British Columbia’s drug policy shift to decriminalization has been met with a mix of anticipation and concern. In this episode, we take a closer look at the nuances of the decriminalization initiative, the legal hurdles it presents, and the actual effects it has on public spaces and health.
The episode begins by unravelling the intricacies of the federal exemption that BC received, allowing for the decriminalization of small amounts of certain drugs. This exemption is particularly significant because drug criminalization is a federal matter in Canada. The provincial request led to a controversial policy change, which promised to reshape the approach to drug use and addiction within the community. However, the aftermath of this decision reveals a troubling trend. Despite the exemption, drug-related fatalities have not shown a significant decrease, and there has been a noticeable rise in public drug consumption.
The public outcry led to the introduction of BC’s Restricting Public Consumption of Illegal Substances Act, a piece of legislation that came under fire almost immediately. The act’s title suggests a broad prohibition of public drug use, yet in practice, it sets forth a much narrower scope, limited by the requirement of police intervention. This act has faced a legal challenge spearheaded by the Harm Reduction Nurses Association, which resulted in an interim injunction that delays its implementation. The court’s decision is a reflection of the delicate balance between law enforcement and the rights of individuals, particularly those battling addiction.
Delving deeper into the policy’s impact, the episode underscores the stark reality of the fentanyl crisis in BC. While the intentions behind the decriminalization were undoubtedly geared towards positive change, the policy has struggled to meet its objectives. The most vulnerable populations remain at risk, and public spaces, such as bus stops, have become inadvertent venues for drug use. The conversation with Michael Mulligan highlights the disconnect between well-meaning legislation and its practical implications.
As the episode draws to a close, it emphasizes the need for evidence-based policies that effectively address the root causes of drug addiction and the associated public health concerns. The current situation in British Columbia serves as a cautionary tale of how the absence of a comprehensive support system can lead to policy failure despite the best intentions of lawmakers. The ongoing legal battles and public debates are a testament to the complex relationship between drug laws and public health, a relationship that requires constant re-evaluation and adjustment.
The podcast episode provides a sobering yet insightful look at the challenges faced by communities in BC as they navigate the evolving landscape of drug policy. It serves as a reminder that the road to effective drug legislation is fraught with obstacles that require a thoughtful and informed approach. With experts like Michael Mulligan lending their voices to the conversation, the public is better equipped to understand and engage with these critical issues.
For more legal insights and discussions on the pressing issues facing our society, tune in every Thursday to CFAX 1070. The dialogue surrounding British Columbia’s drug policy is just one example of the many ways in which the law intersects with our daily lives, shaping the fabric of our communities.
Transcript of the show:
Legally Speaking Jan 4, 2024
Adam Stirling [00:00:00] Time for our regularly scheduled segment with Barrister and Solicitor for Mulligan Defence Lawyers. Legally Speaking on CFAX 1070 with Michael Mulligan. Morning Michael, how are we doing?
Michael T. Mulligan [00:00:11] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:13] Despite it being at a time of the year, it’s not usually known for a lot of news and a lot of, uh, developments. We have some very interesting stories on the docket this week, don’t we?
Michael T. Mulligan [00:00:24] Indeed we do, and you know, I thought it would be useful to start by giving some background to what’s been going on with drug decriminalization.
Adam Stirling [00:00:35] Yes.
Michael T. Mulligan [00:00:36] in BC yes, how it came about and then that, injunction or interim injunction, the other week that, generated lots of interest delaying the implementation of the B.C. legislation called the Restricting Public Consumption of Illegal Substances Act. But the background to that decision is important to understand what it is and what it isn’t. And so, the background of all of this, it’s important to understand is that the criminalization of drugs is a federal matter in Canada. The province of British Columbia doesn’t decide whether drugs are illegal or not illegal. So, it just not up to provinces in Canada. so what happened here is that the province of British Columbia made a request to the federal government to provide an exemption from the federal law that makes it illegal to possess things like fentanyl and crystal meth of various other drugs. , and there’s a section of the federal legislation that criminalizes possession and trafficking and, so one of all of those drugs, it allows the federal government to grant an exemption to the legislation. And you can think of various reasons in the past where that might have been sensible. Let’s say you wanted to authorize some scientific testing of a substance or something of that sort. Right. So, you don’t want to criminalize the scientists doing a test or something, right? So, there’d be authority to permit that. this request or this exceptional request came from British Columbia to the federal government asking that, small, a relatively small quantities of all of these drugs be, put into this, an exemption so that they would no longer be criminal to possess in British Columbia. They made that request. The province of British Columbia made that request of the federal government, and the federal government agreed. And that’s how it is that it’s not currently criminal to possess small amounts of these drugs, 2.5g, in British Columbia in most locations.
