Dive into the heart of British Columbia's drug policy transformation with the sharp legal insight of Michael Mulligan from Mulligan Defense Lawyers. Unravel the threads of the decriminalization initiative and the controversial exemption sparking debate from the streets to the courtroom. Amidst the policy shifts, we scrutinize the troubling uptick in public drug consumption and the persistent scourge of drug-related fatalities. The episode takes an incisive look at BC's Restricting Public Consumption of Illegal Substances Act and the challenging legal terrain it navigates, all through the lens of Mulligan's profound expertise.
Witness the tension between good intentions and the stark realities faced by those in the grip of the fentanyl crisis. Weigh the efficacy of policies meant to protect yet seemingly falter as public spaces become hotspots for substance use. This week's episode merges legal insight with societal impact, bridging the gap between what is legislated and what is lived by communities. Join Michael and me every Thursday for a forensic analysis of the laws shaping, and sometimes shaking, the bedrock of our society on CFAX 1070.
Follow this link for links to the cases discussed and a show transcript.
Dive into the heart of British Columbia's drug policy transformation with the sharp legal insight of Michael Mulligan from Mulligan Defense Lawyers. Unravel the threads of the decriminalization initiative and the controversial exemption sparking debate from the streets to the courtroom. Amidst the policy shifts, we scrutinize the troubling uptick in public drug consumption and the persistent scourge of drug-related fatalities. The episode takes an incisive look at BC's Restricting Public Consumption of Illegal Substances Act and the challenging legal terrain it navigates, all through the lens of Mulligan's profound expertise.
Witness the tension between good intentions and the stark realities faced by those in the grip of the fentanyl crisis. Weigh the efficacy of policies meant to protect yet seemingly falter as public spaces become hotspots for substance use. This week's episode merges legal insight with societal impact, bridging the gap between what is legislated and what is lived by communities. Join Michael and me every Thursday for a forensic analysis of the laws shaping, and sometimes shaking, the bedrock of our society on CFAX 1070.
Follow this link for links to the cases discussed and a show transcript.
time for our regularly scheduled segment with Barrister and Solicitor for Mulligan Defense Lawyers, legally speaking on CFAQ's 1070 with Michael Mulligan Moray. Michael, how are we?
Michael Mulligan:doing. Hey, good morning, I'm doing great. I was good to be here.
Adam Stirling:Despite it being at a time of the year, it's not usually known for a lot of news and a lot of developments. We have some very interesting stories on the docket this week, don't we?
Michael Mulligan:Indeed we do. I thought it would be useful to start by giving some background to what's been going on with the drug decriminalization in BC the NCFS, how it came about, and then that injunction or inter-majunction the other week that generated lots of interest, delaying the implementation of the BC 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 is 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. This is 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 and various other drugs, and there's a section of the federal legislation that criminalizes possession and trafficking and so on 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 scientist doing a test or something. Right so there'd be authority to permit that.
Michael Mulligan:This exceptional request came from British Columbia to the federal government asking that 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 2.5 grams in British Columbia in most locations. That exemption came into effect January 31st 2023. And so when we're looking at how things have gone and has that worked? Right, because the stated goal of that was to reduce the number of overdose deaths in British Columbia. 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.
Michael Mulligan:Another interesting element of that is that when British Columbia, the British Columbia government, asked the federal government for this exemption, they settled 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. 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 this experiment, because it's temporary, right, it's not a permanent suspension of the law and so the federal government set out various things law enforcement readiness, communication with the public, indigenous engagement and things like alternative measures, treatment and, interestingly, a requirement that the provincial government provides statistics and create a dashboard it is modeled on the COVID dashboard so that you could monitor how is this working? Right, because the idea here is to have evidence-based policy. Lots of people have theories about things, right, 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 and 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 the answer to what impact or what's been going on, what are the trends? And the broad trend when you go and look at that and encourage people to look at it and break it down and look at it 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, probably a function of people losing their job and dislocation and all of that, 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 Look at it. You're looking at by region, sex, whoever.
