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Will BC towns’ bylaws undermine drug decriminalization pilot?

FILE PHOTO - RCMP display illicit drugs containing fentanyl seized during a bust in Kamloops.

B.C.’s three-year pilot drug decriminalization program is aimed at reducing the barriers and stigma that prevent people from accessing life-saving supports and services.

But since the possession of small amounts of drugs was decriminalized on Jan. 31, some municipalities have looked at bans on public drug use that advocates warn undermine the provincial effort.

In Campbell River, the city decided to implement its own bylaws three days before decriminalization took effect, banning and ticketing public use of controlled substances.

Penticton and Kamloops have approved or plan to ban public use, while Kelowna and Sicamous have banned use in city parks. In Prince George, RCMP are relying on an existing “safe streets” bylaw to say that decriminalization is not in effect in public areas and are seizing drugs.

In its submission to the federal health minister seeking approval for the decriminalization experiment, the B.C. government said “substance use is a public health matter, not a criminal justice issue.”

Dr. Charmaine Enns, medical health officer for North Vancouver Island, agrees. “Individuals who use substances, they’re not criminals,” she said. Removing the criminal and enforcement element will help reframe our society’s understanding of substance use as a health issue, not a criminal issue, says Enns. “So that people have as much opportunity as possible to access care and services — to be connected to the care that they deserve.”

The Campbell River bylaws were intended to “maintain the status quo of penalization,” says Enns. The bylaws are simply replacing criminal sanctions with administrative sanctions, she says.

Pivot Legal Society challenged the initial Campbell River bylaw, saying it went beyond the council’s power. It filed a petition in B.C. Supreme Court on Feb. 10 seeking to quash the bylaws and an interim injunction stopping Campbell River from enforcing them. Campbell River dropped the bylaws on Feb. 23, but introduced a new version last month.

Continuing the harms of criminalization

Caitlin Shane is the staff lawyer for drug policy at Pivot Legal Society. Shane has been advocating for many years for decriminalization, and wrote “Act Now!: Decriminalizing Drug Laws in Vancouver,” Pivot’s 2020 report calling for decriminalization.

“As skyrocketing rates of overdose deaths across Canada demonstrate, prohibition-based drug policy is a veritable death sentence for people who use drugs,” wrote Shane.

Municipal bylaws aimed at maintaining the status quo will mean continued police involvement, the report found, which drives drug use underground and increases the dangers.

Enns said the evidence shows the risk of enforcement continues the stigmatization and fear of police action. “The reason we wanted an exemption for the decriminalization of personal possession is so that people were no longer afraid,” she said. “And when people aren’t afraid, they tend to use less, they tend to be safer.”

“If you continue to keep people afraid, they try to hide. They will be alone. They will use quickly. They will discard and leave things behind. These are all issues of concern for the community, but the bylaw will make those things more likely,” says Enns.

“We’re trying to do quite the opposite, to keep people safer and to help connect them to care.”

Toxic drug deaths rates are already higher in smaller communities, according to a November report by the BC Centre for Disease Control and the University of British Columbia.

“The odds of fatal overdose were about 30 per cent higher in rural areas than in large urban centres, with some regions reporting odds 50 per cent higher than others,” the study found.

Pivot’s Shane sees these types of bylaws as a backlash against change. “And unfortunately, that backlash gets launched against people who are directly impacted by these laws in the first place — people who use drugs, unhoused folks, Indigenous people, and particularly people who are in positions of all of those things overlapping.”

Shane said she had advised the province’s decriminalization planning table of the risk. “From day one, I was constantly expressing concern to the province that unless we were extremely vigilant, we would see municipalities moving immediately upon decriminalization taking effect to pass bylaws just like this one, to undermine the B.C. policy.”

In Prince George, the RCMP are relying on an existing bylaw to say that decriminalization is not in effect in the Moccasin Flats area where a tent camp has sheltered people.

Juls Budau, manager for the Prince George safe consumption site Two Doors Down, tweeted that RCMP were saying it’s public space and “hugely discriminatory against the unhoused people and Indigenous people who live in the flats,” she wrote.

Where is this coming from?

Not all municipalities are taking these steps. In fact, the Union of BC Municipalities supports decriminalization and participated in the provincial decriminalization planning table.

UBCM delegates endorsed decriminalization as a way to “holistically address the opioid crisis, mental health issues and their connections to homelessness and overdose deaths in local governments across Canada.”

Local governments often say the bylaws are based on the need to protect public safety. In a Campbell River council meeting, Coun. Doug Chapman supported the bylaws by referencing the Campbell River RCMP.

“With discussions with the RCMP, they have indicated these two bylaws would be beneficial for them to keep the peace and good law order,” said Chapman. “Unfortunately, we have to have these bylaws for the small group that would persist in consuming illegal drugs on public property. And this would give the RCMP the tools they need to help us with that.”

