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Norman Siebrasse: Why this B.C. court decision proves it’s time to routinely use the notwithstanding clause


British Columbia has been wrestling with the problem of public drug abuse for years. It has pioneered innovative programs such as supervised consumption sites where addicts can safely use illegal drugs. But striking the right balance between helping drug addicts and creating a safe livable city has proven to be a very difficult problem.

A recent Act tried to fine-tune the current approach by preventing drug users from using fentanyl and other illegal drugs in public parks. This might seem fairly uncontroversial, and yet, in a recent decision, Chief Justice Hinkson of the Supreme Court of British Columbia granted an order preventing the Act from coming into effect until the end of March, on the basis that it was arguably a Charter violation. The decision is shocking. How could it possibly be unconstitutional to stop people from using fentanyl in public parks? The implications are even more shocking. We need to get into the weeds of the law to see where the problem lies. 

The federal Controlled Drugs and Substances Act makes it illegal to possess or traffic drugs such as fentanyl. The Act provides that the federal minister of Health may grant exemptions. As part of its strategy to address drug abuse, at the beginning of last year, British Columbia got an exemption from the Act to decriminalize possession of small quantities of certain drugs, including fentanyl. The exemption did not apply to certain listed premises, such as K-12 schools, skate parks, or wading pools. Last fall, after most of a year’s experience with the exemption, the province passed the Restricting Public Consumption of Illegal Substances Act. Its main effect is to fine-tune the exemption, by adding public parks, beaches, and sports fields to the list of places where illegal drugs cannot be used.

But the Act doesn’t actually make it a crime to possess drugs in public parks. If someone is using drugs in a public park, the Act authorizes the police to ask the drug user to stop using drugs or leave. It is only an offence if the drug user refuses to leave when asked. If the drug user refuses to leave or stop using drugs when asked, then the police officer may seize the drugs. 

To recap, if a police officer comes across someone using fentanyl in a public park, the Act allows the officer to ask the drug user to stop using and leave. That is what Chief Justice Hinkson held is potentially unconstitutional. The direct implication of the decision is that there is arguably a Charter right to use fentanyl in public parks. If that seems crazy, it is. So let me back up my assertion.

In his brief discussion of the Charter breach, Hinkson CJ began by noting that a law that prevents access to health care makes out a deprivation of the right to security.[50] But this Act clearly does not directly prevent access to health care, so this is a bit mysterious. He then said that the real harm is “by directing [drug users] and those who care from them away from public places, there is a prescient risk that the Act will push [drug users] further from health services and deprive accesses thereto.”[50] 

How does asking drug users to leave a park while they are on drugs prevent their access to health care? Hinkson CJ accepted two main arguments. One is that if a user has their drugs seized they may suffer withdrawal or buy lower-quality street drugs.[76] This is weak—if the user doesn’t want their drugs seized, they can simply leave the park when asked. Otherwise, the police officer has no right to seize their drugs.

The second argument is that fear of encountering police in public places will lead drug users to use in private, which is more dangerous because if a user overdoses in public they are more likely to get help.[79] This is also a weak argument—after all, B.C. has safe injection sites for exactly that purpose. But it is nonetheless the key point. This argument doesn’t turn on anything specific about the new Restricting Consumption Act. These arguments would apply equally to the Controlled Drugs and Substances Act itself. The bottom line is that this decision holds that it is arguably unconstitutional to prohibit drug users from using drugs in public. The logic is that we must allow them to use drugs in public because if they do they are more likely to be saved if they overdose. The breach of a Charter right is a trump card, that overrides the right of families to go enjoy a public park without drug users.

Premier David Eby joined by Minister of Public Safety and Solicitor General Mike Farnworth announce that the B.C. government is banning the use of hard drugs in public places in Victoria, B.C., on Thursday, October 5, 2023. Chad Hipolito/The Canadian Press.

I say it is “arguably” a Charter violation because in this kind of case, seeking a temporary order, it is not necessary to prove that there is a Charter violation—it is enough to prove that there is “a serious issue to be tried.” Maybe this order will be overturned on appeal. Maybe the Act will be upheld if it is challenged on a more permanent basis after it goes into effect. But even so, we have a senior judge telling us that it is arguably a Charter violation to stop drug users from doing drugs in a public park. 

That it is even arguably a violation shows us that something has gone very wrong with the Charter. Stepping back from the specific legal grounds, Hinkson CJ considered that “the unregulated nature of the illegal drug supply is the predominant cause of increasing death rates in British Columbia,” and he accepted that the basic drug policy framework that makes serious drugs illegal is the primary driver of this harm. This is classic governing from the bench. The best way to deal with drug abuse is a difficult public policy issue involving difficult tradeoffs between the interests of drug users and the public. Complex policy decisions need to be made by the legislature, not the courts. The Charter was originally intended to protect fundamental rights from an intrusive government. It should not distorted into a tool for judges to control public policy. 

