Promoting a Flourishing Society

LexView 74.0 - Can Injecting Illegal Drugs Ever Be Safe?

From the Archived "LexView" Series

October 26, 2011

On September 30, the Supreme Court of Canada ordered the federal government to keep open the doors of a controversial "safe" injection site for drug addicts on Vancouver's tragic Downtown Eastside. It was an order LexView writer Kevin Boonstra says represents a serious error in judicial logic. There's no question, Boonstra agrees, that something must be done to help addicts in the deeply troubled neighbourhood. At the same time, it's dubious to claim the Insite facility is, in fact, safe. And the high court accepted a dangerous false dichotomy in its finding that the government could only allow Insite to remain open—or refuse health care to addicts. The SCC's decision took a narrow view on an issue of complex health and criminal law policy.

Canada (Attorney General) v. PHS Community Services Society
2011 SCC 44
Supreme Court of Canada

Date of Decision: September 30, 2011
Date of Issue: October 26, 2011

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary
    1. Requiring Another Treatment Option is not Arbitrary
    2. It is Not Only a Health Care Issue
    3. The Remedy

Key Terms:

Division of powers; criminal law; Controlled Drugs and Substances Act; possession; trafficking; illegal drugs; safe injection site; harm reduction; exemption; life, liberty and security of the person; section 7; Charter of Rights and Freedoms; arbitrariness; grossly disproportionate; mandamus

Summary of Facts:

The Insite injection site opened in 2003 in the downtown eastside of Vancouver ("DTES"). It allows intravenous drug users to bring illegally obtained drugs into a supervised facility and inject them under medical supervision. Insite was only possible through the cooperation of the local, provincial and federal authorities.

The Controlled Drugs and Substances Act ("CDSA") prohibits the possession and trafficking of illegal drugs. It also allows the federal Minister of Health to provide an exemption from these prohibitions for medical or scientific purposes or otherwise when it is in the public interest to do so. Health Canada provided a conditional exemption in September of 2003 to allow Insite to begin operating as a pilot project.

Insite opened on September 21, 2003, staffed by a combination of PHS Community Services Society, Vancouver Coastal Health Authority and community workers. It is treated as a medical facility.

Vancouver's DTES is one of the poorest areas in Canada. It is estimated to have 4,600 intravenous drug users in a very small area, stretching only a few blocks in each direction from the intersection of Main and Hastings Streets. Some of these drug users have been addicted for decades. Many use and abuse multiple substances and suffer from alcoholism. Some engage in street level sex work.

As noted by the courts, the living conditions in the DTES would shock many Canadians. Many people live in squalid condition and in single room occupancy hotels. There is a high rate of homelessness, hepatitis C infection and HIV infection. To quote the Supreme Court of Canada: "Existence is bleak."

The trial judge made some key factual findings that informed the Court's decision: (a) addiction is a disease and results in the continuing need and craving to consume the substance to which one is addicted; (b) unsanitary equipment and practices used to inject illegal drugs cause infections, including hepatitis C and HIV; and (c) the risk of morbidity and mortality associated with addiction and injection drug use is ameliorated by injecting drugs in the presence of professionally qualified health personnel.

Insite does not provide drugs to its clients. They illegally obtain them on the street and then go to Insite to inject them.

In 2008, the federal exemption for Insite under the CDSA expired and the Minister of Health took no action to extend it. The litigation was commenced by DTES drug users, PHS Community Services Society and the Vancouver Area Network of Drug Users ("VANDU") to keep Insite open. The Attorney General of BC supported Insite.

Significant Issues:

The main question in the litigation was whether Insite was exempt from federal criminal laws that prohibit the possession and trafficking of controlled substances. The litigants argued that:

  1. the provisions of the CDSA exceed Parliament's authority when they prohibit the use of drugs in provincially regulated medical facilities;
  2. the provisions of the CDSA should not apply to a provincial health facility;
  3. the provisions of the CDSA are invalid as breaching s.7 of the Charter of Rights and Freedoms, which guarantees life, liberty, and security of the person and that people will not be deprived of them except in accordance with the principles of fundamental justice; and
  4. s.7 rights were infringed when the Minister of Health failed to extend the exemption.

Additionally, VANDU argued that the CDSA prohibition on possession of drugs limits the s.7 rights of drug addicts anywhere, not just at Insite.

While the arguments surrounding federalism and the division of powers between the provincial and federal governments are interesting, the focus of the Court's decision, and its decision, was on the Charter arguments.