Adam Stirling [00:02:47] hmm.
Michael T. Mulligan [00:02:47] That exemption came into effect January 31st, 2023.
Adam Stirling [00:02:51] Mhm.
Michael T. Mulligan [00:02:52] And so when we’re looking at how things have gone and have that worked right. Because the stated goal of that was to reduce the number of overdose deaths in British Columbia.
Adam Stirling [00:03:02] Yes.
Michael T. Mulligan [00:03:02] Prior to that, British Columbia declared an emergency as a result of how many people were dying. So that’s the date that started January 31st, 2023. Another interesting element of that is that when British Columbia, the British Columbia government, asked the federal government for this exemption, they set out a bunch of things they were going to do to make that work. And as a cover, you know what, letter back to the provincial government, along with the approval,
Adam Stirling [00:03:30] mm hmm.
Michael T. Mulligan [00:03:30] The federal government sent a letter saying, we’re doing this, but we confirm all of the very comprehensive things you’ve indicated you’re going to be doing, in order to make this hopefully work.
Adam Stirling [00:03:42] yes.
Michael T. Mulligan [00:03:42] This experiment, because it’s temporary, right? It’s not a permanent suspension of the law. And so the federal government settled various things was, you know, law enforcement readiness, communication of the public, indigenous engagement, and things like alternative measures, treatment and, interestingly, a requirement that the provincial government provide statistics and create a dashboard, is modelled on the Covid dashboard, so that you could monitor how is this working? Right. Because the idea is you’re to have a, um, evidence-based policy. Lots of people have theories about things, right?
Adam Stirling [00:04:19] yeah.
Michael T. Mulligan [00:04:19] You know, what impact does stigma have, or would this encourage people to get more treatment or how is this going to play out? And so, there’s a requirement that the province create a dashboard which is online, in which you can go to and look at. To look at the statistics of things like drug deaths or unregulated drug deaths. And you can break it down by the whole province, by month, by area of the province, by age, sex, however you want. and so you can see whether, you know, sort of, well, what impact what’s been going on, what are the trends and the broad trend when you go and look at that and to encourage people to look at it and break it down and look at it in different ways. But the broad scope of it is that there was a large increase in the number of deaths that coincided with Covid. Right. Large, probably a function of people losing their job and dislocation and all of that.
Adam Stirling [00:05:11] Yes.
Michael T. Mulligan [00:05:12] But then the changes which were made, on January 31st, 2023, have not had a marked impact on the number of people dying. They just haven’t.
Adam Stirling [00:05:25] mm hmm.
Michael T. Mulligan [00:05:25] Look at it. You know, by region, sex, however you want to break it down. And I should say, when you’re looking at that, if you take the time to look at that dashboard, you could find it by googling it.
Adam Stirling [00:05:35] mm hmm.
Michael T. Mulligan [00:05:36] One of the things to be cautious about looking at the stats, you’ve got to look at the notes for them.
Adam Stirling [00:05:40] Yeah,
Michael T. Mulligan [00:05:41] They are publishing the number of people dying from unregulated drug deaths. And so, the stats, by their definition, would exclude people who were dying of overdoses as a result of drugs that are prescribed to them.
Adam Stirling [00:05:53] hmmm.
Michael T. Mulligan [00:05:54] Some people are now getting prescribed drugs, right? Which would otherwise be illegal. That’s the safe supply, part of the equation.
Adam Stirling [00:06:04] mm hmm.
