B.C. asks appeal court to reconsider decision allowing drug consumption in public spaces

B.C.'s attorney general is appealing a court decision that put the brakes on the province's plans to crack down on drug use in public spaces.

B.C. Supreme Court Chief Justice Christopher Hinkson issued an injunction staying the implementation of the Restricting Public Consumption of Illegal Services Act after an application from the Harm Reduction Nurses Association — a national advocacy group.

The act would make it illegal to use drugs in close proximity to playgrounds, sports fields, beaches and parks, as well as within six metres of bus stops — imposing fines and possible detention as penalties.

In a notice of appeal filed Monday, the province cited six possible grounds for appeal — claiming Hinkson's order was too broad and his conclusions were "not firmly grounded on the evidence that was before him."

'The circumstances ... are exceptional'

The court case pits possible harms of enforcement to people who use drugs against the need to ensure the safety of the wider public.

In his decision, Hinkson said public illegal drug use causes harm ranging "from the loss of public space due to open drug use, to discarded needles and other drug paraphernalia, to drug-related criminal activity and decreases in real and perceived public safety."

But he found that laws forcing drug users out of public spaces might lead to death, financial and psychological harm to people already at threat because of addiction.

In a statement, Attorney General Niki Sharma said the government is "determined to keep doing everything we can to fight the toxic drug crisis and treat addiction as a health matter rather than a criminal one, while recognizing that drugs should not be used in a range of public places frequented by children and families."

The appeal notice filed by the province also faults Hinkson for relying on opinion evidence in assessing the irreparable harm needed to provide a legal basis for an injunction.

The province made a similar argument in the hearing itself, arguing that the Harm Reduction Nurses Association's arguments were "replete with anecdotal evidence, unsubstantiated conclusory statements, layers of unattributed hearsay, inadmissible expert opinions and policy recommendations."

But Hinkson said he didn't need to rely on their evidence to form a conclusion — relying instead on a 2022 report to the B.C. Coroners Service by a review panel on illicit drug deaths between 2017 and 2021.

"Ultimately, I accept that the instant circumstances in British Columbia — a public health emergency — are exceptional," Hinkson concluded.

"In these circumstances, the applicable balance is as between the public benefit in suspending legislation that I am satisfied will cause irreparable harm, and allowing the legislation to persist and militate public benefits in diverting drug use from certain areas. In light of the evidence and in the instant circumstances, the balance must fall in the former direction."