Under shifting legislation, people who use drugs are caught between rules & risks

As of January 2023, carrying small amounts (up to 2.5 grams) of illicit drugs was decriminalized in BC under an exemption to the Controlled Drug and Substance Act. The three-year pilot was a bold step intended to help frame drug use as a medical rather than criminal issue, and to reduce factors that have led to record-high drug-related death rates in the province.

But although possession is now partly allowed, people who use drugs (PWUD) remain in the cross-hairs of provincial and municipal legislation about where they can and cannot use those drugs. These grey zones may be putting them at additional risk.

First major update expands location limits

The exemption, under subsection 56 (1) of the Controlled Drug and Substance Act, states that adults found in possession of legal amounts of illicit drugs such as opioids, crack cocaine, methamphetamine and MDMA cannot be arrested, their drugs cannot be seized and no criminal charges can be laid, depending on where they are being used.

In the first major update since January, newly proposed laws coming down the legislative pipe would prohibit drug use in certain areas including bus shelters, sports fields, beaches and any park as they are defined within the Park Act.

Premier David Eby announced the changes early this fall following criticism from the opposition BC United and concern from some municipalities, including a call for such limits from the Union of BC Municipalities. Several city councils had already attempted to impose extra limits on where they would restrict open air drug use.

Campbell River initially attempted to impose an outright ban on public drug use but shelved the move after it was challenged on the grounds that public health falls outside municipal jurisdiction. Island Health contended that the ban would have a significant public health impact by making lethal overdoses likelier. The municipality later passed an adjusted version that used nuisance bylaws to limit use in public areas, naming specific locations and certain areas where drug use would be prohibited.

It’s intuitive for legislators to want to limit open drug use in public areas, especially family and child-centred areas. Concerns around accidental exposure to drugs, user paraphernalia and to drug traffickers are legitimate reasons to maintain a buffer zone around children’s spaces.

But moves to restrict use need to counterbalance concerns cited by Island Health, that using drugs more secretively makes deadly outcomes more likely—which was one of the main issues that partial decriminalization was intended to address.

Fears that out-of-sight drug use will bring deaths

The Union of BC Indian Chiefs issued a statement on Oct. 3, criticizing the newly tabled Bill 34 Act on the Consumption of Illegal Substances. They argued that the “legislation effectively re-criminalizes the most marginalized people who use drugs—those who are unhoused and do not have access to harm reduction services—and send a stigmatizing message that PWUD must hide out of sight, even if that means death.”

The fear of a fine or an arrest for either can force some PWUD inside where, unnoticed and unaided, they are far more likely to die of an overdose. In 2023, 80% of unregulated drug deaths in BC occurred indoors (48% in private residences, 32% in residences that include social and supportive housing, SROs, shelters).

Some existing legislation and additional funding for innovative harm-reduction options are working to reduce these numbers.

The Good Samaritan Overdose Act of 2017 makes it easier for people, worried about being charged or convicted themselves, to call for emergency assistance for others. But this applies mainly to peers using together; many indoor deaths are still the result of people using drugs alone.

On Oct 29, the government announced additional funding for PHS Community Services in Vancouver to support its integration of the Lifeguard App into its street services. A user activates the app before they take their dose. If the user does not turn off the automatic alarm that goes off 50 seconds later, the alarm becomes increasingly louder. After 75 seconds without a response, a voice to text message is sent directly to 9-1-1 services.

The government also added $567,098 to an existing $1,167,746 to expand and evaluate the virtual British Columbia Provincial Mental Health and Substance Use (MHSU) Network to address the needs of people with both mental health and substance use disorders.

Using outdoors increases the chance of getting help in the case of an overdose—but may also have a detrimental impact on the people nearby. Some municipalities have imposed limits even on legal substances for this reason.

Standard smoking laws could also come into play

Outdoor drug use is already partly limited by provincial and municipal smoking and vaping bylaws like the Clean Air and Tobacco Acts.

Many controlled substances can be heated, vaporized and inhaled in pipes and small bongs. In a 2021 study of preferred safe supply among PWUD in BC, 62.4% of the 282 participants said that smoking fentanyl, crystal methamphetamine or other opioids is far safer than ingesting or injecting them as a safe supply.

In accordance with the Clean Air bylaw 3962, both smoking and vaping are banned in Victoria, within 10 metres of public spaces and outdoor recreational areas frequented by children like playgrounds, public squares, ball parks and water parks. They are also banned within seven metres of the entryway to a business or public office and bus shelters. Researchers have shown that opioids disrupt thermoregulation and reduce core temperature, increasing the possibility that people who use them may seek to do so in the shelter of buildings, doorways and bus shelters.

Smoking bylaws are seldom enforced—the question is whether this changes for people using drugs while seeking shelter in these same places and where police are more likely to enforce them.

Jack Boomer, Director of the Clean Air Coalition of BC said that “the enforcement of smoking bylaws is passive and complaint-driven” by contrast,  illicit drug use is actively policed by law enforcement, even though illicit drug use perimeters around use in public spaces, mirror, almost exactly those found in the Tobacco Act and the Clean Air Act.

A Freedom of Information (FOI) request on the enforcement of smoking and vaping bylaws in Vancouver between Jan.1, 2019 and Aug. 2, 2023 revealed that not a single citation had been issued for smoking or vaping in the city.

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Outdoor safe inhalation site: Photo: Tweak Easy

Consumption sites could make indoor use safer—but they lack funding

At a January announcement, BC medical officer Bonnie Henry said, “The exemption is a vital step to keeping people alive and help connect them with the health and social support they need.”

But the province didn't couple its announcement with any new funding or support for more overdose prevention sites or supervised inhalation spaces— 80% of opioid poisoning is caused by inhaling a substance, not by injecting it—and that leaves municipalities in the CRD dealing with the quandary of how to enforce “open air” drug use.

An advocate who works for peer-based support service SOLID Outreach but who wished to remain anonymous because they are afraid public criticism may jeopardize the organization’s funding, said in an interview, “Our inhalation site is phenomenally easier to run outside in a less clinical atmosphere. Once we go inside, any steps of clinicalization of a thing makes it harder for people to up-take the service.”

Going inside also presents its own set of by-law and workplace safety challenges.

Advocates like Corey Ranger, a public health nurse, would like to see more indoor supervised inhalation spaces built in the CRD. But implementing supervised smoking services is challenging because of federal, provincial, municipal tobacco ordinances and bylaws, as well as occupational health and safety (OSH) regulations.

“I would be very discouraged to try to roll out a safe inhalation site in Victoria right now, and it’s getting harder,” said Ranger.

Two of the biggest hurdles to getting these spaces built are, ironically, the Clean Air Act and WorkSafe BC’s stringent ASHRAE standard 62.2 for acceptable Indoor Air Quality in work spaces. Outfitting a space to meet all the regulation intake, filtration, exhaust or discharged air requirements carries a price tag that goes well beyond the budgets of advocacy and overdose prevention service organizations. And the province isn’t showing them the money. Combating workplace exposure to harmful substances also requires service providers to wear protective hoods.

Until that happens, PWUD in the CRD are forced between legislative rocks and dangerous hard places when it comes to the safe, public and decriminalized consumption of controlled substances that January’s legislation promised to enable.

Connect here to Overdose Prevention Services.