Update

Since Pivot filed its petition against the City of Campbell River on February 10, 2023, the City rescinded its adoption of both impugned bylaws. This means that people in Campbell River no longer face a $200 fine for public drug consumption. More importantly, it means that people who use drugs can actually experience the benefits of BC’s decriminalization policy, which was severely undermined by the bylaws. We are continuing to monitor the situation in Campbell River and in cities across BC who may contemplate similar bylaws. We are also pushing the Province to take a more proactive and systemic approach to preventing anti-drug user bylaws in the first place.

Territorial Acknowledgement

Campbell River occupies the unceded and overlapping territories of the Ligwiłda'xw people (We Wai Kai, Wei Wai Kum and Kwiakah Nations) and Xwémalhkwu (Homalco Nation).

Background: the toxic drug supply crisis

Since 2016, BC has been in a public health emergency under the Public Health Act due to a significant increase in drug-related overdoses and deaths. In 2022 alone, toxic drug overdoses accounted for approximately six deaths per day in BC. In response to the emergency, the Province of BC developed a decriminalization policy that removes criminal sanctions for adults who possess certain illicit substances up to a total of 2.5 grams for their own use. The policy took effect on January 31, 2023, via an exemption from Health Canada under s. 56(1) of the Controlled Drugs and Substances Act.

According to the Province, the purpose of the decriminalization policy is to “reduce the barriers and stigma that prevent people from accessing life-saving supports and services.”

Campbell River's Bylaws

On January 26, 2023 the City of Cambell River adopted 2 bylaws that directly undercut BC’s decriminalization policy (which came into effect mere days later):

• Bylaw No. 3884 (the Public Nuisance Amendment Bylaw), which prohibits consumption of a controlled substance in public places; and
• Bylaw No. 3885 (the Ticketing for Bylaw Offences Amendment Bylaw), which allows for a $200 penalty for violations of Bylaw 3884.

In effect, the bylaws replace criminal sanctions with administrative penalties: drug users in Campbell River now face a $200 fine for public drug consumption, regardless of the amount they possess or whether they have access to an indoor location. Undoubtedly, unhoused drug users and those who rely on public space will be targeted. Not only will the fine be impossible for unhoused people to pay, but fear of being ticketed may drive drug use underground, potentially increasing fatal overdoses. Criminalizing public drug use will not stop people from using drugs—it will just make it more dangerous. In this way, the bylaws mimic the harms of criminalization and frustrate the aims of decriminalization.

In passing the bylaws, City Council emphasized that prohibiting drug use in public places was the preferred approach of the RCMP, and that if “information comes in later that contradicts this [the request of law enforcement] we can remove it.” Campbell River RCMP’s preference for the continued penalization of people who use drugs appears to be at odds with the professed stance of the provincial RCMP, which heavily influenced BC's decriminalization policy (and which continues to sit on the Province’s Decriminalization Core Planning Table).

It is important to recognize that enforcement activities can drive people to use drugs alone and can elevate risk of death.

- Dr. Charmaine Enns

There is no evidence that BC’s decriminalization policy (or any decriminalization policy) will result in an increase in public drug consumption. This was noted by the North Island Medical Health Officer (MHO) in a letter that the City refused to accept. In that letter, the MHO asked City Council to reconsider the bylaws, which lack an evidentiary basis and threaten to create significant public health harms:

Making a decision in haste without due consideration of the evidence, impacts, and other tools to address the issues of public substance use will not serve the community or its citizens well. It is important to recognize that enforcement activities can drive people to use drugs alone and can elevate risk of death. The preference is to emphasize referral to health and social supports, including overdose prevention sites.

Pivot anticipated an influx in bylaws precisely like these following the implementation of decriminalization in BC. As a member of the Province’s Decriminalization Core Planning table, Pivot repeatedly urged the Province to be proactive in preventing bylaws that undermine the aims of provincial decriminalization. We have moreover brought illegal public health bylaws to the attention of the Province and the Ministry of Mental Health and Addictions for years, requesting that the Province and cities alike heed their statutory responsibilities respecting bylaws that impact public health.

Despite our efforts, we have seen virtually no action or accountability from the Province. It is on account of this inaction—and the fear that Campbell River’s bylaws will similarly go unchallenged—that Pivot decided to file its petition. Pivot is represented by Staff Lawyer of Drug Policy, Caitlin Shane, and Sarah Runyon of Marion & Runyon.

