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Insight into Insite:The court case in context and its implications

11th Alberta Harm Reduction ConferenceEdmonton, 2 June 2011

Richard ElliottCanadian HIV/AIDS Legal Network

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Harm reduction and CDSA flexibility

Controlled Drugs and Substances Act• section 4(1) prohibits unauthorized possession• section 5(1) prohibits trafficking

CDSA section 56 allows broad ministerial exemptions: “The Minister [of Health] may, on such terms and conditions as

the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of the Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.”

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A “vulnerable population”: both a medical purpose and a public interest

Health Minister’s EAC on Supervised Injection Sites (March 2008): of approximately 1,000 people who use drugs surveyed in the DTES:

average length of injection history is 15 years majority (51%) inject heroin and many (32%) inject cocaine 87% have Hepatitis C and 17% have HIV 18% are aboriginal 20% are homeless and many more live in single resident rooms 80% have been incarcerated 38% are involved in the sex trade 21% are using methadone 59% reported a non-fatal overdose in their lifetime

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Insite’s CDSA exemption

CDSA s. 56 exemption, issued on basis of necessity for scientific purpose, meant that within Insite:

• people using site are not liable for prosecution for possession • staff members are not liable for trafficking

1st exemption: 3 years (Sep 12, 2003 – Sep 12, 2006) Sep 1, 2006: exemption extended to Dec 31, 2007 Oct 4, 2007: exemption extended again to Jun 30, 2008 (to allow

for EAC’s report)

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Insite: the goals (VCHA)• provide a hygienic facility for injection drug users to inject their drugs under the

supervision of a health care professional;• reduce the risk of overdose and the number of overdose deaths in the DTES;• reduce the number of ambulance calls to the DTES for overdose;• reduce the transmission of blood-borne pathogens including HIV and Hepatitis C;• reduce the incidents of potentially serious infections leading to conditions such as

endocarditis and osteomyelitis;• reduce the incidence of soft tissue injuries associated with [Injection Drug Use],

including abscesses and cellulitis;• provide access to needle exchange and sterile injecting equipment;• provide referrals to other health and social service providers in the area;• connect participants with peer support services and increase opportunities for

health and social networking;• increase public order; and• increase safety and security for the community.

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Insite: the evidence

1. Site is being used by intended beneficiaries (most at risk, public injectors)2. Has reduced HIV risk behaviour (including syringe-sharing)3. Has led to increased uptake of addiction treatment service4. Has improved public order5. Reduces risk of overdose and of overdose being fatal (e.g., 35%

reduction in overdose rates within 500m of facility)6. Provides safety for women who inject drugs7. Increases access to medical care for injection-related infections8. Does not lead to increased drug use or increased crime9. Is cost-effective (just considering effects re HIV and overdose death)10.Supported by police and other community stakeholders

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Insite and the federal government

early 2006: Insite evaluators invited to prepare scientific protocol for continued evaluation for another 3.5 years submitted May 2006 exceptionally strong reviews with recommendation to continue supporting evaluation

Protests during AIDS conference (Aug 2006, Toronto) Aug 28, 2006: RCMP speaks out against Insite Sep 1, 2006: Canadian Police Association calls for closure of Insite;

Health Minister Tony Clement issues release:- dismisses research evidence to date, says “new questions” raised- but refuses application to extend exemption and research for 3.5 years- and declares moratorium on any applications for other SIFs

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Insite and the federal government

Apr 2007: HC issues RFP for additional research for Expert Advisory Committee (EAC)

Oct 4, 2007: Health Minister Tony Clement confirms government will extend exemption again (to Jun 30, 2008) (allows EAC to report)

March 2008: EAC’s report released (see above)

May 27, 2008: BC trial judge grants exemption to Insite, strikes down CDSA sections as unconstitutional

22 Aug 2008 @ International AIDS Conference (Mexico City):“Insite is an abomination, and you can put that on YouTube!” Tony Clement, then Minister of Health

