Keeping drug users away from playgrounds would cause “irreparable harm,” British Columbia’s Supreme Court has ruled.

The B.C. Supreme Court issued an injunction striking down an amendment to the NDP government’s pilot project which tried to keep drug users away from areas where children congregate.

The province was nine months into a pilot project to decriminalize personal possession of illegal drugs, under the weight of 2.5 grams. 

By federal exemption, fentanyl, heroin, cocaine, meth, MDMA all became legal to possess and use anywhere throughout the province.  

The “playground” amendment was enacted Sept. 18 to walk back leniency on where people could use their drugs, restricting users to be at least 15 metres from a playground, skate park or “outdoor spray pool or wading pool.”

Police were instructed to direct users to leave those areas if they were found using drugs there but were discouraged from making any arrests, based on the Restricting Public Consumption of Illegal Substances Act. 

The original decriminalization order already included the exception of schools and “child care facility premises” as restricted areas. 

However, following an injunction issued in December, B.C.’s Supreme Court ruled that preventing users from areas included under the “playground” amendment was a violation of the Charter of Rights and Freedoms.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled that restricting those areas would impose “irreparable harm” to drug users if they were directed away from them.

While Hinkson acknowledged that this would mean public parks would face the reality of bio-hazardous drug paraphernalia being littered around and that other members of the park being subjected to “social harms” like “unpredictable behaviour,” but said these concerns would have to take a back seat given the province’s ongoing overdose crisis. 

“I … accept that the attendant public safety risks are particularly concerning given that many of the restricted areas and places in the Act are frequented by seniors, people with disabilities, and families with young children,” wrote Hinkson. 

Hinkson ruled that B.C.’s playground amendment was a violation of “the right to life, liberty and security of the person” guaranteed by section 7 of the Charter of Rights and Freedoms.“I am satisfied that the suspension of the Act can be properly characterized as a substantial public benefit,” he wrote.

The injunction is temporary and remains in place until Mar. 31.

The plaintiff in the case was the Harm Reduction Nurses Association, who argued that any restriction on drug use in public areas would likely result in “lone drug use” which would increase the number of fatal overdoses.

“It is apparent that public consumption and consuming drugs in the company of others is oftentimes the safest, healthiest, and/or only available option for an individual,” wrote Hinkson.

Lawyers representing the B.C. government argued that the Harm Reduction Nurses Association was using “anecdotal evidence, unsubstantiated conclusory statements” and “layers of unattributed hearsay.”

While Hinkson did accept the counter argument as valid, he instead based his decision on data from a 2022 Death Review Panel by the B.C. Coroner Service, a long time advocate of B.C.’s safe supply initiative. 

Hinkson agreed with the Coroner Sevice’s assertion that “criminalizing drug use behaviour ensures an ongoing public perception that it is deviant and shameful, creating a barrier to people seeking the support they need as well as requiring people to hide their needs for fear of criminal sanctions.”

“Given the evidence before me, I find that there is a high degree of probability that at least some of the harm set out by the plaintiff will in fact occur,” wrote Hinkson in his conclusion.

Initially, the “playground” amendment was endorsed by some of B.C.’s most prominent advocates of harm reduction like Victoria Mayor Marianne Alto. 

“As the longer-term effects of decriminalization are assessed … it’s important to consider and take steps that specifically protect children,” said Alto in a statement at the time.

B.C. Premier David Eby was also in agreement, telling the provincial Legislative Assembly in May, “Nobody wants this activity affecting our kids, and we will do something.” 

Ebay was responding to a number of municipalities in the B.C.’s Lower Mainland who wanted to see their parks and playgrounds remain protected under the Controlled Drugs and Substances Act. 

However the amendment was encoded under a B.C. government bill passed in November, which advised police who thought someone was “consuming an illegal substance” in a playground or other prohibited area to “direct the person” to either “cease consuming” the drug, or to “leave the area or place.”

If the user ignored the direction of the police, only then could an officer make an arrest or confiscate their drugs, however they are still not permitted to press criminal charges. 

B.C. Conservative Leader John Rustad pledged to end open air drug use if elected, saying, “I will use the notwithstanding clause to end open air drug dens and bring back safe streets for families.”

The notwithstanding clause allows governments to protect legislation against certain constitutional challenges.