It would be entirely appropriate for the B.C. government to invoke the notwithstanding clause. Indeed, the time has come for the notwithstanding clause to be used routinely. The Charter gives considerable power to judges, but it is not a magic scroll that also gives them mystical powers of wisdom. The words of the Charter provide no real constraint, at least as they have been interpreted by the courts. The courts should be a sober second thought, not the final word. If a judge decides certain legislation is contrary to the Charter, the legislature should be able to say “Thank you for your opinion, but on careful reconsideration, we disagree, and it is democratically elected representatives of the people who have the final say.” 

Sean Speer: The consequences of Canada’s housing-based inequality are immeasurable


Eric Lombardi’s recent essay for The Hub on how Canada’s housing crisis risks transforming the country into a neofeudal society certainly touched a nerve. It reflects a growing (and compelling) view that one might describe as “the housing theory of everything” in which high housing prices have come to hold explanatory powers over various economic, social, and even psychological trends in modern Canada. 

His basic thesis—the inability of many young Canadians to enter the housing market without familial financial support is creating a new source of social bifurcation—is straightforward and supported by evidence. Recent polls in British Columbia and Ontario for instance have found that 40 percent of first-time homebuyers in the two provinces have depended on financial support from their families. 

These figures are consistent with new Statistics Canada research that shows that the homeownership rate for millennials and members of Generation Z whose parents themselves are homeowners is more than double those whose parents are not. Housing wealth, in other words, has increasingly come to beget more housing wealth. 

The bigger point—housing-based inequality is an interpretive lens for understanding broader trends including the public’s general sense of malaise—is one that the Trudeau government has quite possibly come to understand too late for its own political survival and one that Canadian policymakers more generally have failed to understand to the detriment of current and future generations. 

One of the indirect yet powerful ways in which these housing affordability challenges have manifested themselves is in the form of delayed family formation and declining fertility rates. The interrelationship between housing prices and family planning is somewhat intuitive. Housing costs—particularly in high-cost localities—are a major household expenditure and therefore necessarily influence our short- and long-term expectations including when to start a family and how many children that families ultimately ought to have. 

A well-regarded 2014 economics article put it this way: 

Rising home values have a negative impact on birth rates because they represent, on average, the largest component of the cost of raising a child: larger than food, childcare, or education. This implies that when the price of housing rises, the price of having children also rises. This price increase leads couples to delay childbearing or to have fewer children altogether.

This interplay between housing and family formation is having perverse effects in Canada. Unlike most peer jurisdictions, babies in Canada have become, in the words of demographer Lyman Stone, a “luxury good.” His research finds that higher-income Canadian families tend to have both higher desired and actual fertility rates. As he put it in a 2023 episode of Hub Dialogues: “Canada’s a place where fertility is uniquely, positively correlated with income, which is nerd speak for Canada’s a place where family is a sign of wealth and social class. If you’re rich, you can buy the right to have kids.”

Housing is a big part of this story—especially as it has become a leading indicator of income and wealth in Canadian society. Previous analysis for The Hub by Steve Lafleur for instance has shown that a household must now be among the top 10 percent of household income to even qualify for a mortgage in the City of Toronto. Similarly, research by TD Economics has found that wealth inequality in Canada is, by and large, a function of the differing outcomes between homeowners and non-homeowners, including both intra- and inter-generationally. 

It’s not a complete coincidence therefore that Lombardi’s essay was published the same week as new data from Statistics Canada that the country’s fertility rate hit an all-time low in 2022. At 1.33 children per woman, the country is not only 0.6 percentage points below the replacement rate, but its year-over-year drop was among the largest in high-income countries and Canada’s own history. The same analysis found that the average age of first-time mothers has increased from 27.6 years in 1976 to 31.6 years in 2022. 

Although these developments are undoubtedly multicausal, it’s notable that Canadian women tell consistently pollsters that there’s a gap between their desired and actual fertility rates. They’d actually prefer to have a number of children approximating the replacement rate, but there are different impediments standing in their way including high housing costs. 

Thiago Lang and Graziela Cariello feed their son 19-month-old son Pedro at their home in Barrie, Ont., on Monday, April 25, 2022. Tijana Martin/The Canadian Press.

As Stone has previously written

If young people are stuck in smaller houses than in the past, or in more unstable or expensive housing situations, it could reduce fertility…There is some good suggestive evidence that this may be happening… at every stage, the housing situation for young people disfavours childbearing more than in the past, which is almost certainly a major driver of low fertility today. 

Even if one accepts that Lombardi’s claims about neofeudalism may seem a bit provocative, his characterization of Canada’s socioeconomic context in which homeownership and child-rearing are increasingly expressions of (hereditary) wealth clearly resonates with a lot of young people (including members of The Hub’s staff) who are seeing both become the purview of their wealthier and more advantaged peers. 

Setting aside the economic and social costs of high housing prices and their effects on fertility rates for a minute, there’s something conceptually incompatible with the egalitarian promise of Canadian society for the “haves” to be able to own homes and have children and the “have nots” to have neither. These basic milestones of what has traditionally been understood as the “good life” shouldn’t be treated as luxury goods. A society in which they are—in which the aspirations to own a home or become a parent are understood as signs of wealth or social class—can persuasively be defined as neofeudal. 

As for the costs themselves, they can never be fully measurable. A full accounting of the opportunity costs of the births and lives that never come into being or the social costs of growing stratification will ultimately be greater than we can ever understand.