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Insite and the federal government Refusal (in Aug 2006) to even consider applications for exemptions for

additional SIFs is legally dubious (i.e., improperly fettering his discretion in advance) and a dereliction of duty as Minister of Health

2 human rights concerns, borne out by subsequent government action and broader pattern of conduct:

• duty under international law (e.g., ICESCR) to (1) take steps to realize for everyone the highest attainable standard of health, including steps to prevent epidemics and to “assure to all medical service and medical attention in the event of sickness”, and (2) avoid any deliberately retrogressive measures

• systemic discrimination against people who use drugs, disadvantaging those already vulnerable (including because of criminalization)

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2 court proceedings

• Common claims by VANDU and PHS et al:• Provincial legislative jurisdiction over health care (e.g., Insite)

immune from interference by federal government through its jurisdiction to make criminal law.

• CDSA sections violate Charter section 7.

• Additional claims by VANDU (dismissed)• Staff at Insite not committing any offences contrary to CDSA and

hence no exemption necessary.• CDSA s. 56 is unconstitutional in granting Health Minister

unfettered discretion to grant exemptions from CDSA based on no standards or criteria.

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1. Jurisdictional issue Constitution Act:

• health care is a provincial undertaking: s. 92(16)• criminal law is within federal powers: s. 91(27) (e.g., CDSA)

Application of CDSA prohibitions on possession and trafficking “materially intrudes” on a provincial undertaking (health care)

PHS claim: doctrine of “interjurisdictional immunity” applies to protect Insite from this intrusion and makes CDSA sections inapplicable to Insite users and staff (receipt and delivery of health care)

Proposed remedy: “read down” CDSA as not applying to Insite’s users and staff

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Insite is health care:judge’s “incontrovertible conclusions”• “Addiction is an illness. One aspect of the illness is the continuing

need or craving to consume the substance to which the addiction relates.”

• “Controlled substances such as heroin and cocaine that are introduced into the bloodstream do not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment, techniques, and procedures for injection permits the transmission of those infections, illnesses or diseases from one individual to another.”

• “The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.”

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Federal vs. provincial jurisdiction

• Because legislation may touch on matters that cross jurisdictional lines, court must determine the “pith and substance” of the legislation:

determine its “dominant purpose” incidental intrusions into authority of other level of government

do not mean the law is beyond power of the enacting gov’t

• Some laws have a “double aspect” both federal Parliament and provincial legislature may legislate on different aspects, within their spheres of authority

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Federal vs. provincial jurisdiction

• “The question then is whether the purpose and object of Insite are immune from the reach of criminal law because of interjurisdictional immunity, or whether, because the provincial policy conflicts with a federal power, the federal law will prevail because of the doctrine of paramountcy.”

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Federal vs. provincial jurisdiction

• Plaintiffs: providing effective and responsible health care to local populations is part of the “basic minimum and unassailable content” of provincial power over delivery of health care; “turning injection drug users away from the health care door intrudes upon the province’s core responsibility”

• Fed gov’t: Parliament has compelling state interest in prohibiting injection of controlled substances, partly because of harms to individual and community health; criminalizing injection has only an incidental effect on provincial domain of health care; permitting Insite to continue “will create a safe haven from the criminal law and undermine its national objective and importance”

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Federal vs. provincial jurisdiction• Court: this is a case of “double aspect”

federal power to legislate in area of criminal law (which indirectly controls injection) has incidental effect upon a “vital part” of provincial health care undertaking

CDSA prohibits possession in all circumstances Provincial facility permits possession contrary to CDSA

Where there is a “double aspect”, doctrine of federal paramountcy applies (i.e., criminal law prevails):

“…the Province has no capacity to override the criminal law by creating an environment in which individuals can conduct themselves free of its constraints.”

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BC Court of Appeal• overrules trial judge on jurisdictional issue, finding instead in favour

of province and Insite

• “Insite is a provincial undertaking. It is a health care facility created under and regulated by provincial legislation within the province’s exclusive power…. It would be difficult to envisage anything more at the core of a hospital’s purpose, than the determination of the nature of the services it provides to the community it serves. Indeed, it would be difficult to envisage anything more at the core of the province’s general jurisdiction over health care than decisions about the nature of the services it will provide.”

