Executive Summary: Key Legal and Evidentiary Issues

• A coalition of non-profit organizations representing people who use drugs challenged the Federal Minister's decision to significantly curtail BC's drug decriminalization pilot through a second amendment to a s. 56(1) CDSA exemption.

• Although the Second Amendment engaged section 7 Charter rights to life and liberty by increasing the risk of isolated drug use and reintroducing the risk of imprisonment, the Court found the deprivation accorded with the principles of fundamental justice.

• Evidentiary motions to strike Applicants' affidavits were granted in part; a more flexible evidentiary approach was adopted for constitutional issues, while strict Access Copyright exceptions governed non-constitutional grounds.

• Classification of the Decision as legislative rather than administrative triggered application of the Oakes framework instead of the Doré Charter values framework, distinguishing this province-wide rule from individual exemption decisions.

• The Court rejected claims that the Federal Minister "rubber-stamped" the Province's request, finding the underlying record and Health Canada's briefing materials demonstrated that the Federal Minister did not blindly approve the request.

• No breach of procedural fairness was established because the CDSA does not mandate consultation before issuing a s. 56(1) exemption, and policy decisions are subject only to statutorily mandated procedural requirements.

Background: BC's toxic drug crisis and the decriminalization pilot

British Columbia has been in the midst of a drug poisoning crisis for many years. In 2016, the BC Provincial Health Officer declared a public health emergency due to rising deaths resulting from the toxic illegal drug supply, and by 2024, more than 14,000 British Columbians had lost their lives due to toxic drugs. The parties agree that the crisis is tragic and devastating. In response, the Province implemented a range of public health measures, including harm reduction services such as take-home Naloxone and drug checking services, medication-assisted treatment, overdose prevention sites, supervised consumption sites, prescribed safer supply programs, and community outreach programs for people at risk of overdose. Central to this proceeding was BC's Decriminalization Pilot — BC being the first and only province in Canada to pursue the decriminalization of illegal substances — which sought to decriminalize the possession of small amounts of opioids, cocaine, methamphetamine, and MDMA in most locations across the province.

The statutory framework: section 56(1) of the CDSA

At the heart of this case is the Controlled Drugs and Substances Act, which has dual objectives: the protection of public health and the protection of public safety. Subsection 4(1) of the CDSA criminalizes the possession of controlled substances listed in Schedules I through III, while section 56(1) empowers the Federal Minister to grant exemptions from any provision of the Act if, in her opinion, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. The CDSA also contains complementary provisions, including the Good Samaritan Drug Overdose Act protections under subsections 4.1(2) and (3), which provide some legal protection from possession charges for those experiencing or witnessing an overdose who seek medical or law enforcement assistance, and the Evidence-based Diversion Measures under Part I.1, which came into force in 2022 and require peace officers to consider alternatives to laying charges for simple possession.

The original exemption and its amendments

In the autumn of 2021, the Provincial Government made a request to the Federal Minister to grant an exemption under s. 56(1) of the CDSA, arguing that criminalization of simple possession remained a significant impediment to the Province's ability to implement a comprehensive public health response to the illicit drug poisoning crisis. On May 31, 2022, the Federal Minister granted the Original Exemption, effective for a period of three years from January 31, 2023 to January 31, 2026, decriminalizing personal possession of up to a maximum cumulative quantity of 2.5 grams of covered substances for adults in BC. The covered substances were opioids, cocaine, methamphetamine, and MDMA. Limited exceptions where possession remained illegal included K-12 school premises, child care facility premises, airports, Canadian Coast Guard vessels or helicopters, and situations involving Canadian Armed Forces members or vehicles and watercraft operated by minors. Accompanying the Original Exemption was a Letter of Requirements, which set out the Province's commitments regarding expansion of harm reduction services, stakeholder engagement, public education, Indigenous engagement, law enforcement readiness, and ongoing monitoring and evaluation.
After receiving feedback from law enforcement agencies, local governments, and community members concerned with the Original Exemption's effect on public consumption of drugs, the Province sought a First Amendment. On September 18, 2023, the Federal Minister granted the request, recriminalizing possession within 15 metres of play structures in playgrounds, spray pools or wading pools, and skate parks. The CPT and Indigenous groups were consulted by the Provincial Government in advance of the First Amendment, and the Province noted reasonably broad support.