Michael T. Mulligan [00:06:04] those are not included in these stats. The stats, when you’re looking at that, if you go and look at the dashboard or people that are dying from unregulated drugs. So that’s important to break and bear in mind. They also you can break it down by total deaths where you can look at it, in terms of deaths per hundred thousand to take into account increased population. But any way you cut it, the steps do not seem to bear out a decrease in the number of deaths, following decriminalization, at least so far. And we’re into this now for about a year. Now, that’s the background of it. That’s how we got to where we are. Now, a couple of other things happened. Of course, people started seeing all kinds of increase in the number of people who were using drugs openly in the public, and that’s probably to be expected, right? Well, it’s no longer criminal to do something. People aren’t hiding their drug use, so they’re using it using drugs all over the place. That produced, I think, legitimate public concern about the appropriateness of that. And two changes were made. And it’s important to separate the two changes. One change that occurred was a change to that federal exemption. The federal government removed some areas from their exemption. Remembering drugs are federal.
Adam Stirling [00:07:18] yep.
Michael T. Mulligan [00:07:19] They decide whether they’re criminals or not.
Adam Stirling [00:07:20] Yeah.
Michael T. Mulligan [00:07:21] And so they changed on September 18th. That exemption only provided that it was no longer an exemption if you were within 15m of any play structure in a playground, 15m of a spray pool or wading pool, or 15m of a skate park. Those were the On September 18th, the exemption stopped applying to those places. That is unchanged. The injunction or the temporary injunction that came in with respect to British Columbia legislation had no impact on those things. And so, it remains a criminal offence, in fact, to possess drugs in those places. Amusingly, I must say when I read the actual regulatory actual, uh, requirements there, um, that exemption for 15m of any wading pool, uh, defines a wading pool based on the British Columbia, pool public Health Act Pool Regulation. Indeed. We have such a thing.
Adam Stirling [00:08:22] hmm.
Michael T. Mulligan [00:08:22] and so wading pool means an artificially created body of water intended for wading purposes, and I think in depths of less than 61cm. So, if the police carried around a blow up, wading pool with them, it would, criminalize possessing drugs anywhere within 15m of that. As long as the wading pool is free for the public to use. So, it wouldn’t be locked down. Pandora plunked down a pool, put some water in it. It then becomes a 15-metre zone of criminality, to possess drugs around it and everything.
Adam Stirling [00:08:51] hmm. Before we move on, can I ask you, because you, of course, serve as criminal defence counsel. Do you see any Crown actually approving charges against a report like that? Like, oh, it just happened to be 15 or within 15m of a wading pool somebody’s put there.
Michael T. Mulligan [00:09:08] Well, first of all, the police have to arrest somebody.
Adam Stirling [00:09:11] Yeah.
Michael T. Mulligan [00:09:11] Right.
Adam Stirling [00:09:12] Yeah.
Michael T. Mulligan [00:09:12] And send a report to Crown counsel. My expectation is that they likely would.
Adam Stirling [00:09:16] Really.
Michael T. Mulligan [00:09:17] Although the police exercise and may have exercised for a very long time.
Adam Stirling [00:09:22] mm hmm.
Michael T. Mulligan [00:09:22] Discretion in terms of what they’re enforcing. Right. It’s just like the police could sit there on Douglas Street and arrest everyone going or ticket everyone going 51km an hour.
Adam Stirling [00:09:32] yeah.
Michael T. Mulligan [00:09:33] And those tickets would all be valid. If you’re going one kilometer over, that’s it. But police are not required to enforce all or all laws at all times, in all circumstances, nor would you want them to race in that example.
Adam Stirling [00:09:44] Yeah.
Michael T. Mulligan [00:09:45] And so the police are not arresting people, standing next to an inflatable pool, even though somebody put one down outside of our place, that they would all be committing crimes, right?
Adam Stirling [00:09:57] Yes.
Michael T. Mulligan [00:09:58] But the first level of filter would Be Are the police going to act on that? And the likely the likely response is, no, they’re not going to act on it. So, I don’t think it’s an issue of crown charge approval.
Adam Stirling [00:10:08] Okay.
