Supervised Injection Sites: Is the Supreme Court of Canada’s Insite Decision Off-Target?
Meara Conway, Executive Online Editor
North America’s sole legally supervised injection site located in the heart of Vancouver’s Downtown Eastside (DTES) will remain open, says the Supreme Court of Canada (SCC). After over a decade of lobbying local, provincial and federal governments, Insite began operating as a harm reducing measure in 2003, managed jointly by the regional health authority and a local non-profit.
Insite operates under a discretionary exemption from prohibitions of possession and trafficking controlled substances under s. 56 of the Controlled Drugs and Substances Act (CDSA). The exemption for medical and scientific necessity was initially granted by the then Liberal federal government’s Minister of Health, and was subsequently extended to June 2008, whereupon the “tough on crime” Conservatives indicated they would deny future exemption applications.
Despite its detractors, Insite enjoys overwhelming popular support. Insite has been the focus of multiple studies published in over a dozen peer-reviewed journals which confirm again and again Insite’s success at saving lives by reducing the risk of drug overdose, reducing the spread of infectious diseases such as HIV/AIDS and hepatitis B and C, improving health without increasing the incidence of drug use, and reducing crime in the surrounding area.
On appeal from the British Columbia Court of Appeal, the SCC adjuticated whether the prohibitions on trafficking and possession of the CDSA (ss. 4(1) and 5(1)) are constitutionally applicable to the activities of Insite by virtue of Canada’s division of powers; and whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter; alternatively the Court considered whether the Minister’s denial to grant an exemption infringed the claimants’ s. 7 rights. While Canada has power to enact criminal laws, decisions over health fall within provincial jurisdiction under ss. 92(7), (13), and (16) of the Constitution Act 1867.
Division of Powers
Unlike the British Columbia of Appeal, the Court opted not to engage in structural judicial review and decide the case along division of powers. Implicit in the judgment is the acknowledgment of interjurisdictional immunity’s ambiguous legacy. According to the Court, the premise of watertight cores is in tension with the evolution of Canada’s more adaptable concepts of double aspect and cooperative federalism and to “apply [interjurisdictional immunity] here would disturb settled competencies and introduce uncertainties for new ones.” In short, absent Charter issues, Insite’s ability to operate — notwithstanding health being a protected provincial undertaking — would yield to the federal paramountcy of the CDSA.
Charter claims
According to the SCC, while the prohibition on possession of drugs engages the claimants’ s. 7 rights, the Minister’s ability to grant targeted exemptions under s. 56 for a “medical and scientific purpose” or in the “public interest” preserves the constitutionality of the CDSA. However, the Minister’s refusal to extend a s. 56 exemption from the CDSA prohibitions was found to be an arbitrary and grossly disproportionate contravention of the claimants’ rights under s. 7 (life, liberty, security of person). As Insite staff would be operating within the legal definition of illegal drug possession under s. 4(1) of the CDSA due to their minimal involvement with clients’ drug use, they would be exposed to potential imprisonment. This threat to the liberty of Insite staff would in turn impact the s. 7 rights to security of person and life of clients who depend upon Insite for potentially lifesaving health services. Finally, the application of s. 4(1) to the clients of Insite would directly engage their s. 7 interests, as their ability to use Insite’s lifesaving and harm reducing services would depend upon an exemption to prohibitions on drug possession.
The Minister’s decision was found to bear no relationship to the objectives behind the CDSA, which have been identified as the protection of public health and public safety [Malmo-Levine]. In fact, in describing the Minister’s refusal as arbitrary, the Court stressed the exemption would rather further the dual objectives of public health and safety. Moreover, the refusal was found to be grossly disproportionate in its effects of denying Insite’s services in light of the overwhelming benefits of Insite and its complete lack of discernable negative impacts. In sum, the effect of the Minister’s refusal would have threatened the health and lives of Insite’s potential clients. Writing for a unanimous court, the Chief Justice drew attention to the failure of traditional criminal law strategies to meaningfully reduce drug use in the DTES, the overwhelming local support enjoyed by Insite, the absence of observable disadvantages of Insite’s operation, and even the reported reduction in crime by a local business.
The Court ordered the Minister to grant an exemption to Insite forthwith but held that any change in Insite’s operation would not bar the Minister from withdrawing it in the future.