Legal Basis:

Pivot is challenging the bylaws on the basis that they are ultra vires, or outside the scope of the City’s power. We are also seeking an interim injunction that suspends enforcement of the bylaws until our petition is heard.

In passing the bylaws, the City of Campbell River violated its obligations under the Community Charter, the Public Health Bylaws Regulation, and the Public Health Act:

Local governments cannot legislate public health bylaws without provincial approval—namely from the Minister of Health and/or Mental Health and Addictions. In addition, a city must not adopt a public health bylaw of any kind without consulting the regional health board or the MHO responsible for public matters within the municipality. The Public Health Act moreover requires that local governments “consider advice or other information provided to the local government by a health officer,” including bylaws, policies and practices respecting “public health issues, including health promotion and protection.” Contrary to all three laws, the City did not consult with any public health officials prior to adopting the bylaws.

In fact, the City refused even to accept a letter attempted to be issued by MHO Dr. Charmaine Enns on January 25th, 2023—the day before the City adopted the bylaws. In her letter, the MHO requested that council postpone adoption of the bylaws for six months, reminding council that “[w]hen making public health decisions, it is necessary to consult the local medical health officer.” She also warned that “enforcement activities can drive people to use drugs alone and can elevate risk of death” and that “[t]he preference is to emphasize referral to health and social supports, including overdose prevention sites.”

Dr. Enns has provided an affidavit to support our petition.

Why This Case Matters:

This case has precedent-setting potential for local governments and the future passage of public health bylaws. We know that cities around BC are currently considering bylaws similar to those of Campbell River; we also know that cities have long been passing bylaws that undermine public health with zero oversight from the Province. In filing our petition, Pivot hopes to send a message that this pattern cannot continue—either on the part of cities or the Province.

The threat of these consequences drives drug use further underground, exacerbating illness and overdose amid a toxic drug supply.

Campbell River’s refusal to seek or accept the oversight of health professionals in this instance marks a willful disregard for health and safety of vulnerable residents amid overlapping housing, overdose, and COVID-19 crises. As Pivot noted in its 2018 report, Project Inclusion, over-sanctioning drug users (particularly those who are unhoused) can have devastating health consequences:

The social context of substance use under prohibition means that people who use substances, particularly those who are marginalized based on their housing status, income, and other factors, are disproportionately subject to a range of harms such as criminal sanctions, fines and tickets, and loss of employment opportunities. The threat of these consequences drives drug use further underground, exacerbating illness and overdose amid a toxic drug supply.

The bylaws are just the latest in Campbell River’s historical targeting of drug users, following on a motion proposed last year to “analyze costs of overdose prevention services.” Campbell River City Councilor Tanille Johnston, who also opposed the bylaws, described efforts like these as “threatening and vindictive.”

Campbell River’s unhoused population is significant, and overlaps with substance use: a 2021 Homeless Count identified 116 people who were homeless (likely an undercount, based on methodological limits). More than half were unsheltered, meaning they don’t/can’t access shelters and instead rely on couch-surfing, informal shelters (i.e., tents, vehicles), and public outdoor locations. A significant number of respondents also reported “addiction” as a health concern, and 39% said that substance use issues were responsible for housing loss.

These are the community members who are targeted by bylaws that prohibit public consumption through hefty fines.

The city could have treated de facto decriminalization as an opportunity to work closely with people who use drugs, advocates, and service providers in a new context where people have (limited) protections from arrest for simple possession. Instead, they have shown drug users, as well as health and harm reduction stakeholders, that they aren’t interested in partnering to create a better city for all. When cities continually attack drug users and the services that support them, they only succeed in fostering a hostile civic environment.

We recognize how exhausting it is for drug users, harm reduction agencies and public health officials to continually argue against regressive policies and bylaws. We want to credit and acknowledge the community organizations who are working tirelessly to meet the needs of drug users in Campbell River, against the backdrop of regressive municipal policy. Overdose prevention and harm reduction services in Campbell River have saved lives. Community saves lives.

For a full list of resources in Campbell River, please visit the list put together by the Campbell River Community Action Team: Resources in our Community.