[00:10:08] If there was some reason, like let’s say the police show up to or something, something drew their attention they conclude, yes. It makes sense for us to exercise their judgement and arrest somebody who is there by a play implement within 15m. My expectation is that the Crown would approve it. because they to look at and say, look, is there a substantial likelihood of conviction here? Yes. Is it in the public interest to proceed? Probably they would say yes to that. And so, I don’t know that the impediment there is charge approval. The impediment is probably whether the police are going to use resources to arrest people for that. But they could and that remains in effect and is unchanged by the injunction that came in. And so that brings us to the injunction, and that requires a look at go what was that injunction about? And that injunction was about a piece of provincial legislation called the Public Consumption of Illegal Substances Act.
Adam Stirling [00:11:01] Mhm.
Michael T. Mulligan [00:11:02] That was a piece of legislation the provincial government brought in in response to the same pressure, public pressure that caused the federal government to remove the exemptions for, you know, 15m of those, three places. We just talked about skate parks, weeding pools and so on.
Adam Stirling [00:11:17] Yes.
Michael T. Mulligan [00:11:18] And that provincial legislation was not well named. It’s a misleading name. As we talked about before, that provincial legislation, the Restricting Public Consumption of Illegal Substances Act does not restrict the public consumption of illegal substances anywhere on the face of it. The legislation, when you first look at it, the title suggests that it does. And you go down, you look at it and say, you shall not use these various substances in a list of places which is longer than the list of places that the exemption was removed for.
Adam Stirling [00:11:52] mm hmm.
Michael T. Mulligan [00:11:52] That provincial legislation included things like sports fields, a beach, a public park with the meaning of the parts act, not just the play area. Right.
Adam Stirling [00:12:01] Yeah.
Michael T. Mulligan [00:12:01] Outdoor establishment, various other things, workplaces, prescribed places, entrances to workplaces within six metres of, like, the no smoking. Right.
Adam Stirling [00:12:11] Yeah.
Michael T. Mulligan [00:12:11] And so that provincial legislation listed more places, but it didn’t even though it said you can’t use drugs in any of those places. It didn’t, in fact, make any kind of an offence and expressly said that the Offence Act does not apply, and it didn’t create its own offence, which is what sometimes happens when we don’t decide to use the Offence Act. So sometimes we’ll say, look, there’s going to be a specific penalty for doing something. We didn’t do that. The only offence that occurs is if the police first show up and ask you to please stop using fentanyl. You are six metres from the entrance of a, you know, bus stop. Please stop that. And then if the person doesn’t move six metres away or doesn’t stop using the fentanyl, then the police can give them a ticket or theoretically take the fentanyl away as long as the fentanyl wasn’t issued pursuant to a prescription. So, the act should have been entitled the Restricting Public Consumption of Illegal Substances Act if asked first by the police. Right.
Adam Stirling [00:13:12] yeah.
Michael T. Mulligan [00:13:13] And so the act was nothing. It existed for political reasons. The provincial government implemented it because the public was, I think, rightly outraged that people would be sitting at the bus stop smoking fentanyl. Right. Who wants to sit next to the person wafting fentanyl into the air as they’re waiting to get on the bus.
Adam Stirling [00:13:32] Yeah.
Michael T. Mulligan [00:13:33] And so they were getting on a daily basis pummeled with that politically. And so, they passed that act. That is the act, which has been challenged in court. And it was challenged by the Harm Reduction Nurses Association. And their argument was, look, if the police move these people along from smoking fentanyl at the bus stop, or next to the entrance to your workplace or whatever it might be.
Adam Stirling [00:13:58] mm hmm.
Michael T. Mulligan [00:13:58] those people might, there might be some, consequence for that. Maybe they would go and buy more drugs and they could that could be a problem. Or perhaps they would use the drugs in a place where they couldn’t be seen if he became unconscious after using them. Right.
Adam Stirling [00:14:12] Yeah.
Michael T. Mulligan [00:14:13] And so that’s what fit into the test that Chief Justice Hinkson had to apply to that provincial legislation. And I should also pause to say the provincial legislation, unlike the change to the federal exemption, has not even come into effect. No circumstances, no change. They passed it, but they didn’t bring it into effect yet. and so, the police didn’t even have the power to come up to somebody who was smoking fentanyl at the bus stop and say, stop that. If you don’t stop it, then I’ll give you a ticket.
Adam Stirling [00:14:44] Yeah.
