Canadian Government's attempts to shut down Vancouver's Safe Injecting Facility ruled unconstitutional

Date: 28 May 2008

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In a landmark decision, the Supreme Court of British Columbia has granted users and staff at Insite, the Vancouver Safe Injecting Facility (SIF), a constitutional exemption from prosecution under federal drug laws. This decision prevents attempts by the Canadian government to shut down North America's only SIF.

The court challenge was taken by a number of groups, including the Vancouver Coastal Health Authority and the Vancouver Area Network of Drug Users, following threats by the Conservative government of Canada, and Health Minister Tony Clement, to rescind the license exempting Insite from various sections of the Canadian Controlled Drugs and Substances Act (CDSA), which enables the site to operate without fear of prosecution of service users or staff.

In the decision, Mr. Justice Pitfield posed the question 'Does the criminalization of the possession of controlled substances within the premises of the Vancouver Safe Injection Site violate s. 7 of the Charter of Rights and Freedoms?' [para 122] Section 7 of the Charter guarantees that 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.'

In reviewing the extensive scientific and medical evaluations showing the effectiveness of Insite, Mr. Justice Pitfield affirmed the importance of the heath and harm reduction framework in which Insite operates.

'Although those who inject at Insite are not using controlled substances as an antidote for an illness, they suffer from an illness and the need to obtain the substance by injection is a material part of the illness...While users do not use Insite to directly treat their addiction, they receive services and assistance at Insite which reduce the risk of overdose that is a feature of their illness, they avoid the risk of being infected or of infecting others by injection, and they gain access to counselling and consultation that may lead to abstinence and rehabilitation. All of this is health care.' [paras 135-136]

Furthermore, the Court found that attempts by the Canadian government to invoke the possession prohibitions under section 4(1) of the CDSA in the case of Insite were not above scrutiny under the the rights enshrined in the Canadian constitution.

'Section 4(1) of the CDSA, which prohibits injection within the confines of Insite, engages the right to life because it prevents healthier and safer injection where the risk of mortality resulting from overdose can be managed, and forces the user who is ill from addiction to resort to unhealthy and unsafe injection in an environment where there is a significant and measurable risk of morbidity or death...However unfortunate, damaging, inexplicable and personal the original choice may have been, the result is an illness called addiction. The failure to manage the addiction in all of its aspects may lead to death, whether from overdose or other illness resulting from unsafe injection practices. If the root cause of death derives from the illness of addiction, then a law that prevents access to health care services that can prevent death clearly engages the right to life.' [para 140]

'Section 4(1) of the CDSA threatens security of the person. It denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated. While it is popular to say that addiction is the result of choice and the pursuit of a liberty interest that should not be afforded Charter protection, an understanding of the nature and circumstances which result in addiction, as I have discussed elsewhere in these reasons, must lead to the opposite conclusion. Society cannot condone addiction, but in the face of its presence it cannot fail to manage it, hopefully with ultimate success reflected in the cure of the addicted individual and abstinence.' [para 144]

The Court also found that harm reduction programmes such as that provided by Insite were a responsible approach to addressing drug use and reducing drug related harms.

'Denial of access to Insite and safe injection for the reason stated by Canada, amounts to a condemnation of the consumption that led to addiction in the first place, while ignoring the resulting illness. While there is nothing to be said in favour of the injection of controlled substances that leads to addiction, there is much to be said against denying addicts health care services that will ameliorate the effects of their condition. Society does that for other substances such as alcohol and tobacco. While those are not prohibited substances, society neither condemns the individual who chose to drink or smoke to excess, nor deprives that individual of a range of health care services. Management of the harm in those cases is accepted as a community responsibility. I cannot see any rational or logical reason why the approach should be different when dealing with the addiction to narcotics, an aspect of which is that the substance that resulted in the addiction in the first place will invariably be ingested in the short-term, and possibly in the long-term, because of the very nature of the illness. Simply stated, I cannot agree with the Canada’s submission that an addict must feed his addiction in an unsafe environment when a safe environment that may lead to rehabilitation is the alternative.' [para 146]

In the face of these concerns, and the evidence of effectiveness of Insite, Mr. Justice Pitfield found that the CDSA could not be used to violate rights enshrined under the Charter.

'In my opinion, s. 4(1) of the CDSA, which applies to possession for every purpose without discrimination or differentiation in its effect, is arbitrary. In particular it prohibits the management of addiction and its associated risks at Insite. It treats all consumption of controlled substances, whether addictive or not, and whether by an addict or not, in the same manner. Instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributes to the very harm it seeks to prevent. It is inconsistent with the state’s interest in fostering individual and community health, and preventing death and disease. That is enough to compel the conclusion that s. 4(1), as it applies to Insite, is arbitrary and not in accord with the principles of fundamental justice. If not arbitrary, then by the same analysis, s. 4(1) is grossly disproportionate or overbroad in its application.' [para 152]

The decision concluded by declaring 'that ss. 4(1) and 5(1) of the CDSA are inconsistent with s. 7 of the Charter, and of no force and effect' in the case on Insite and 'grant[s] users and staff at Insite, acting in conformity with the operating protocol now in effect, a constitutional exemption from the application of ss. 4(1) and 5(1) of the CDSA.' [paras 158-159]

According the Canada's Globe & Mail newspaper, 'A spokesman for Mr. Clement said the federal Health Minister is studying the decision and would have no immediate comment.'

UPDATE 29 May: It has been reported in the Canadian press that the Canadian government will appeal the decision.

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