Decision and the Court's Reasons:

In a unanimous decision, the Court rejected the arguments that the federal government did not validly pass the provisions of the CDSA and held that they do apply to Insite under the federal criminal law power. The provisions of the CDSA were validly passed to suppress the availability of drugs that have a harmful effect on human health. The protection of public health and safety from the effects of addictive drugs is a legitimate criminal purpose.

The Court concluded that without an exemption under s.56, the provision of the CDSA prohibiting the possession of illegal drugs would apply to Insite staff because by operating the facility, they would be "in possession" over drugs brought in by addicts. In other words, Insite cannot operate without an exemption issued by the federal Minister of Health.

(The Court also held that the prohibition on trafficking is not applicable because those visiting Insite are not involved in trafficking.)

Chief Justice McLachlan, writing for the Court, held that the CDSA prohibition on possessing drugs at Insite limits the Charter rights of staff and users of Insite since it prevents "access to health care" and thereby "creates a risk to health," citing the Morgentaler decision.

The legislation itself survived the Charter challenge. The Court reiterated the purposes of the CDSA, being both public safety (prohibiting possession and trafficking of illegal drugs) and public health (averting the use of dangerous substances). The public health purpose was also advanced by the possibility of an exemption for medical and scientific purposes. The "availability of the exemption acts as a safety valve that prevents the CDSA from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects" (para. 114).

However, the Court held that the failure of the Minister of Health to extend the exemption to allow Insite to continue operating breached rights under s.7 of the Charter. The deprivation of liberty and security of the person was held to be arbitrary and result in grossly disproportionate effects. It was therefore held not to be in accordance with the principles of fundamental justice.

With respect to arbitrariness, the Justices focused on the facts that criminal law efforts had not reduced illegal drug use, the risks to addicts is reduced at Insite, and the presence of Insite did not increase crime rates or have other negative effects.

They held that the failure to grant an exemption was grossly disproportionate in its effects since "Insite saves lives," "its benefits have been proven," and "there has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation." The Court found that the Minister's decision to refuse the exemption bore no relation to the promotion of public health and safety.

The Court ordered that the Minister grant the exemption because it concluded that there is "nothing to be gained (and much to be risked) by sending the matter back to the Minister for reconsideration."

This decision expressly applies only to Insite. It does not automatically apply to other proposed injection sites and does not otherwise allow drug users to circumvent the provisions of the CDSA. However, the Court did caution the federal government that where the evidence shows that a supervised injection site will decrease the risk of death and disease without having a negative impact on public safety, "the Minister should generally grant an exemption."

LexView Commentary:

All criminal law poses a risk to the liberty of those who choose to flout it, in that criminals risk jail and other punishment. The question is whether such criminal law is imposed on the population in a manner that accords with the principles of fundamental justice. Criminal laws that are arbitrary, overbroad (given their legitimate criminal purposes) or have grossly disproportionate effects do not accord with the principles of fundamental justice and are liable to being found unconstitutional.

Insite is a viewed as a medical facility in which intravenous drug users can more safely inject illegally obtained drugs. There is no question that it was established in an attempt to alleviate suffering and reduce the spread of very serious and life threatening infectious diseases, such as HIV. The motivation for creating Insite is undoubtedly laudable.

Insite is also very controversial from moral and political perspectives. As recently confirmed by Chief Justice McLachlin, in addition to public safety and the preservation of health, morality is a legitimate criminal law purpose. The CDSA should be viewed as also having a moral purpose since addiction, in addition to being a recognized disease, denigrates and demoralizes drug users.

The morality of drug use can unfortunately become a secondary consideration when faced with a serious addiction. By the time an addiction sets in, the illegal drug user has broken the law so frequently that he or she is impaired in his or her ability to comply with it. In that sense, addiction is correctly considered a disease. However, it is not a disease for which there is no cure or one whose sufferers have no hope. If this were not so, there would be no recovering or former addicts.

As noted by the Supreme Court of Canada, there "is room for disagreement between reasonable people concerning how addiction should be treated." The treatment of addiction is complicated and requires careful consideration by the legislative and executive branches of our federal and provincial governments. With respect to Insite, the provincial and federal governments once agreed that Insite was a good way to attempt to deal with the serious problem of addiction in the DTES. However, the federal government altered its perspective in this regard, as it was entitled to. The Court's decision unwound the will of the government elected by Canadians.

There is no question that when exercising an executive function, such as determining whether to grant an exemption under the CDSA, the government must act in accordance with the Charter. The Court was right to confirm that the CDSA is valid criminal legislation.