Questions going forward
According to Chief Justice McLachlin: “Where, as here, the evidence indicates that a supervised injection site will decrease the risk of death and disease; and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.” In fact, the decision may raise more questions than answers going forward.
According to the Court, the Minister must consider “whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, of the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expression of community support or opposition.” [152-153]
The next day, The Globe and Mail charged the SCC with forging “a new means to strike down law” and giving “judges a new tool for activisim… [ensuring] that legal waves would surge across several important Charter of Rights cases already in the courts…” This is a highly doubtful and exaggerated claim. While the case appears to be a triumph of evidence over ideology at first blush, the judgment is surprisingly narrow and raises concerns for those hoping it will open the door to similar initiatives across the country.
A Catch 22?
Insite was initially granted an exemption by the then Liberal government. During its operation, Insite was fortunate to be the subject of multiple studies. The SCC decision may have created a kind of Catch 22 going forward. In short, to amass the requisite evidence, future harm-reducing measures will need initial compliance and support from multiple regulatory and governmental levels. What is the potential for future pilot projects with a Conservative majority, increasingly emboldened to push its “tough on crime” agenda in Parliament?
What role for the community’s response?
Here in Quebec, the government has initiated a program to oversee the opening of facilities wherever deemed “socially acceptable ” by communities, according to Health and Social Services Minister Yves Bolduc. To be sure, the Court made considerable issue of the role of community support or opposition. The Chief Justice was right to point out that “Existence is bleak” in the DTES. Her sympathetic and exhaustive portrayal of life in the DTES was not the usual tone adopted in providing background and facts in SCC adjudications. The decision must be appreciated within the context of increased media coverage and mounting political pressure to address the DTES: media coverage of the Pickton murders, the Stolen Sisters campaign, and the escalating health crisis surely contributed to building community support and opening the door to a favourable decision for Insite. However, it should be noted that the DTES is something of an anomaly within Canada. Vancouver is well-known for its stark urban juxtaposition of staggering wealth and deep deprivation. Complex factors, including Vancouver’s mild climate, have made it a Mecca for homeless drug users. As the DTES is a veritable spatial ghetto, what are the implications for cities across Canada (such as Montreal) with more heterogeneity and dispersed pockets of poverty and drug use? Barring Montreal’s relatively liberal social attitudes to issues around drug use and crime, the potential for successfully launching safe injection sites will suffer if some citizens (though theoretically supporting such initiatives) can say “not in my backyard!”
In short, the Court’s enlightened discussion of choice and addiction,1 and the emphasis on the need to establish the health and safety benefits of a safe injection site, do not sit well with the need for local support. Judicial references to community standards have a checkered past. Community standards tests — read “the deep moral consensus of the nation, as interpreted by judges”2 — have historically provided considerable ammunition for regulating that which is considered immoral or indecent by invoking supposedly democratic entities (i.e. the community). While the kind of established and documented popular support discussed in Insite can be distinguished from the notion of community standards discussed by Valverde, I question why, short of harm, community support should bear upon the adjudication of the permissibility of Charter-infringing governmental action.
Since the above blog was first posted, predictable resistance has met efforts to set up safe injection sites in Montreal. A coalition of downtown residents associations is calling for an immediate moratorium on any attempt to introduce supervised injection sites in their neighbourhood.3 This begs the question: how will the role of “community support” — barring a DTES anomaly — be negotiated in the future? When those who need the service most have no voice, no lobbying clout, and no influence to ensure that “community support” is truly representative, its central role in the Court’s reasoning could neutralize the apparent ground gained in Insite going forward.
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1 The SCC rejected the government’s moral argument that those who commit crimes should be made to suffer the consequences, opting rather for a more nuanced understanding of addiction as an illness rather than a choice. See paras 97-106.
2 See Valverde’s discussion of R v. Butler; R v. Mara; R v. Potts; R v. McKeigan found in Valverde, “Law’s Dream of a Common Knowledge” Chapter 2 The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms 2003 Princeton University Press Woodstock, Oxfordshire 28 – 53. It should be noted that the “community standard” (of decency) test was formally rejected in R v. Labaye short of harm or signiicant risk of harm.
McGill Journal of Law and Health 