Michael T. Mulligan [00:14:45] That never even came into effect. But the argument from the Harm Reduction Nurses Association was that if it did come into effect. It could have a negative impact on people who were drug addicts, who were using drugs in that way. And so, the judge had to apply a three-part test to see whether there should be an interim injunction. And an interim injunction is like an order to stop something from happening until there can be a proper trial to determine whether there should be a permanent, you know, order to stop doing it or not. Right. It’s like, what should we do while we’re waiting for the trial. That’s what the judge had to decide.
Adam Stirling [00:15:20] Yeah.
Michael T. Mulligan [00:15:21] And the test has three parts. First of all, um, does the case have some merit, right? Or is this just a hopeless case which has no hope of success at all? Is this just a waste of time? The Nurses Association argument win over that threshold. It’s a pretty low barrier, right?
Adam Stirling [00:15:39] Okay.
Michael T. Mulligan [00:15:39] this isn’t just completely fanciful. Maybe you will succeed. Maybe you don’t. But it gets over the ankle high hurdle of not being just a waste of time.
Adam Stirling [00:15:47] Yes.
Michael T. Mulligan [00:15:47] So then the judge just moves on to the second test, which is irreparable harm. And that test is perhaps not well made from a public consumption perspective.
Adam Stirling [00:15:56] Yeah.
Michael T. Mulligan [00:15:57] Because when I say to you, something’s going to have irreparable harm, that’s I think the ordinary meaning of that for people would be like, really serious harm or like a really big deal. Right.
Adam Stirling [00:16:06] Yeah.
Michael T. Mulligan [00:16:06] That’s kind of what irreparable harm would typically mean. But that’s not what the test is as a matter of law, irreparable harm does not mean large harm or a big deal. It means harm you couldn’t just make up for it later by paying money.
Adam Stirling [00:16:20] I see.
Michael T. Mulligan [00:16:22] And so it just means like, let’s say somebody has an overdose after they’re told get away from the bus stop and stop smoking or fentanyl, if the person stumbles behind a bush and then passes out and dies. Well, you can’t fix that by paying money. They’re dead. Right?
Adam Stirling [00:16:37] Yeah.
Michael T. Mulligan [00:16:38] The other way to look at it, that’s what makes it irreparable. Not that it’s serious, although, of course, somebody dying is serious.
Adam Stirling [00:16:44] Yes.
Michael T. Mulligan [00:16:44] It just means I can’t fix it later by paying you for it. If you could fix it later by just paying money. So, there’s no need for an injunction. Just, just have the trial. And if you win, I’ll pay you the money. As long as the person is capable of paying, you don’t need to stop it in advance. Just carry on. And so, it made the argument of the nurses got over that threshold, which doesn’t mean the judge thought it was very serious harm would come from that legislation not coming into effect. It just meant if there was some harm that the nurses were arguing, there could be you couldn’t fix it with money.
Adam Stirling [00:17:18] Yeah.
Michael T. Mulligan [00:17:18] That’s all that meant. And then the third part of the test is a balancing of convenience. Basically, the judge is charged with saying, does it make more sense to stop this thing from happening until we have a trial, right? And then stop it as it should, or carry on with it until we have a trial? And the problem, the province said, is that the legislation was so feckless and intentionally feckless, the idea that you could, you know, it’s like saying you can’t smoke. Uh, you know, by the entrance of a building, but nothing can be done about it unless the police come up and say, please stop smoking. And you say, no, officer, I’m going to continue. Right. Well, what kind of a prohibition was that? It’s no prohibition at all.
Adam Stirling [00:18:01] Yeah.
Michael T. Mulligan [00:18:02] And so when a judge is doing this balancing of convenience and what they’re considering is legislation from a government, a judge has to assume that what the government is doing is somehow useful. Right. There’s a legal presumption, and we presume that because, well, people are elected and presumably they’re making decisions that are not a force of evil. Presumably, they think they’re doing something useful. And so, the judge assumed that, okay, I’m required to assume this has some utility, but what other argument is there to make? Well, what is the utility of legislation that allows you can’t do anything, you know. So please show up and say stop smoking at the bus stop. And then the person says, no, I’m going to continue smoking at the bus stop.
Adam Stirling [00:18:44] Yeah.