Michael Mulligan: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. One of the things to be cautious about looking at the stats, you've got to look at the notes for them. They are publishing a 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. Some people are now getting prescribed drugs right which would otherwise be illegal. That's the safe supply part of the equation. Those are not included in these stats, the stats when you're looking at that, if you go and look at the dashboard, are people that are dying from unregulated drugs, so that's important to bear in mind. They also you could break it down by total deaths or you could look at it in terms of deaths per 100,000 to take into account increased population. But anyway you cut it, the stats do not seem to bear out a decrease in the number of deaths following the decriminalization, at least so far, and we're into this now about a year. Now that's the background of it. That's how we got to where we are Now.
Michael Mulligan: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, when there's no longer criminal to do something, people aren't hiding their drug use, so they're 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.
Michael Mulligan:The federal government removed some areas from their exemption. Remember, drugs are federal. They decide whether they're criminal or not and so they changed on September 18th that exemption and they provided that it was no longer an exemption if you were within 15 meters of any play structure in a playground, 15 meters of a spray pool or wading pool or 15 meters of a skate park. Those were the. On September 15th the exemption stopped applying to those places. That is unchanged.
Michael Mulligan: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 offense, in fact, to possess drugs in those places. Amusingly, like I must say, when I read the actual, regular, actual requirements there, that exemption for 15 meters of any waiting pool defines a waiting pool based on the British Columbia pool public health act, pool regulation. Indeed, we have such a thing, and so waiting pool means an artificially created body of water intended for waiting purposes and having a depth of less than 61 centimeters. So if the police carried around a blow up waiting pool with them, it would criminalize possessing drugs anywhere within 15 meters of that, as long as the waiting pool was free for the public to use. So if one day walked down Pandora and plunked down a pool, put some water in it and then becomes a 15 meters zone of criminality to possess drugs around it.
Adam Stirling:And that remains so. Now, before we move on, can I ask you, because you of course serve as criminal defense counsel do you see any crown actually approving charges against a report like that? Like, oh, it just happened to be 15, or within 15 meters of a waiting pool, somebody put there.
Michael Mulligan:Well, first of all, the police have to arrest somebody yeah, right, yeah, and then send a report to crown counsel. My expectation is that they likely would, really, although the police exercise and they have exercised for a very long time discretion in terms of what they're enforcing. Right is just like the police could sit there on Douglas Street and arrest everyone going, or ticket everyone going 51 kilometers an hour right, 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 law, all laws at all time and all circumstances, nor would we want them to right, just like in that example. Yeah, and so the police are not arresting people standing next to a inflatable pool, even if somebody put one down outside of our place. That they will be committing crimes, right, yes, but the first level of filter would be are the police going to act on that? And the likely out, 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. Okay, if there was some reason, like, let's say, the police show up and they had, there was some, something drew their attention, they could. Yes, it makes sense for us to exercise or judgment and arrest somebody because they're by a play implement within 15 meters. My expectations of the crown would approve it. If they're going to look at it as they 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.
Michael Mulligan:Well, what was that injunction about? And that injunction was about a piece of provincial legislation called the public consumption of illegal substances act. 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, 15 meters of those three places we just talked about skate parks, waiting pools, so on. Yes, and that provincial legislation was not well named. It's a misleading name, as we talked about before.
Michael Mulligan: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 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. That provincial legislation included things like sports fields, a beach, a public park with a meaning of the parks act, not just the play area right Outdoor establishment, various other things, workplaces, prescribed places, entrances to workplaces with a six meter center, like the nose smoking right, 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 that any kind of an offense. It expressly said that the offense act does not apply and it didn't create its own offense, which is what sometimes happens when they don't decide to use the offense act. They sometimes will say look, there's going to be a specific penalty for doing something they didn't do. That the only offense that occurs is if the police first show up and ask you to please stop using fentanyl. You're within six meters of the entrance of a bus stop, please stop that. And then if the person doesn't move six meters 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.