Justice Huddart (for majority)

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2. Charter issues

Charter s. 7: right to life, liberty and security of the person, and the right not to be deprived thereof except in accord with principles of fundamental justice

“While users do not use Insite directly to 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.”

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Right to life

Court: CDSA s. 4(1) (possession), “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.”

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Right to life

“With respect, the subject with which these actions are concerned has moved beyond the question of choice to consume in the first instance.  As I have said elsewhere in these reasons, the original personal decision to inject narcotics arose from a variety of circumstances, some of which commend themselves to choice, while others do not.  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.”

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Right to security of the person

“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…..”

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Right to security of the person

“[T]here 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 services…. Simply stated, I cannot agree with 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.”

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“Fundamental justice” Court: even if we accept Crown’s arguments about compelling

state objectives underlying CDSA, the law is still arbitrary

“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.”  

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Justification?

Charter s. 1: reasonable limit on rights in a free and democratic society

“The principles of fundamental justice are among the most important in society. Any law that offends them will not ordinarily be saved by s. 1… Given what is at stake, the present case is no exception.”

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BC Court of Appeal (15 January 2010)

• Decided case on jurisdictional grounds (see above)

• But majority also expressed agreement with the trial judge’s reasons on the Charter arguments:

• “The effect of the application of the CDSA provisions to Insite would deny persons with a very serious and chronic illness access to necessary health care and would come without any ameliorating benefit to those persons or to society at large.” (Justice Rowles)

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Trial court’s order and status quo CDSA ss. 4(1) and 5(1) are inconsistent with the Charter and of

no force and effect

But this declaration of constitutional invalidity suspended until June 30, 2009

In interim, court granted Insite staff and users, acting in conformity with current operating protocol, a constitutional exemption from ss. 4(1) and 5(1)

Pending appeals, parties have agreed that Insite’s exemption and the court’s suspension of declaration of invalidity of the CDSA sections will continue until there is a final outcome

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Supreme Court of CanadaINTERVENERS (at hearing on May 12, 2011):•  Dr. Peter AIDS Foundation• Vancouver Coastal Health Authority• British Columbia Civil Liberties Association• Canadian Civil Liberties Association• Canadian HIV/AIDS Legal Network, International Harm Reduction Association

and CACTUS Montréal• Canadian Nurses Association, Registered Nurses' Association of Ontario and

Association of Registered Nurses of British Columbia• Canadian Public Health Association• Canadian Medical Association• British Columbia Nurses' Union• Attorney General of Quebec• REAL Women Canada (against Insite)

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Insite: reflections and implications Critical importance of scientific evidence when illustrating

irrationality and arbitrariness of the law

Provincial jurisdiction argument Arguably over-reaches in dismissing federal legislative authority Likely a double-edged sword

Human rights (Charter) grounds for decision are preferable Clear focus on human rights of people who use drugs Nationally applicable, to all governments

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Implications of Insite:

Beyond Insite

A clear health challenge to the “war on drugs”: when and how far must the criminal law approach to drugs bend or give way when it contributes to disease and death?

Depending on remedy adopted, SCC judgment could have application in other contexts in which criminal prohibitions on possession and trafficking (?) impede access to health services for people with addictions

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“Without the support of agencies and facilities that promote harm reduction, many of us would no longer be alive, or as healthy as we are…. Insite has proven beyond all means and measures that it helps save lives, that people have maintained a healthier lifestyle, [that it has] helped prevent blood borne pathogens, and [that it] is a valuable harm reduction agency.

Insite is more than a safe injection facility where people are allowed to come in off the streets and inject themselves – it is a place where people are treated with dignity, respect, and as a worthwhile human being.”

- Rosemary Fayant, President, AAWEAR in a letter (Feb 22, 2011) to the Hon. Leona Aglukkaq (Minister of Health) and Hon. Rob Nicholson (Minister of Justice)

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