area for community recreation, whatever that is. So, I mean, it seems incredibly sports fields. It seems incredibly broad.
Speaker: It's very broad and our clients also argue that it's very hard to know. Part of the purpose of laws in Canada and elsewhere is to ensure that people know what the law is and when they're potentially in violation of it. Not only are we dealing with an incredibly toxic drug supply that is
Speaker: virtually unknowable. We're also now dealing with a mishmash of laws that don't really make very clear where possession or consumption is or is not legal. Most people are not going to have a copy of Bill 34 with them when they're in a situation where they don't have access to a safe or legal indoor place to use substances.
Speaker: So the result our clients feared was that people were just going to live in constant fear of criminalization and therefore be driven further to the shadows, which is exactly what decriminalization intended, at least in part, to avoid. Why did the BC NDP introduce this bill just 10 months after the start of the decriminalization pilot? I mean, what were they responding to?
Speaker: So part of the rationale stated by the BC NDP was the phenomenon of public drug consumption. And I want to be very clear that since the implementation of BC's pilot project, decriminalization, there has been no evidence of an increase in public drug consumption. That's not to say that public drug consumption doesn't occur.
Speaker: It has always occurred and it always will occur if people do not have access to safe legal indoor spaces to use substances. The vast majority of communities in BC do not have overdose prevention services or supervised consumption sites.
Speaker: At the same time, homelessness is dramatically on the rise throughout all of BC. And so yes, there is going to be scenarios where people have no choice but to consume substances in public, but there has again not been any increase from the time the decriminalization pilot was introduced. So
Speaker: perhaps a cynical take, it's my view that this law was very much politically motivated. I think it's quite clear at this point that there's been no evidence of an increase. And I'm not suggesting that people's concerns about public consumption are not honestly felt, but they are not evidenced. And so it was quite disappointing to our clients and to me as well to see the province moving forward with a law like this
Speaker: we know is going to further endanger people rather than take the approach of, hey, maybe enforcing that ministerial order from 2016 that requires overdose prevention services wherever there's need. That hasn't been fulfilled since 2016. But instead of enforcing that, the province is going for low -hanging fruit, which is directly putting people's lives at risk. Talk to me about the ministerial order. This is from 2016.
Speaker: So in 2016, then Minister of Health Terry Lake issued a ministerial order that requires overdose prevention services wherever there's need based on the level of overdose morbidity. And a basic interpretation of that would be to recognize that we're in a many years long crisis with overdose rates driving. Arguably, there's a need for overdose prevention services in every single community and yet
Speaker: There are very few overdose prevention services, relatively speaking. I think the number is at 47 at this point, and only 19 of those provide inhalation services, even though inhalation is one of the leading factors for overdose deaths. That order, as acknowledged by the province's own Standing Committee on Health, is not being fulfilled. The committee found that that ministerial order has been in place since 2016 and is not being met.
Speaker: So part of what our clients were saying throughout this legal action was why not enforce something like that that we actually know will provide people with safe legal indoor spaces to use substances rather than crack down in a hyper punitive way on people who are in situations that are effectively state manufactured at the end of the day. And I understand your clients were also arguing that this bill violates sections of the charter
Speaker: Yeah, so the initial application, our client sought something called an injunction, which is suspending the law from coming into force for a temporary period. And in this case, the temporary period is until such time as a court can really examine the law for potential charter violations. So at this interim stage in the application for an injunction stage, we needed to demonstrate to the court that there are
Speaker: potential charter violations at play and that to allow this law to pass as is currently would be to do irreparable harm to our clients and to our clients' clients who are people who use drugs in BC. And it is necessary for a court to examine the law in full in a proper hearing to identify whether these charter risks are founded. And so we
Speaker: obtained the injunction until such time as we have opportunity to explore it further in a proper hearing. So what did Chief Justice Hinkson say in his ruling?
Speaker: There are a lot of really incredible findings in this ruling that I think to many of us in the drug policy movement, it's stuff that we all sort of know, but that isn't necessarily part of the mainstream media narrative.
Speaker: and certainly not part of the politicians speak that we hear so regularly. So the decision found that the driving factor behind the overdose crisis is the toxicity of the unregulated drug supply. And that's really important because I think so often, and this law is a really good example, people who use drugs are scapegoated for a lot of social ills and things like the unregulated drug supply.
Speaker: And so this decision recognized that the problem is not people who use drugs. In most cases, it's not even addiction. It's an unregulated drug supply that's killing people. The court found that passing this law as is currently at a time where nearly eight people are dying every day due to overdose in BC would be to
Speaker: threaten a great deal of harm for people who use drugs, namely in that it would drive people further to the margins, that it would allow for the displacement of people, drug seizures, potential fines, potential incarceration, and that collectively these potential consequences create an environment of fear for people that, again, replicates stigma
Speaker: pushes for isolated substance use could lead to dramatic increase in overdose deaths and can't be justified at this point in time. So Justice Hinkson granted the injunction until March 31st. What happens then? So a number of things could happen in the interim or at that point.
Speaker: Basically, the law, as you said, has been suspended until that time. In the interim, BC is free to consider amendments to the law, amendments that may well address concerns of our clients in terms of constitutional risk. The province could abandon the law entirely and take a different approach to the issue. That would be
Speaker: Our hope, certainly, is to recognize that this law is not the solution and that instead we need to work to scale up overdose prevention services, put our minds toward legally regulating substances, etc. But in the event that neither of those things happen and we do proceed as expected, it would mean that we would be proceeding to trial in the new year at some point. It's not been scheduled yet.
Speaker: to have that full hearing that I mentioned earlier where we examine the law and its potential infringements on charter rights of people who use substances and our clients and see whether the law can stand or not given those risks. Well, thank you so much for talking with me today, Caitlin. Thanks so much for having me. I've been speaking with Caitlin Shane of Pivot Legal, one of the lawyers who is representing the Harm Reduction Nurses Association.
Speaker: The Red Eye Collective is based in Vancouver. You can check us out at coopradio .org slash redeye.
