Judicial Review – Matsqui-Abbotsford Impact Society

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FOR IMMEDIATE RELEASE: Coalition of organizations representing people who use drugs ask court to set aside Canada’s recriminalization decision

Groups decry Health Canada’s decision based on political expediency, not evidence

British Columbia | June 7, 2024 – 13 non-profits, representing a broader coalition of over 20 civil society groups led by or representing people who use drugs, have filed for judicial review in Federal Court regarding Health Canada’s decision to recriminalize people who use drugs in British Columbia. The coalition represents over 15,000 people across B.C. who are forced to rely on public space due to a severe lack of affordable housing and adequate safe consumption sites. 

Eight years into the toxic drug poisoning public health emergency in B.C., the safest place to use drugs is in the company of others – ensuring someone is there to potentially save a life. Homelessness is on the rise everywhere in B.C. with many communities reporting rates nearly doubling since 2020. In Metro Vancouver alone, more than 18,000 households are on waitlists for appropriate social housing. This means that more people than ever are relying on outdoor locations to get through the day. For people at risk of toxic drug poisoning, finding a public place to use that both provides them privacy and is public enough to ensure that help will arrive in case of an emergency is a daily life or death decision.

The Timeline

Health Canada granted B.C. a provincewide exemption under the Controlled Drugs and Substances Act to decriminalize the possession of up to 2.5 grams of certain illegal drugs in limited locations in a three-year pilot project, effective January 31, 2023. Under the pilot, possession remained illegal in locations such as school grounds and licensed childcare facilities. In September 2023, the B.C. government further restricted the pilot to exclude any spaces within 15 metres of playgrounds, spray pads, wading pools and skate parks. 

In October 2023 the province passed Bill 34, which further restricted decriminalization by creating a complex and overlapping list of places where drug use is prohibited – while not identifying any places where it would be allowed. The law also abruptly expanded police discretionary powers, allowing police to remove people from public spaces based on suspicion that someone may have “recently used” unregulated drugs. Under Bill 34, police can arrest without warrant, fine, and seize or destroy drugs from people seen as non-compliant.

In December 2023, B.C.’s Supreme Court granted a temporary injunction to the Harm Reduction Nurses Association, blocking Bill 34 from coming into effect because of its potential to cause “irreparable harm.” In March 2024, the B.C. Court of Appeal ruled it was not in the public interest to allow the province to seek to appeal to the injunction order, which again blocked Bill 34 from being implemented. In November 2024, Bill 34 will undergo a legal challenge under Canada’s Charter of Rights and Freedoms. 

On April 26, 2024, B.C. sent a request to Health Canada, resulting in the decision only 11 days later to return to failed criminal enforcement policy that the coalition in now challenging. B.C.’s request to the federal government to recriminalize people circumvents the B.C. Supreme Court injunction, which is in place to protect people from suffering irreparable harm. Together, Bill 34 and Health Canada’s decision to backtrack on the decriminalization pilot will harm not only people who use drugs but all people who face the worst impacts of law enforcement, as police are given more discretion to criminalize and target people. This means a return to carding, arrests that increase a person’s risk of fatal overdose, and the all-to-common displacement practice that might be best characterized as ‘I don’t care where you go, but you can’t stay here.’

Why the Coalition is Concerned about Recriminalization

Coalition members are expressing their grave concern and asking governments at all levels to act on evidence, not politics:

“Decriminalization has gone from being a call-to-action to a tainted political weapon. Health Canada’s decision to recriminalize drugs in public places is a further entrenchment of settler colonial violence that will be implemented in ways where harm is stratified worst across class, race, Indigeneity, gender and disability, and will especially target those who cannot afford market housing.” - Brittany Maple, Matsqui-Abbotsford Impact Society

“Don’t force us to use your courts to justify our existence. If you want to say you are committed to working with Indigenous people, then listen to us. We all know that Indigenous people are racially profiled, over-policed, over-incarcerated and our loved ones are dying. This re-criminalization decision is violence against not only Indigenous people, but against those of us who use drugs and who are watching our loved ones die. This move has made it impossible to use drugs without risk of police involvement.” – Kali Sedgemore, Coalition of Peers Dismantling the Drug War