However, it is not correct that a refusal to allow an exemption for drug addicts to continue injecting illegal substances in a controlled environment is arbitrary and has grossly disproportionate effects. The Minister's decision not to extend the exemption ought to have received some deference. The Minister did not, and is not required to, provide reasons for the exercise of his discretion under the CDSA. However, the Court's recognition of the fact that addiction is complex, and that reasonable people can disagree on the best programmes, is sufficient to infer that the Minister did not act maliciously or without due regard for the human suffering in the DTES.

While the Court found that "Insite saves lives," this is not the same thing as finding that no other programme to deal with addiction in the DTES would save an equal number of lives or create better opportunities for addicts to recover from their addictions. The provincial authorities chose Insite as one way, but required the federal government's agreement and cooperation. Once that agreement no longer existed, the province would be obligated to search out other options and programmes other than a supervised injection site. Such programmes could include other harm reduction strategies (such as providing sterile injection equipment) or abstinence or detox or other treatment programmes.

That is, the finding that the Minister's refusal or failure to extend the exemption prevents access to health care was based on the false premise that Insite is the only way to provide adequate health care services to those suffering from addiction to injectible drugs. It also focuses too narrowly on the health care aspects of providing a "safe" and supervised injection site, ignoring or at least minimizing the moral and criminal law components of a very difficult problem.

(a) Requiring Another Treatment Option is not Arbitrary

It is difficult to accept that Insite is truly a "safe" injection site. The act of injecting oneself with illegally obtained narcotics is inherently unsafe. No one checks the drugs or the dosage to ensure that it will not result in poisoning or an overdose. No doubt it is safer to inject illegal drugs in the presence of medical personnel who can assist in the event of an overdose, but it cannot be said to be "safe." That there have been hundreds of overdoses at Insite is testament to this fact.

Arbitrariness relates to whether the purposes of the CDSA are undermined or achieved by the Minister's decision. As noted by the Supreme Court in R. v. Malmo-Levine, [2003] 3 S.C.R. 571:

"The criminalization of possession is a statement of society's collective disapproval of the use of a psychoactive drug such as marihuana . . ., and, through Parliament, the continuing view that its use should be deterred. The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm. In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers." [para. 136]

To be arbitrary, the deprivation of a s.7 right has to bear no relation to, or be inconsistent with, the state interest behind the CDSA. The fact that Insite is one way to ameliorate some of the immediate risks of injecting illegal intravenous drugs and in that sense "saves lives," does not mean that refusing an exemption is inconsistent with deterring the use of addictive and illegal drugs. It is the exemption that allows drugs to be "in the hands of users and potential users" such that the potential harm is not prevented, and allows a continuing market for traffickers. The exemption in fact undermines the purposes of CDSA and its refusal in these circumstances is not arbitrary.

Further, having the knowledge that medical personnel will be present may create the wrong incentives for addicted drug users. They may actually become less careful for their own safety when purchasing or deciding to inject illegal drugs.

The CDSA is criminal law designed to prevent the possession and use of certain drugs, including those obtained by addicts and brought into Insite. It is not arbitrary to require compliance with this criminal law in the specific circumstances the CDSA aims to prevent, namely the purchase and use of harmful drugs, even by those addicted to them.

The Court accepted a false dichotomy: allow Insite or refuse access to health care. Its decision proceeded on the assumption that Insite is necessary for addicts to receive medical care. The Minister of Health did not prevent health care or addiction treatment. His decision compelled provincial health authorities to find a way to treat addiction that complies with the criminal law.

The same is true of the Court's finding that the Minister's decision has grossly disproportionate effects. The subtext is that the federal government is withholding health care and lacks compassion for those in the DTES who suffer from disease. That is an unfair conclusion based on the record as reported by the Court. As noted, reasonable people can disagree on the best treatment methods and responses to addiction.

It may be that other programs that comply with the CDSA may save an equal number, or in the longer term, more lives by preventing further addiction or treating addiction so that continued intravenous drug use is not necessary. In other words, it is just as reasonable to assume that the Minister of Health sought to protect health and human dignity by compelling the provincial authorities to focus on treating the addiction, not allowing it to continue in its destructive path. It cannot be said with certainty which route is preferable, but it also should not be assumed that the Minister failed to consider all aspects of this devastating problem and arbitrarily cancelled the only potentially successful program.

(b) It is Not Only a Health Care Issue

Insite's objectives are laudable, to say the least. Providing health services with an aim to preventing injury or death to extremely vulnerable people in one of the most devastatingly poor areas in all of North America is admirable. But the complex issue of addiction is not solely a health issue. If it were, the argument that the CDSA is constitutionally inapplicable to Insite or that the legislation itself breaches the Charter would have more traction.