Michael T. Mulligan [00:18:44] Then you could give them a ticket that is meaningless. And so, when you weigh up on one side, intentionally meaningless provincial legislation. And don’t kid yourself, it was designed to be meaningless because the province wants the decriminalization of drugs. They asked for it. It’s their policy.
Adam Stirling [00:19:04] Yeah.
Michael T. Mulligan [00:19:05] This was intentionally meaningless legislation. And so, the judge was left with, on one hand, intentionally meaningless legislation where you just can’t point to something and saying, if we don’t have the power for police to show up and to stop with fentanyl at the bus stop, or I’ll give you a ticket. What is that? It’s nothing. And so, given that there’s nothing on that side of it, when you’re doing a balancing of convenience and on one hand you have nothing. And on the other hand, you have somebody saying, well, I can envision a scenario where somebody might stumble behind a bush and die. The judge is left with, well, on one hand I have nothing, although I have to assume it’s at least something.
Adam Stirling [00:19:44] mm hmm.
Michael T. Mulligan [00:19:44] But nothing more than that. And on the other hand, I have that possibility. Maybe. Maybe one person will stumble behind the bush and die. You can’t make up for that by paying the money later.
Adam Stirling [00:19:52] Yeah.
Michael T. Mulligan [00:19:53] And there’s some argument you’re making here. That’s why they got the temporary injunction. That’s the background of it, and it doesn’t mean that the nurses will succeed at the end of the day. And frankly, whether they succeed or not in challenging that useless piece of provincial legislation will make no difference because the legislation is itself useless. and bear in mind there are still some restrictions, and some of this, I think, kind of get lost in the messaging about that piece and the additional restrictions that keep many of those ones the federal government removed from the exemption on September 18th.
Adam Stirling [00:20:30] Yeah.
Michael T. Mulligan [00:20:30] And so now it is a crime again, to possess drugs within 15m of a play structure in a playground or 15m of a spray pool or wading pool or 15m of a skate park. Those are the things that were exempted. What we don’t have is the future possible to be brought into force, power for the police to show up at the beach or other places and say, stop that.
Adam Stirling [00:20:55] Yeah.
Michael T. Mulligan [00:20:55] That’s what’s been suspended. And so that’s the big picture of it, right. And I think it’s important that people know this is a provincial policy. That’s why the province made this piece of legislation so obviously useless. Maybe put it in a talking point. It was useless. That’s why it frankly didn’t survive the test for the interim injunction. But despite that, there are some additional controls that came in September 18th. They’re just more limited. But then the really big picture is when you look at the dashboard that the province was required to create in order to make all of this happen, to get their policy implemented, at least at this point, after 11 months, it just doesn’t seem like the policy is doing what we hoped it would do.
Adam Stirling [00:21:40] No.
Michael T. Mulligan [00:21:40] Which is really the sad part.
Adam Stirling [00:21:42] Yeah.
Michael T. Mulligan [00:21:43] And the likely reason for that, and it’s also said in the letter in the provinces is request for this exemption is that we just haven’t created the required things to make the decriminalization effective. Decriminalizing it on its own is not going to solve anything. It’s clear from the statute it won’t.
Adam Stirling [00:22:02] I, am I, I missed our break, so we’re almost out of time. I’m sorry. Michael, I’ve got one minute. That’s okay. Yep.
Michael T. Mulligan [00:22:10] So that’s the failure of it. And that’s really the most unfortunate thing about all of this.
Adam Stirling [00:22:15] Okay.
Michael T. Mulligan [00:22:16] It’s a policy where if they did what they said they were going to do, maybe it would have had some positive effect. But they didn’t. And you can now just look at the stats. And here’s where we are. We seem to have the worst of both possible worlds. We haven’t saved people and we now, we have people using fentanyl at the bus stop.
Adam Stirling [00:22:33] yeah.
Michael T. Mulligan [00:22:33] So that’s how it is. We got to where we are.
Adam Stirling [00:22:35] Michael Mulligan, legally speaking, every Thursday here on CFAX 1070. Michael, thank you as always. Thank you so much.
Michael T. Mulligan [00:22:41] Have a great day.
Adam Stirling [00:22:42] All right.
Automatically Transcribed on January 12, 2024 – MULLIGAN DEFENCE LAWYERS