“By choosing not to consult with people most impacted by this increase in police scope, in particular Indigenous Peoples and people who live outdoors, policymakers are following the same old colonial approaches, and fueling systemic inequities. In Surrey, we have only one safe inhalation site with limited hours and spaces, so people have no option but to use outside. When pushed away from community, violence against women and fatal drug poisonings will rise, and we are going to lose more people.” – Mona Woodward, Surrey Union of Drug Users

“No one wants to go to court. But we feel we have no choice. Our lives are on the line. The number of people dying in the north is spiking and yet overdose prevention sites, shelters and services for us are shutting down. This decision to recriminalize says to us that government doesn’t care if we die – they just don’t want to see it happen.” Charlene Burmeister, Coalition of Substance Users in the North

“This decision doesn’t go back to how things were before – it is worse. The backlash and harm is going to kill us. We are asking our elected officials – stop turning away while we fight for our lives and communities. There is a path forward that would create more safety for all of us. Good policy doesn’t come from kneejerk reactions like this. We are here to help. We can build a plan to improve decriminalization policy, to help it succeed, and to show our neighbours that good policy creates safety for all of us.” – Kevin Yake, Vancouver Area Network of Drug Users/Western Aboriginal Harm Reduction Society

Governments have other options

While criminalizing and displacing people into isolation will not increase public safety or health, it will lead to more losses of life and disconnection from care. Housing is part of the solution, but it will take time and commitment by governments to fulfill the human right to adequate housing for all people. There are, however, things governments can do now.

A 2024 B.C. Auditor General report has found that B.C. has failed to adequately implement safe consumption sites in communities that need them. This is despite the Minister of Health having issued a Ministerial Order in 2016 requiring this. These services save lives – across Canada, supervised consumption sites have saved 49,000 lives between 2017 and 2023. These services can be opened quickly, staffed by people with experience of drug use and harm reduction health services providers and could provide locations for safer use immediately.

Inhalation is the most common mode of consumption and, in 2024, has already been connected to 71% of reported deaths. Inhalation services can be prioritized. While creating ventilated indoor spaces takes time and investment, governments can move quickly to support inhalation services in well-ventilated places including on patios and using event tent structures.

Unregulated drugs are the driver of this crisis, not pharmaceutical-grade substances. Pharmaceutical alternative programs create personal safety, support public safety, reduce policing interaction and criminal system involvement and help to stabilize housing, wellness and employment. B.C. and Canada can support these programs to be safer and more effective by ensuring that clinicians can prescribe the variety of substances that people need to fully remove them from engagement with the unregulated market.

B.C. can get out of the way of communities that are saving themselves. Compassion clubs have shown positive results in reducing harms from the unregulated drug supply and criminal law enforcement. Rather than support these types of community-led initiatives, Canada turned down a request for a legally authorized compassion club and in fall 2023, with the public support of the B.C. government, police raided and arrested a compassion club that had been in operation for over a year.

Below are all the Coalition member groups in this current judicial review, they are representing the many peer-led or drug-user-led programs and services across this province, amounting to over 15 thousand voices of people with lived and living experience. “As a coalition, we will always fight to improve the lives of those in our communities and against any government attempt to use the ongoing mass death crisis for political ambitions – our application for judicial review is no different.” – Brittany Graham, Executive Director, Vancouver Area Network of Drug Users

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Coalition members are not available to offer further comment at this time.

Matsqui-Abbotsford Impact Society

Vancouver Area Network of Drug Users

Western Aboriginal Harm Reduction Society

BC Association of People on Opiate Maintenance

Knowledging All Nations and Developing Unity

Parents Advocating Collectively for Kin

Coalition of Peers Dismantling the Drug War

Colalition of Substance Users of the North

Naniamo Area Network of Drug Users

East Kootenay Network & Society of People Who Use Drugs