The MJLH‘s 4th Student Colloquium entitled “Insight on Insite: The Evolution of Canada’s Drug Treatment Policy” held on March 10th featured lawyers, health providers, academics, politicians, community workers and law enforcement representatives. With the Supreme Court’s (SCC) recent landmark decision, and as stakeholders brace for the impact of Harper’s Omnibus Crime Bill on preexisting drug treatment strategies, the Colloquium was a timely survey of the complex economic, legal, social, and medical issues at the nexus of drug use harm reduction initiatives.
Kicking off the discussion was the Honourable Libby Davies. She spoke of Insite’s “recipe” for success: a combination of legal challenges, political mobilization and community organizing over more than a decade leading to Insite’s eventual acceptance. The criminalization of drugs and drug use in the DTES was increasingly recognized as an economic and social failure disproportionately targeting marginalized populations. Davies raised some of the class issues concerning drug treatment policies citing pervasive misconceptions that drug use predominantly impacts the poor. She attributed these misconceptions to the visibility of marginalized populations where addictions interact with poor access to treatment, increasingly limited social services and affordable housing, which in turn exacerbate drug use. While drug addiction is in fact a widespread affliction impacting all demographics, the visibility of such users makes them particularly vulnerable to criminalization and stigmatization. According to Davies, years of community organizing led to alliances between unlikely bedfellows (such as DTES and Vancouver West parents on projects like Grief to Action). This changed popular misconceptions about drug use and created momentum for mobilizing support for Insite within and beyond the DTES.
While much of the discussion revolved around harm reduction initiatives, Dr. Kathryn Gill, McGill Associate Professor of Psychiatry and Director of Research at the Addictions Unit of the McGill University Hospital Centre (MUHC), called for a broader approach to drug policies. Harm reduction measures, while important, are not enough. A truly effective drug policy must involve multiple avenues to address addiction, ultimately aimed at discontinuing drug use. Dr. Gill lamented the desperate lack of treatment available to drug users and called for additional resources to train professionals in the particular challenges of drug use and its intersection with social issues such as mental health and the neuro-cognitive challenges users face. Dr. Gill questioned why harm reduction methods dominate the debate around drug use. She argued that some harm reduction practices are harmful, and made a compelling case that the introduction of harm reduction measures should impose accompanying duties to improve access to treatment, and wider systems of care and service delivery.
Executive Director of the Canadian HIV/AIDS Legal Network, Richard Elliot, provided a comprehensive background to the Insite legal challenge. The Canadian HIV/AIDS Legal Network was granted intervening status and played a political and strategic role in the struggle to ensure Insite’s continued operation when the Conservative government, the RCMP and the CPA opposed granting a continued exemption. Elliot provided a sobering analysis of the SCC’s decision and expressed disappointment that the Court imposed inappropriate criteria for allowing the operation of safe injection sites. According to Elliot, the need to consider the impact of safe injection sites on crime rates and expressions of community support or opposition create the potential for problems going forward if valuable and life-saving services offered to marginalized populations are beholden to the preferences and clout of a powerful majority. Ultimately, the SCC’s decision was a timid one, and the unanimous Court lacked the courage to follow through with what were its apparent views at the outset of the judgment. On a more positive note, Elliot celebrated the affirmation that drug users enjoy section 7 protection, and the clear indication that courts will step in when governments exercise their criminal law power in a way that contributes to preventable death and disease.
The presentation made by University of Victoria law Professor Margot Young was a highlight. Professor Young briefly spoke about the shift in discourse of drug addiction as a choice to drug addiction as a disease. Sharing some of Mr. Elliot’s reservations about the legal ramifications of Insite, Professor Young pointed out that the legal outcome is perhaps not as significant as the political message sent by the decision. Insite may be regarded as establishing a right to safe injection sites, creating a political barrier to governments looking to stop the advance of safe injection sites. While the SCC may have given the narrowest possible judgment in favour of Insite, the popular political imagination may provide a powerful counterbalance to this diffident judgment. Professor Young also expressed uneasiness regarding a doctrinal feature of Insite. The Controlled Drugs and Substances Act (CDSA) is constitutional by virtue of the availability of a discretionary exemption that the Minister of Health may grant for “medical or scientific purpose” or in “the public interest” (see section 56 of the CDSA). This scheme ultimately leaves rights vulnerable to supplication to the Minister and trust that this discretionary power will be exercised in a constitutional way. That the very mechanism rendering legislation constitutional in this context risks being exercised unconstitutionally, should be cause for alarm and uneasiness.
Dr. Carole Morissette, a longtime family doctor working with injection drug users in Montreal participated in a feasibility study showing that the establishment of safe injection sites provides a host of benefits. This project mobilized significant local partners, including CACTUS Montreal, one of the first needle exchange programs in North America. Mr. Jean-Francois Mary, the director of community organization and communication at CACTUS Montreal, provided first-hand accounts of the daily challenges of users and tracked the historical arc of political and social attitudes towards safe injection sites in Montreal. Mr. Mary perceives the current atmosphere for drug users as relatively regressive, contending this period has been characterized by increased antagonism between visibly marginalized people and law enforcement. Mr. Mary cited the recent public shootings of mentally ill street people in Montreal as evidence of law enforcement’s lack of understanding of mental illness, and the need to reframe the debate.
Mr. Mary also speculated about the impact of the forthcoming Omibus Crime Bill. Decreasing crime rates in Montreal are being accompanied by a curious rise in feelings of insecurity, attributed in part by Mr Mary to flawed perceptions about social issues around drug use and itinerancy, and the dissonance caused when police presence is ramped up to address social ills. Not so long ago, local law enforcement and coalitions of street people, sex workers, and addicts negotiated areas within the city where moratoriums were initiated on the antagonism between these groups and law enforcement. This is no longer the case as law enforcement is cracking down — “la judicialisation” is again carrying the day. An increased law enforcement presence and lack of available social services for the homeless and mentally ill have led to increased clashes between disorganized and visibly marginalized groups, such as drug users and law enforcement ill-equipped to deal with the complex intersectionality of issues such as poverty, homelessness, mental illness, and drug use. According to Mr. Mary, while in the past judges have consistently refused to incarcerate these individuals, the Crime Bill will reduce the availability of flexible solutions for drug users, thereby further criminalizing marginalized groups, and creating delays in an already lethargic judicial system.
Mr. Luc Beaucage, an RCMP officer of over 40 years, echoed some of these concerns and bemoaned the lack of training young officers receive in dealing with issues of addiction, itinerancy and mental illness. Calling for policies that encourage exchange and cooperation between law enforcement, users, community organizers, and health providers, Mr. Beaucage provided an essential voice in the call to modernize Canada’s overly myopic drug treatment policieies.
Some concluding reflections
Perhaps it is true that the SCC coalesced behind Insite in the narrowest possible way, retreating from what could have been a more stalwart safeguard against criminal policies that needlessly harm vulnerable populations. However, the panelists seem to agree that Insite was a momentous symbolic victory. In light of Insite, there is potential for mounting conflict in Canada’s drug treatment policies as widespread support for drug treatment and harm reduction initiatives deepen, and the federal government continues to look to law enforcement to address social ills. Finally and despite any inadequacies, Insite indicates that governments should think twice before undertaking social policies that fly in the face of medical evidence.
McGill Journal of Law and Health 