The BC Public Consumption Act and its failure

Concurrently, the Provincial Government developed Bill 34, the Restricting Public Consumption of Illegal Substances Act, which attempted to regulate the public locations where illegal substances could and could not be consumed. On November 9, 2023, the Harm Reduction Nurses Association filed a constitutional challenge with the British Columbia Supreme Court. On December 29, 2023, then-Chief Justice Hinkson granted an interim injunction staying the effect of the Act. The Provincial Government's application for leave to appeal the injunction was dismissed on March 1, 2024. While the Act received Royal Assent on November 8, 2023, it never came into force and has since been repealed.

The second amendment — the decision under review

In light of the constitutional challenge to the BC Public Consumption Act, the Province sought to achieve its aims through s. 56(1) of the CDSA by way of a second amendment to the exemption. By letter dated April 26, 2024, the Province requested a further amendment to expand the exceptions to include all public places, including places to which the public has access, and on public transit. The Province clarified that it wished for the exemption to continue to apply to private residences, healthcare clinics that provide outpatient addictions services, sanctioned overdose prevention sites (including those operated by housing providers), drug checking sites, and to people lawfully sheltering overnight.
On May 1, 2024, Health Canada asked the Province for further information and prepared a memorandum for the Federal Minister. On May 3, 2024, the Province submitted its response, substantiating its reported feedback with letters from various stakeholders including law enforcement and municipal governments. Health Canada then prepared a comprehensive decision-making package, delivered to the Federal Minister on May 6, 2024, which included memoranda, data on substance use trends, a Risks and Considerations Document, stakeholder responses, and draft exemption letters. Notably, Health Canada's memorandum to the Federal Minister warned that by broadly excluding public places from the exemption, people experiencing housing insecurity would have few places to use drugs without fear of criminalization, and that people may be more likely to use substances alone, increasing the risk of death and other overdose-related harms.
On May 7, 2024, the Federal Minister issued the Second Amendment, along with a new Letter of Requirements. The Second Amendment stated it was granted in consideration of the CDSA's dual purpose to protect public health and maintain public safety, and that part of achieving a balance is ensuring law enforcement has the tools needed to address public safety while continuing to take a public health approach to substance use harms. The new Letter of Requirements recognized the public safety concerns raised and called for strengthening complementary initiatives to address the social determinants of health, including immediate development of clear guidance and training for law enforcement.

Evidentiary issues: admissibility of affidavit evidence

Both Respondents brought motions to strike certain of the Applicants' affidavits, in whole or in part. The Respondents submitted that the impugned evidence was inadmissible because it did not form part of the record before the Federal Minister, nor did it fall within any of the exceptions to the rule against extrinsic evidence identified in the Access Copyright case. The Court adopted a dual framework: for non-constitutional issues, the usual Access Copyright exceptions governed, and none of the impugned evidence was found admissible. For constitutional issues, the Court found that a more flexible approach was called for, particularly where the Applicants had no opportunity to participate in the process that led to the Second Amendment and had no opportunity to put evidence relevant to the Charter issues on the record. Evidence speaking to the affiants' relevant first-hand experience and observations arising from their roles in the Applicant organizations was admitted for the constitutional issues. Certain public records were also admitted under the public records exception to the hearsay rule. However, academic articles tendered through lay witnesses were excluded as inadmissible hearsay, and passages containing impermissible argument or opinion evidence were struck.

