It has been interesting to observe the fallout from the recent Supreme Court of Canada (SCC) decision which allows Insite, Vancouver’s largest supervised injection facility (SIF), to remain in operation.
In essence, the SCC found that the rights of the clients and staff of Insite to Insite outweigh any salutory effects arresting them for drug possession at Insite might have.
As the SCC put it:
… the effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.
The court rejected the argument that Insite is a health facility under provincial rather than federal jurisdiction, but they agreed that, in this case, the Controlled Drugs and Subtances Act (CDSA) infringes on Charter rights.
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.
Several lower courts have found that the CDSA infringes on the rights of medicinal cannabis users, and have struck down sections of the CDSA as unconstitutional, giving parliament a period of time to correct the problem. But in the case of Insite, the SCC instead insisted that the Minister of Health exercise their authority to grant an exemption from the CDSA as described in section 56, which they called a “safety valve” for unusual situations such as Insite.
The Minister 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 this 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.
In the case of medicinal cannabis, the court rejected the sec. 56 solution, considering it too arbitrary. For example, in the R. v Parker appeal they wrote:
Section 56 also gives the Minister the power to impose “such terms and conditions” as he deems necessary. It would thus be possible for a Minister of Health to impose conditions that would make the exemption illusory.
However, in the Insite case, the SCC overcame the arbitrary nature of the sec. 56 exemption scheme by defining the conditions under which the Minister of Health is compelled by the Charter to grant an exemption.
The dual purposes of the CDSA – public health and public safety – provide some guidance to the Minister. Where the Minister is considering an application for exemption for a supervised injection facility, he or she will aim to strike the appropriate balance between achieving the public health and public safety goals. 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.
The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to 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, on the impact of such a facility on crime rates, the local conditions indicating a need for such supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.
One might suppose that evidence from Insite and other SIFs around the world would be sufficient to compel the courts to insist that the Minister of Health grant an exemption for other SIFs across Canada. However, the conditions the SCC defined are specific to the downtown eastside of Vancouver, where Insite is located, and are difficult to achieve.
For example, Insite did not have the support of local business owners until it had been in operation for several years, allowing the business community to see the benefits for themselves. Nor did Insite begin with evidence that it would decrease the risk of death and disease, nor evidence that it would not have a negative impact on public safety.
The evidence in support of Insite was gathered over several years of operation. In other words, it would appear that to get an exemption to open, one must have already obtained an exemption to operate for several years, as was the case with Insite.
Nonetheless, harm reduction service providers in several Canadian cities are interpreting the SCC decision as a green light to begin the process of opening SIFs. For example, the media reports that “Safe injection sites for heroin addicts and other IV drug users will likely open in Montreal and Quebec City next year.” Columnist Dan Gardner did a masterful job of analyzing the opposition of the mayor and police chief of Ottawa to a proposed SIF in the nation’s capital.
[Police chief] Vern White is sure that supervised injection sites ruin neighbourhoods because he felt less safe in the neighbourhood where Insite is located than he did in other parts of Vancouver. Other cops feel the same, he said.
I agree, incidentally. I’ve been to that neighbourhood many times. It’s not a pleasant place.
But this proves precisely nothing. That neighbourhood was riddled with addiction, disease, and crime long before Insite opened its doors. In fact, Insite was put there because it was riddled with addiction, disease, and crime. Blaming Insite because the neighbourhood is dodgy is as silly as saying “wet streets cause rain.” Vern White should be embarrassed.
Opponents of Insite have also interpreted the SCC decision as a green light for “shooting galleries” across Canada, and worse, as an SCC endorsement of injecting illegal drugs. For example, REAL Women of Canada (RWC), one of the intervenors in the case, reacted this way:
The Supreme Court of Canada in its decision handed down today on the legality of the Vancouver drug injection site, has arrogantly decided that it is more capable of determining Canada’s national drug policy than the elected government.
It has ordered the Minister of Health to continue the operation of this controversial drug injection site, even though, under the Controlled Drug and Substances Act (CDSA), this is supposed to be a matter for the Minister’s discretion.
In its judgment, the court talks on both sides of its mouth by claiming it is not interfering with the exercise of ministerial discretion but then goes on to state that the Minister must grant the exemption not only for the Vancouver site, but also generally for all other applicants for drug injection sites in the country, on the grounds, that to do otherwise, would deprive [addicts] of their “life and security of person” under Section 7 of the Charter.
The Supreme Court gave as its reasons to exempt the drug injection site from the provisions of the CDSA the fact that it supposedly “saves the lives and health” of drug addicts.