Michael Mulligan:So the act should have been entitled the restricting public consumption of the legal substances act, if asked first by the police, right? So the act was a 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 their bus stop smoking fentanyl. Right, who wants to sit next to the person washing fentanyl into the air as they're waiting to get on their bus? And so they were getting on a daily basis pummeled with that politically, and so they passed that act.
Michael Mulligan: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, those people might there might be some consequence for them. 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 they became unconscious after using them right. And so that's what fit into the test that Chief Justice Hinksson 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 circumstance, no case. 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's smoking fentanyl at the bus stop and say stop that. If you don't stop it then I'll give you a ticket. That never even came into effect.
Michael Mulligan:But the argument from the harm reduction nurses association was, 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 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 order to stop doing it or not. It's like what should we do while we're waiting for the trial? That's what the judge had to decide, and the test has three parts. First of all, 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 went over that threshold. It's a pretty low barrier, right? This isn't just completely fanciful. Maybe you succeed, maybe you don't. It gets over the ankle high hurdle of not being just a waste of time.
Michael Mulligan:So then just to move on to the second test, which is irreparable harms. And that test is perhaps not well named from a public consumption perspective, because when I say to you something's going to have irreparable harms, I think the ordinary meaning of that for people would be like really serious harm or like a really big deal. Right, that's kind of what irreparable harm would typically mean. So 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 later by paying money. I see, right. And so it just means that like, let's say, somebody goes and has an overdose after they're told get away from the bus, stop and stop smoking your fentanyl there, 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, yeah. And look at it. That's what makes it irreparable. Not that it's serious, although of course somebody dying is serious it just means I can't fix it later by paying you for it. If you could fix it later by just paying money, then there's no need for an injunction. Just have the trial and if you win I'll pay you the money right. 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 gone 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. That's all that meant.
Michael Mulligan:And then the third part of the test is a balancing of convenience. Basically, the judge's charge was saying does it make more sense to stop this thing from happening until we have a trial? Right, and then stop it if you should, or carry on with it until we have a trial. And the problem the province had 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, 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 this action won't happen anyway. Then the situation in the wennetting of this legislation would stall. No officer, I'm going to continue, right? Well, what kind of a prohibition is that? It's no prohibition at all.
Michael Mulligan: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, they're 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 a legislation that allows the police can't, you can't do anything unless the police 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. And then you can give them a ticket. That is meaningless.
Michael Mulligan: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, right, it's their policy. 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 say, stop with fentanyl at the bus, stop, or I'll give you a ticket, what is that? It's nothing.
Michael Mulligan: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, nothing more than that and on the other hand, I have that possibility, maybe one person will stumble behind a bush and die. You can't make up for that by paying the money later and there's some argument for your 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 got lost in the messaging about that case and the additional restrictions that came in those ones the federal government removed from the exemption on September 18. And so now it is a crime again to possess drugs within 15 meters of a play structure in a playground or 15 meters of a spray pool or waiting pool or 15 meters of a skate park. Those are the things that were exempted.
Michael Mulligan:What we don't have is the future possible if they brought it into force power for the police to show up at the beach or other places and say stop, that, that's what's been suspended, and so that's the big picture of it, 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. They put it in as a talking point. It was useless. That's why it frankly didn't survive the test for the interim injunction.
Michael Mulligan:But despite that, there are some additional controls that came in September 18. 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, which is really the sad part. And the likely reason for that and it's also said it on the letter and the province's 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, and it's clear from the stats.
Adam Stirling:It won't, I am. I missed our breaks. We're almost out of time. I'm sorry, Michael. I've got one minute, that's okay.
Michael Mulligan:Yep, and so that's the failure of it, and that's really the most unfortunate thing about all of this. 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 still. Now we have people using fentanyl at the bus stop, and so that's how it is. We got to where we are.
Adam Stirling:Michael Mulligan, legally speaking every Thursday here on C-Facts 1070. Michael, thank you, as always.
Michael Mulligan:Thank you so much.
Adam Stirling:Have a great day, all right.