Nurses group plans to argue efforts to curtail drug decriminalization in B.C. are unconstitutional

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A nursing group that won a temporary injunction suspending a British Columbia law designed to restrict public drug use is asking an appeal court to leave the suspension in place until the nurses can argue that the restrictions are unconstitutional.

The group, the Harm Reduction Nurses Association, first took the provincial government to court late last year in an effort to block the Restricting Public Consumption of Illegal Substances Act, a piece of legislation intended to allow police to fine or imprison people who refuse to comply with orders not to use drugs in certain public spaces, including parks, sports fields, bus stops and building entrances.

That law, passed in November, was intended to address backlash against the province’s three-year drug decriminalization pilot project, which since January, 2023, has allowed adults in B.C. to possess small amounts of certain illegal drugs, such as such as fentanyl, cocaine, methamphetamine and MDMA.

In December, B.C. Supreme Court Chief Justice Christopher Hinkson ruled in the association’s favour. He found that the nurses had raised serious questions about whether the legislation violated drug users’ Charter rights, considering the “dire lack” of safe indoor locations for drug consumption. He imposed a temporary injunction that has prevented the government from bringing the new rules into force, pending a constitutional challenge of the law by the association.

The B.C. government swiftly filed an appeal, arguing the judge had erred in fact and in law.

But in documents submitted to the B.C. Court of Appeal earlier this month, lawyers for the nurses association, a national non-profit group, argue the judge made no error. In their response to the government’s filing, the nurses say they provided evidence to support the judge’s finding that “irreparable harm” would occur if the changes were enacted. The association argues that new restrictions on where people are able to use drugs would force them into the shadows, where they would be at higher risk of overdosing.

The nurses say the government’s appeal should be disallowed, and the injunction left in place until a court hears their constitutional challenge, because the province did not offer compelling evidence to support its position that widespread public drug consumption puts others at risk.

“The Province relies only on vague assertions without evidence and a mere presumption of irreparable harm,” the association’s court filing says. It adds that the province has not cited evidence “of any increase in public drug use, changes in the nature of public drug use, or any anecdotal or empirical evidence that drug use is happening in front of ‘vulnerable people’ since the decriminalization pilot began.”

In their appeal filing, lawyers for the province argue the injunction order is unprecedented and extraordinarily broad in scope.

They say the order represents “a significant intrusion by the judiciary into the affairs of the legislative and executive branches of government and a significant interference with democratic processes.”

A trial on the constitutionality of the law has not yet been scheduled, but is likely to be held this summer. The association has said it will argue the legislation violates several sections of the Charter, 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.

The association is also arguing that the province doesn’t have the authority to change the rules related to decriminalization, because criminal law falls within the exclusive legislative authority of Parliament, and that the Restricting Public Consumption of Illegal Substances Act is arbitrary, overbroad and vague.

A judgment on whether the province can appeal Justice Hinkson’s injunction is expected later this week.