Charter analysis: sections 7, 15, 8, 9, and 12

The Court classified the Second Amendment as a legislative decision, made pursuant to the Federal Minister's delegated rule-making authority under s. 56(1), for the specific purpose of enacting a binding rule of general application to all adults within the province of British Columbia. Accordingly, the Oakes framework — rather than the Doré Charter values framework — applied to the constitutional analysis. The Court distinguished this case from Toth, where the Doré framework had been applied to individual applications under s. 56(1) by healthcare practitioners seeking to possess psilocybin mushrooms for professional training.
On section 7, the Court found that the Decision engaged the right to life. The record showed that restricting the locations where individuals are allowed to possess controlled substances may lead people who use drugs to consume in isolated or private settings, which heightens the risk of death from toxic drugs as it hinders the timely detection and reversal of overdoses. The right to liberty was also engaged, as recriminalizing personal possession in most public spaces in BC introduced the risk of imprisonment which did not exist during the 18-month trial period from January 2023 to May 7, 2024. However, the Court concluded that these deprivations accorded with the principles of fundamental justice, finding the Decision was not arbitrary, not grossly disproportionate, and not overbroad. The Decision was found not to be arbitrary because it sought to return tools to law enforcement to address public safety concerns arising from public drug use. Several mitigating factors prevented the Decision from being grossly disproportionate or overbroad: the continued allowance of personal possession where unhoused people are legally sheltering and in provincially designated health clinics (including OPS and SCS); the Evidence-based Diversion Measures in Part I.1 of the CDSA; the Good Samaritan Act protections; the Public Prosecution Service of Canada's Guideline urging prosecutorial restraint; and the training of law enforcement to limit arrests and seizures in most cases involving personal possession.
Regarding section 15 equality rights, the Court acknowledged that Indigenous and other racialized persons are disproportionately affected by the toxic drug crisis — a fact not disputed by the parties. However, applying the test from R v Sharma, the Court held that the Applicants had not shown that the Decision itself created or contributed to a disproportionate impact on Indigenous and racialized people who use drugs as compared to their non-Indigenous and non-racialized counterparts. Regarding drug dependency as a potential disability ground, the Court found that even if drug dependency is considered a disability under s. 15(1), the Second Amendment does not impose a burden or deny a benefit, as it is an ameliorative measure that decriminalizes personal possession in certain locations. Claims under sections 8 (search and seizure), 9 (arbitrary detention), and 12 (cruel and unusual punishment) were dismissed as speculative, grounded in what might happen during police enforcement rather than what the Decision itself does.
Alternatively, under the Doré Charter values framework, the Court concluded that the Decision proportionately balanced the Charter rights of people who use drugs with the statutory objectives of the CDSA.

Reasonableness and procedural fairness

On the non-constitutional grounds, the Court applied a reasonableness standard. The wording of s. 56(1) and the nature of the Second Amendment as a policy decision with complex, multifaceted, public interest considerations both indicated that the Federal Minister's discretion was relatively unconstrained. The Court rejected the argument that the Decision was made in a rushed manner without sufficient evidence, noting that the Federal Minister and Health Canada were well acquainted with the issues and the policy context, having worked with the Province on the Decriminalization Pilot since 2021. The Federal Minister had before her an extensive record including data on public health indicators from roughly 2016 to 2023, as well as Health Canada's briefing materials, which carefully canvassed the points raised by the Applicants.
The allegation that the Federal Minister "rubber-stamped" the Province's request was rejected. The Court noted that the specifications of the Province's April 2024 Request were different from the Second Amendment actually granted — for example, the carve-outs from the application of s. 4(1) requested by the Province were not the same as what the Second Amendment ultimately provided. The Court further found that the reasons provided by the Federal Minister in the Second Amendment and the new Letter of Requirements were sufficient to explain the change in policy direction.
On procedural fairness, the Court acknowledged that the Province's exclusion of the Core Planning Table members and others representing people who use drugs — after years of close collaboration — was understandable as a source of frustration, and that it would strike the Applicants as abrupt and unfair. The Provincial Respondent candidly conceded that it did not consult the CPT about its April 2024 Request. However, the Court held that a free-standing duty of procedural fairness does not extend to policy decisions such as the Second Amendment. Policy decisions are subject only to statutorily mandated procedural requirements, and the CDSA does not mandate any public consultation or other procedural fairness requirements for applications under s. 56(1).

The ruling and outcome

The Federal Court dismissed the application for judicial review. Madam Justice Conroy found that the Applicants had failed to identify a reviewable error in the Decision to significantly curtail the Decriminalization Pilot. The Respondents' motions to strike portions of the Applicants' affidavit evidence were granted in part. The successful parties were the Respondents — the Attorney General of Canada and the Minister of Health of British Columbia. No costs were awarded, as the parties advised the Court during the hearing that no costs would be sought regardless of the outcome.