B.C. ‘disappointed’ by decision on appeal of injunction pausing public drug use law: minister

By Ian Burns ·

Law360 Canada (March 6, 2024, 2:48 PM EST) -- B.C.’s top court has batted back the province’s attempts to appeal an injunction that put implementation of a law governing public drug use on hold, citing the fact that proceedings would be moot by the time the injunction came up for a hearing.

The Restricting Public Consumption of Illegal Substances Act was passed by the B.C. legislature in November 2023 and prohibits people from consuming certain illegal substances in public areas such as sports fields, beaches and parks. Under the law, a police officer can order an individual to cease the consumption of an illegal substance or to move from a place, and noncompliance could be punished by a maximum fine of $2,000 and/or a term of imprisonment up to six months.

But last December B.C. Supreme Court Chief Justice Christopher Hinkson put the brakes on the legislation, granting an injunction to stay its effects until March 31, 2024, while a constitutional challenge by the Harm Reduction Nurses Association (HRNA) played out (Harm Reduction Nurses Association v. British Columbia (Attorney General), 2023 BCSC 2290). He wrote 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.

And now B.C. Court of Appeal Justice Ronald Skolrood has denied the province's attempts to seek leave to appeal the injunction. He wrote the questions raised by the province’s proposed appeal may be significant, but it will be moot by the time it comes for a hearing. He added the proposed appeal would draw on judicial resources “without contributing to resolving the merits of the underlying action.”

“The respondent has again indicated that it will apply to extend the Injunction Order,” he wrote in British Columbia (Attorney General) v. Harm Reduction Nurses Association, 2024 BCCA 87. “Accordingly, the issue of the Injunction Order will continue to be litigated in the Supreme Court on the basis of a more fully developed record. That proceeding may well provide a more appropriate opportunity for appellate review.”

Justice Skolrood also noted granting leave to appeal while having the B.C. Supreme Court mull over a possible extension of the injunction could lead to parallel proceedings.

“Given that an application to renew or extend the Injunction Order is anticipated, whether before the Chief Justice or another judge of the Supreme Court, that judge will be faced with the situation in which there is an outstanding appeal of the original Injunction Order,” he wrote. “That would put the judge in the difficult, if not untenable situation, of hearing arguments on the very points that form the basis for the appeal.”

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Mike Farnworth, B.C. Minister of Public Security and Solicitor General

In a statement, B.C. Minister of Public Security and Solicitor General Mike Farnworth said the province was disappointed by the decision but remains committed to defending the Act in court.

“The legislation that passed in the legislature last November aims to help people feel safe in community spaces while also encouraging people struggling with addiction to connect with the services and supports they need,” he said. “We think it makes sense that laws around public drug use be similar to those already in place for public smoking, alcohol and cannabis.”

Caitlin Shane of the Vancouver-based Pivot Legal Society, who represented the HRNA in the case, said she and her co-counsel, D.J. Larkin from the Canadian Drug Policy Coalition, were pleased with the court’s decision.

“This is a law that the B.C. Supreme Court concluded would very likely threaten the lives and safety of HRNA’s clients,” she said. “We are surprised that despite the B.C. Supreme Court’s findings of harm, the province attempted to appeal the decision and sought a stay of the injunction — as if drug users aren’t being punished enough by government’s refusal to regulate the drug supply or establish safe, legal, indoor places to use drugs. Both Pivot and HRNA are deeply concerned that government has normalized B.C.’s 7-years-long public health emergency and believes it does not warrant an equally urgent response.”

The province remains committed to treating drug addiction as a health care issue and not a criminal one, said Farnworth.

“People struggling with addiction challenges need connections to appropriate health care services where and when they need it,” he said.

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.

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