BURST
The Vancouver Network of Drug Users and several other like-minded groups have lost a legal bid to have B.C. reinstate its drug decriminalization policy.
The groups had asked the Federal Court to intervene and declare that B.C.’s decision to end the decriminalization pilot project was unconstitutional because it failed to protect a user’s life, liberty and security of person and amounted to cruel and unusual punishment, contrary to the Charter of Rights and Freedoms.
VANDU and several others, including the Western Aboriginal Harm Reduction Society, Coalition of Peers Dismantling the Drug War Society and the East Kootenay Network and Society of People who Use Drugs, asked the court to set aside the province’s decision and to also find the federal attorney-general’s role in the decision unfair.
But Justice Meaghan Conroy ruled B.C. and Ottawa complied with the Charter and the applicants have not established that the decision was unreasonable or the process unfair.
In January 2023, B.C. allowed decriminalization of the possession of small amounts of opioids, cocaine, methamphetamine and MDMA in most locations of the province through an exemption from federal drug laws allowed by Ottawa, according to the decision.
But about 18 months later, in May 2024, facing what B.C.’s health minister called “significant public outcry and concerns expressed by municipalities, police and others about public drug use and related public safety issues,” the province and the federal government agreed to recriminalize drug possession, it said.
The drug user groups’ requested a judicial review of that decision.
The federal exemption for the pilot was granted in total for three years, ending on Jan. 31, 2026, and it wasn’t renewed by the province.
In her decision, Conroy noted most of the parties’ arguments focused on Section 7 of the Charter, which protects life, liberty and security of persons, and said for that right to be violated, the state would also have to act outside of the principles of fundamental justice.
She acknowledged that restricting areas where users can use drugs may lead them to consume in isolation, which increases risk because it hinders them getting help during an overdose, and that recriminalization increases the likelihood they would face jail.
But she also said the decision to end decriminalization wasn’t arbitrary because one of the goals of the Controlled Drug and Substances Act is public safety, and the decision “sought to return tools to law enforcement to address public safety concerns arising from public drug use.”
Nor was the decision grossly disproportionate or overbroad because it continued to allow personal possession of drugs in certain places, such as shelters and overdose prevention sites, and protects individuals from arrest while reporting an overdose. Also, federal prosecutors are urged not to prosecute simple possession and police will limit arrests and seizure of drugs involving personal possession, she said.
“Accordingly, the decision complies with the principles of fundamental justice and thus does not violate Section 7 of the Charter,” she wrote.
And the decision doesn’t violate other Charter sections, which involve equality rights, search and seizure, arbitrary detention, and cruel and unusual punishment, she wrote.
Conroy concluded the decision “proportionately balances the Charter rights” of users with the goals of drug laws.
She also dismissed the applicants’ arguments that the decision was unreasonable because she said the law allows the attorney general the power to decide “whether to grant exemptions (to laws) and on what terms.”
But she said the review doesn’t shield the attorney general from accountability for the decision.
While applicants had cogent arguments for disagreeing with the decision, they haven’t established it was unreasonable based on legal principles that govern judicial reviews, Conroy said.
Nor did she find the decision unfair because drug laws don’t mandate the attorney general to consult with the public before issuing an exemption.