The federal government was in court this week listening to arguments that it made a mistake when it allowed British Columbia to roll back its decriminalization pilot project.
Counsel for a coalition of 13 drug user advocacy groups argued in an application for a judicial review that Health Canada didn’t properly consider all the evidence before it when it broadly recriminalized public drug use in 2024.
Canadian drug laws are set out in the federal Controlled Drugs and Substances Act. To provincially change drug laws for decriminalization, B.C. had to ask Health Canada for an exemption under the act. It later asked Health Canada to amend that exemption to recriminalize public drug use.
The process will see a federal judge examine the evidence that was available to the federal government at the time, and rule on whether or not the government’s decision to allow the decriminalization rollback was fair.
Justice Meaghan M. Conroy heard the coalition’s arguments Monday and Health Canada’s defence Tuesday. She is expected to make a decision in the coming months. She could agree the decision was unfair and ask Health Canada to go over the evidence again, say the decision was fair and no further action is needed, or something in between.
While B.C.’s government has made a lot of changes since decriminalization was introduced in January 2023, the judicial review is looking at only the most recent change, which essentially made it illegal again to have or use drugs in all public spaces across B.C.
Decriminalization was a three-year pilot project introduced by the BC NDP to help people access harm reduction services and reduce the number of fatal overdoses. It let anyone 18 and older carry and use up to 2.5 grams of opioids, methamphetamines, powdered cocaine or MDMA in most places across B.C. without risking arrest.
There were some exemptions — drugs were not allowed on school grounds or licensed child-care facilities, for example.
In September 2023, the province added to that list, making playgrounds, splash pads, wading pools and skate parks drug-free zones.
One month later it attempted to amend decriminalization further with Bill 34, which would have given police additional powers to control people who use drugs, or people who were suspected of using drugs, and introduced a confusing patchwork of places where people weren’t allowed to use drugs.
But Bill 34 was blocked by a temporary injunction before it could come into force, after a judge said the bill could cause “irreparable harms” to people who use drugs.
After Bill 34 was blocked, the province asked Health Canada to make possession and public drug use illegal again in April 2024. Drugs were still allowed in homes or shelters.
This has been dubbed “recriminalization” by drug user advocacy groups. The request was approved by Health Canada.
This decision is the subject of the judicial review.
B.C.’s Ministry of Health told The Tyee that decriminalization is just one part of a multi-pronged approach it is taking to address toxic drug deaths. Drug deaths have been climbing since early 2014 when the synthetic opioid fentanyl started being added to illicit, unregulated drugs in the province. Unregulated drugs have killed more than 17,800 British Columbians since then.
Representing the coalition were lawyers Lindsay Frame and Jack Ruttle, who argued recriminalization contravened the general goal of Canada’s drug policies, which is to keep people healthy and safe.
Prohibiting public drug use, Frame argued, will push people to use drugs while isolated or alone, which increases their risk of fatal overdose because someone might not be around to call 911, administer naloxone or provide first aid.
The current unregulated drug supply is often referred to as “toxic” because of the unpredictability and potency of the supply, which can mean a regular dose can include unexpected drugs, such as benzodiazepines, and be hundreds or thousands times more potent than expected.
Representing the federal government was lawyer Adrienne Copithorne, who delivered a technical argument, focusing on how most of the coalition’s complaints went against the broad drug prohibitions laid out in the Controlled Drugs and Substances Act, rather than Health Canada’s decision to roll back decriminalization.
Decriminalization didn’t set a permanent standard that potential future harms can be compared against, she added. It was meant to be only a temporary measure that the health minister could adjust as needed.
The federal government was asking to throw the case out due to these technicalities.
How prohibition harms the most marginalized
The court heard from the coalition that one reason B.C. asked Health Canada to recriminalize drugs was that police weren’t able to maintain public order, and the “vibrancy” of public spaces was being impacted by people who use drugs.
But even with decriminalization, police still had laws against public intoxication, littering and trespassing, Frame said.
Copithorne disagreed, pointing out how police tried to use the tools they had and later asked for more power when those tools weren’t working.
Frame said the public and political pushback against decriminalization often conflated poverty and the rise of homelessness with decriminalization.
There is no evidence that decriminalization increased drug use, she said. But there was an increase in homelessness that made more people visible while they used drugs, she said.
Copithorne said the core problem was still that people were using drugs in public and causing a disturbance.
Frame also told the court that recriminalization disproportionately impacts marginalized communities, effectively treating them as second-class citizens.
For example, remote Indigenous communities are less likely to have access to harm reduction sites where they can use while supervised by someone who can step in if there’s an emergency, such as an overdose prevention site or supervised consumption site, she said.
Indigenous people are disproportionately harmed by unregulated drugs, and recriminalizing drugs will reintroduce a lot of those harms, Frame said.
At the time of Health Canada’s decision to recriminalize drugs, the crisis was killing seven people in B.C. per day. Indigenous people were dying at six times the rate non-Indigenous people were, and First Nations women were dying at 12 times the rate of non-Indigenous women in the province, she said.
“Racism, colonialism and intergenerational trauma all contribute to these drug deaths,” Frame said.
Copithorne said the change doesn’t specifically target any particular groups and is applied to all people in B.C. equally.
Frame argued that there is a “profound unmet need for places to safely use” across the province, which means unhoused people have nowhere else to use but in public spaces.
But using in public spaces increases a person’s risk of interacting with a police officer, which can lead to arrest or drugs being confiscated.
Both things increase a person’s risk of a fatal overdose, Frame said.
When someone’s drugs are confiscated, Frame said, they might have to turn to an unfamiliar supply, risk going into life-threatening withdrawal or lose drug tolerance, which puts them at a higher risk of overdose the next time they use.
An arrest can impact a person’s housing, job or access to their children.
“Criminalization feeds into cycles of harm,” Frame said.
Kali Rufus-Sedgemore said they feel “hopeful” that Conroy “will see the government did something wrong.”
Rufus-Sedgemore is the executive director of the Coalition of Peers Dismantling the Drug War. They spoke to The Tyee on behalf of the coalition of 13 organizations that applied for the judicial review. Rufus-Sedgemore said politicians have been feeding into a “mass hysteria” about people who use drugs, which ignores people’s humanity and overlooks the reasons why they might take drugs.
Rufus-Sedgemore, who has ADHD, takes methamphetamine, for example. They say drug use calms their brain down and lets them work effectively in their community. They sometimes use a prescription to treat their ADHD but say the medications are expensive, can make them sick and are not strong enough to properly medicate them.
But police and health-care workers don’t see that and treat Rufus-Sedgemore, who is from the ’Namgis First Nation/Kwakwaka’wakw, like they might become violent at any moment.
This is something Indigenous people and stimulant users often have to deal with, Rufus-Sedgemore told The Tyee.
“I’ve never been violent,” they say softly. “But if I go to St. Paul’s [Hospital] I have to take a sobriety and drug test, with a security guard posted outside of my room. I don’t drink and I have to wait for hours before someone even asks me what’s wrong.”
To actually end the ongoing toxic drug crisis, Rufus-Sedgemore said, the government needs to bring back decriminalization, introduce a regulated safer supply that is more accessible and actually separates people from the unregulated supply, and create comprehensive drug education for kids.
They’ve worked with youth before and remember being asked if you can un-burn microwave popcorn by microwaving it again, or, if drugs are making you feel weird, taking more drugs will make you feel better.
Kids are still figuring this world out and won’t know something if we don’t teach them, they said.