Insp. Jeff Preston of the Campbell River RCMP was at a Jan. 24 council meeting, advising on the language of the bylaws.

The Tyee asked the City of Campbell River which member of the local RCMP requested this bylaw. Staff director of community safety Peter Wipper responded via email saying “the city is not in a position to comment on this matter at this time.”

However, BC RCMP communications services said via email that “neither the RCMP nor Insp. Preston requested the bylaw.”

The RCMP were represented at the province’s decriminalization planning table.

And the Canadian Association of Chiefs of Police have recognized decriminalization as an effective way to reduce both the public health and public safety concerns associated with substance use. “Merely arresting individuals for simple possession of illicit drugs has proven to be ineffective,” says a report by the association. “Research from other countries who have boldly chosen to take a health rather than an enforcement-based approach to problematic drug use have demonstrated positive results.”

Preston spoke on these issues in the fall of 2021, in a public community conversation hosted by the Campbell River Chamber of Commerce. “In some cases, the issues that you are seeing, especially in the downtown, really need to be addressed by mental health and addictions personnel, and not necessarily the RCMP,” Preston said.

Island Health’s Enns says it’s important to fully appreciate a bylaw banning public use “disproportionately impacts the people who are already the most marginalized and vulnerable, in that they have nowhere else to go.”

Enns says conversations around public safety should include “the people who are unhoused, marginalized, disenfranchised, living on the street, in the bush or in a tent, because their safety is significantly challenged. They’re unsafe.”

Pivot’s Shane has similar concerns about the public safety argument.

“Keeping it safe for who?” she asks. “There’s this sense that drug users aren’t people, that unhoused people aren’t people, and that the real community that we need to keep safe are the property-owning or relative elites of society.”

Such bylaws continue “to punish drug users and to deny them the benefits of decriminalization,” says Shane. “Fears about needles can be assuaged with adequate harm reduction services such as [overdose prevention sites] and needle boxes.”

“Drug prohibition is itself an incredibly racist policy,” Shane says, meant to perpetuate inequality and to control racialized communities.

Race and public use bans

Coun. Tanille Johnston, who is Lig?ildax? from the We Wai Kai Nation, is the first Indigenous Campbell River council member. She’s also the only councillor who voted against the bylaws, voicing concerns about proceeding without consulting Island Health’s medical officials. Council initially voted not to acknowledge receiving a letter from Island Health on the bylaws.”

“We haven’t consulted our chief medical officer, we haven’t consulted Island Health on how to do this,” Johnston said.

Enns says dealing with issues that concern many citizens, like visible homelessness, distress and concerns about public safety, requires getting to their roots.

“And many of those roots are based on the fact that people have nowhere to live. They are unhoused, they don’t have access to services, they’re disconnected from significant relationships in their lives. So more disconnection isn’t going to help.”

“We don’t know people’s stories,” she says. “But what we can do is recognize that all of us will be impacted, if we haven’t been already — all of our communities are impacted. And so this is something that we just can’t ignore.”

This week Premier David Eby said he will work with municipalities on their “shared goal” to create safer and healthier communities. Eby had maintained previously that any public safety issues could be dealt with using existing laws.

Shane says she finds Eby’s comments “really concerning, albeit vague.”

“Unless the rules he’s talking about require local governments to stop preventing health authorities and people who use drugs from setting up overdose prevention sites, then I worry he’s just going to work out something that punishes drug users further all the while cowing to local governments’ unevidenced stigma and fear.”

Shane says there is no evidence that public drug consumption has increased with decriminalization anywhere, adding the province should issue a moratorium on new bylaws that prohibit public drug consumption because they undermine the decriminalization policy.

“Allowing local governments to ban public drug consumption in the wake of decrim flies in the face of health professionals’ advice and signals reckless disregard for the lives of people who use drugs.”

Meenakshi Mannoe, criminalization and policing campaigner for Pivot Legal Society, said anti-harm reduction politics have hampered the rollout of decriminalization. “This is coupled with police targeting people who experience homelessness and rely on the unstable and unpredictable drug supply,” Mannoe said. “These lobbying efforts are designed to harm people who use drugs — whether they live on the street in the Downtown Eastside, in encampments throughout the province, or are otherwise deemed ‘undesirable.’”

The fate of the bylaws may end up being decided in court.

But Enns hopes people feel empowered to know what their roles and rights are within their communities, to inform themselves and become involved in community decision-making.

“We need to do our due diligence in the communities we live in as citizens and as members of those communities to help inform and shape decisions,” says Enns.

“And, if we’re going to hope for things to be better and different, we have to do things better and differently.”

— This story was originally published by The Tyee.

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