People can only become addicts by breaking the criminal law. Once people become addicts, they have impaired their ability to resist continuing to break the law. Their use of drugs is the primary cause of death and disease; not the criminal law. In fact, the criminal law sought to prevent the addiction in the first place. In this context, the moral foundation of the criminal law, being the prevention of this devastation, seems sound.

But the moral issues become more complex once a person has acquired the disease of addiction. Some would insist that the addict should bear the consequences of his or her choices. Others would say that this is a callous response and demand that only treatment of the disease matters. Would it truly be a regression and a Dickensian response to human suffering to still insist that the criminal law be upheld?

This is a question of moral judgment, which is a legitimate realm of the criminal law and federal power under our constitution. It does not logically follow that addiction, including the impaired ability to resist using illegal drugs, removes all personal responsibility for continuing to break the law. If that were true, no one would be able to recover from addiction. The many recovering addicts who no longer use illegal narcotics are a testament to the power of personal choice. As a society, we have a responsibility to assist people in pursuing and accomplishing the choice to stop using addictive drugs.

But the issue is also not one only of the morality of using illegal addictive drugs. Insite raises a serious issue of moral hazard in that the facility potentially makes it easier for drug addicts to stay addicted and continue to flout the law. It may also decrease the care that they take when deciding when and whether to continue injecting themselves with drugs. Their choice to continue in their addiction should not be assumed to be inevitable.

While addicts are victims in one sense, they can still be held accountable for their choices. The Court summarily rejected all arguments that negative health risks suffered by drug users if Insite were closed are primarily the consequence of their decision to use drugs.

The problem is not simple enough to allow a clear answer to the question of whether the health risks are caused by the addiction or the lack of a "safe" injection site. It is undoubtedly both. The legal question is whether the federal government is constitutionally compelled to exempt Insite from the criminal law.

The only bases upon which the Court found that the government was so compelled was its conclusions that the Minister of Health acted arbitrarily and with disproportionately negative effects. If Insite were needed because of no failing on the part of the addicts, and if there were no other potential way to keep them alive to allow them to exercise their choice to be treated and become free from their addictions, these conclusions might be inevitable. The complexity of the problem and the moral and public health issues involved means that this is not so.

(c) The Remedy

The normal remedy when a court quashes the decision of an administrative decision maker is to send the matter back to be reconsidered in accordance with the court's reasons. For example, when the Supreme Court of Canada disagreed with the basis upon which the Surrey School Board rejected approval of three books depicting same sex couples, it quashed their decision and sent it back so the Board could reconsider the matter.

Conversely, when the Supreme Court of Canada concluded that there would be not any purpose in allowing the B.C. College of Teachers to reconsider Trinity Western University's application for approval of its teacher education program, it made an order compelling approval.

The difference between the Trinity Western decision and this one is that the Minister of Health did not issue any reasons for his decision not to extend Insite's CDSA exemption. Given the complexity of the issues involved, this would have been an appropriate case to send the matter back to the Minister for reconsideration. The fact that the Court did not do so implies that, in its view, any refusal to exempt Insite from the CDSA, regardless of the rationale, would be arbitrary and lead to grossly disproportionate effects. In other words, the Court concluded that Insite must continue so long as the province and community organizations are prepared to run it.

The Court did indicate that if circumstances change, the Minister might be allowed to revisit the exemption. This means that the onus falls to the Minister to establish sufficiently changed circumstances at Insite before the exemption can be withdrawn. The Minister would have to show that Insite causes more immediate harm than good. Having removed the arguments over whether Insite is a good idea for the treatment of addiction in the long term, it is difficult to foresee how the Minister still enjoys any meaningful discretion under the CDSA with respect to Insite.

While this decision is directed only at Insite and the specific circumstances of the human suffering in the DTES, the Court also directed that exemptions should generally be granted by the Minister when a supervised injection site will decrease the risk of death and disease without having a negative impact on public safety. In these circumstances, it is difficult to see how the Minister can ever refuse to exempt an injection site modelled on Insite.

This result arises directly from the Court's perspective on how to decrease the risk of death and disease. It took a narrow view of the problem in that the symptoms of the disease of addiction must be dealt with in a specific fashion, without regard to the broader social and moral impacts. In this regard, its decision is one of complex health and criminal law policy.

The Minister may simply believe that Insite will prolong addiction and the suffering in the DTES; which would be relevant to deciding whether an exemption should be granted. This perspective could be both true and unprovable. As a result of the Court's decision, we may never know.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), J.D., of the British Columbia Bar.

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Copyright © 2011 Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.

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