BC Conservatives Threaten Use of Notwithstanding Clause If Courts Rule Involuntary Care Violates Human Rights

BC Conservative leader John Rustad recently threatened that his party would consider using the ‘notwithstanding clause’ when it comes to involuntary care in BC.

The notwithstanding clause allows a government to enact a law regardless of whether or not they violate human rights.

The law essentially allows a government to “override” a portion of the Canadian Charter of Rights and Freedoms. Many opponents of the clause fear that its application in one area, such as drug use, could mean that it will also be used in relation to other rights and freedoms.

While speaking on a podcast about BC politics, Rustad claimed that if a BC Conservative plan to put people who use drugs into involuntary care were challenged in the courts, he would consider using the notwithstanding clause to avoid being “prohibited by a judge making a policy.”

“We may end up getting a challenge in terms of the involuntary compassionate care, we may end up getting a challenge from section seven under human rights,” Rustad said. “If that were to happen, we would certainly argue the case with the judge that this is the right thing to do for people and the right thing to do in British Columbia.”

“If the judge were to disagree with us, we would have to consider using the notwithstanding clause. We need to be in a position to be able to do what’s right for people in British Columbia and that should not be prohibited by a judge making a policy.”

Other candidates are now echoing Rustad’s threat to invoke the notwithstanding clause.

Another BC Conservative candidate, Tim Thielmann for Victoria-Beacon Hill, made a similar statement during an all-candidates event at James Bay New Horizons last week when asked about people feeling unsafe due to “mental health and addictions” in Victoria.

“As John Rustad has said, we will proceed with involuntary care for those that need it, people that have overdosed twice in a day on fentanyl, people that are walking down the streets shouting at the sky and don’t know where they are,” Thielmann said in a clip from the event obtained by PressProgress. “Those people need us to reach out and grab their hands because they’re not able to put up their hands themselves and we will protect that program through the notwithstanding clause if we need to.”

“That means for a period of up to five years we can ensure that that program moves forward so that it can’t be blocked by the same activists that lobbied the government in the past to stop it from happening.”

The BC Conservatives have already faced pushback for their approach to drug policy in BC as well as the party’s use of “dehumanizing” tropes, but DJ Larkin, lawyer and Executive Director of the Canadian Drug Policy Coalition, says invoking the notwithstanding clause could have broader implications.

“The notwithstanding clause essentially says that a law can remain in place even if it puts your life in danger to such an extent that it is disproportionate, it is unreasonable and it is not the most minimally impairing thing the government could do,” Larkin told PressProgress.

“So when a politician says we would pursue this even though there are other options out there that would be more effective and safer, I think that should give people pause because that is quite a remarkable statement and is a clear indication of you someone who is looking to advance policy that is not effective and could be quite destructive.”

Larkin adds that the process of individual challenges can be quite arduous and take up valuable public resources—something that could be avoided altogether.

“What is being put forward is this notion of protecting the legislation so that it can’t be challenged under the Constitution,” Larkin explained “That doesn’t mean that it wouldn’t be challenged, what it does mean is that more people would be harmed in the interim. Those challenges can end up taking longer, being more expensive, and taking up more public resources rather than putting those resources into the services that people are asking for.”

Larkin says the reemergence of involuntary care as a solution, and the doubling down by the BC Conservatives regarding the notwithstanding clause is the result of trying to offer up a simplified solution to a complex problem.

“Withdrawing support from things like harm reduction again is used as a way to oversimplify, so it tries to create a villain so that then you can create a hero and here the characterization of the villain is based in misinformation and the characterization of the hero in voluntary care is not supported by evidence,” Larkin said.

Leslie McBain, a drug policy advocate and co-founder of Moms Stop The Harm, says that by threatening to use the notwithstanding clause, the BC Conservatives are choosing “fear over evidence.”

“They’re going backwards,” McBain told PressProgress. “It’s fear over evidence.”

“It seems to me what John Rustad and the Conservatives have done is instead of starting at the beginning of the spectrum where we look at people with addictions as people with a health challenge, maybe a mental health challenge, how to support them and how to help them through their lives, help them stabilize and get better, he has gone to the most radical end of the spectrum which is ‘lock them up.”

McBain adds that the threat of using the notwithstanding clause to force people into involuntary care feels like something in a “police state.”

“If you took one of those people who’s hoping for recovery and threw them into involuntary care, you’ve taken away their freedom, they’ve been taken away from their community, and if they have no homes, where are they going to go?” McBain said. “They’re going to go back to the community they came from which is possibly the streets and they’ll be very vulnerable to the toxic drugs and we will see deaths.”

McBain adds that as a co-founder of Moms Stop The Harm, she regularly speaks with families across the province and across the country who are struggling to get their loved ones into detox or recovery.

“They can’t even get into detox right now because there’s not enough facilities. They can’t get their loved ones into voluntary evidence-based treatment because there isn’t enough,” McBain said. “They just end up waiting for the terrible phone call.I got that phone call. I know what that’s like waiting for that.

“The Conservatives are going to spend—I’m not sure what figure they’d come up with— on involuntary care and this is only a political move to make people have the perception of public Safety. It’s not going to work. It’s inhumane.”