This is highly questionable since this conclusion is based on the flawed research provided by a group of advocates and promoters of the Vancouver drug injection site who have a conflict of interest in this research, since they were also the lobbyist and advocates for the establishment of the drug injection site over a decade ago.
REAL Women of Canada recently attempted to question the “highly questionable” peer-reviewed research published in the world’s leading medical journals by commissioning Dr. Colin Mangham of the Drug Prevention Network of Canada (DPNOC), Dr. Robert Dupont, the former director of the US National Institute of Drug Abuse (NIDA), and like-minded prohibitionist researchers from Drug Free Australia, to find fault with one of the most recent studies supporting Insite. Their “critique,” entitled “Analysis of the 2011 Lancet study on deaths from overdose in the vicinity of Vancouver’s Insite Supervised Injection Facility,” is available on the web site of Drug Free Australia.
A complaint about the Lancet study was also filed with the University of British Columbia, who oversee the BC Centre for Excellence in HIV/AIDS who conducted The Lancet study.
Dr. Evan Wood, an internal medicine specialist at St. Paul’s Hospital and coauthor of The Lancet study, briefly responded to the “critique” by saying “Many of the queries, questions and concerns are inaccurate,” adding that the analysis didn’t properly account for population increases or the location of deaths identified in The Lancet article.
Readers may recall that Dr. Colin Mangham “published” an earlier critique of Insite research on behalf of the RCMP in the Drug Free America Foundation’s so-called “Journal of Global Drug Policy and Practice.”
This first effort to cast doubt on the peer-reviewed research supporting Insite was aptly described as “odious” by Peter McKnight of the Vancouver Sun. The more recent critique of the study published in The Lancet is of a similar caliber.
All the same, DPNOC/RWC has inspired several Canadian columnists to champion their effort, some asserting that the SCC erred in accepting the Lancet study into evidence.
Some insight into Insite – the data don’t hold up / by Susan Martinuk
The Supreme Court used flawed data to make its Insite decision / by Barbara Kay
As it happens, the Lancet study was not entered into evidence because it was published after the B.C. Supreme Court and Court of Appeal heard the case, and therefore, theoretically, was not taken into consideration by the SCC in their decision.
Several opinion writers, and interested Canadians availing themselves of commenting systems on newspaper web sites, have accused the SCC of being liberal “activists.”
As John Moore of the National Post predicted:
Having been thumped by The Supremes, the more hard-headed of Insite’s opponents will retreat to the very last trench and argue that liberal dominated courts overruled the will of Parliament. That it is the job of the courts to strike down overweening legislation and that the judgment was unanimous (including two Harper appointed justices) won’t make a difference.
As explained above, the SCC made a rather “conservative” and unobtrusive decision, merely insisting that the law, the CDSA and Charter, be enforced as intended and written. It was almost as those they anticipated the backlash, but were nonetheless unable to prevent it.
Reading the criticisms of Insite, and harm reduction in general, both before and after the SCC rendered their decision, one may notice that critics attempt to create a false dichotomy between harm reduction and treatment. For example, Barbara Kay writes:
Those who argue for Insite believe that its governing philosophy of “harm reduction” for what they regard as an incurable affliction, is both ethical and efficacious in reducing disease and deaths. Opposed to Insite are those who support what one might call the “moral agency” model. This redemptive perspective, which favours pro-active strategies of treatment and prevention, has the support of the federal government, which has tried to close Insite down since 2006.
Of course, no proponent of harm reduction would argue that addiction is incurable. One need only to have quit smoking, or know a former smoker, to see that addictions can be overcome.
Susan Martinuk describes harm reduction proponents as those who favour allowing addicts to “shoot themselves into pharmaceutical oblivion on the taxpayers’ dollar,” as opposed to harm reduction critics like herself who “think society has a moral responsibility to help addicts by providing them with a second chance at life and a way out of addiction.”
This tactic of placing harm reduction in opposition to prevention and treatment is understandable. Who would not agree that addicts deserve a second chance at life and a way out of addiction, save those who think all illicit drug users deserve a prison cell, an infectious disease and/or a fatal overdose?
With respect to taxes, it is important to note that Insite is provincially, not federally funded, and that Insite is supported by a majority of British Columbian taxpayers.
What the critics of Insite overlook is that Insite increases uptake into detox, rehab and treatment, and in fact shares a building with a detox facility called “Onsite,” where Insite clients are referred. Far from being mutually exclusive, the evidence is quite clear that harm reduction, prevention and treatment are complimentary. Among other things, Insite has raised public awareness of the harm it attempts to reduce.
Critics also overlook that Insite more than pays for itself in reduced downstream social costs, in stark contrast to the law enforcement “pillar” of drug control, which unaccountably soaks up about 70 per cent of our drug control budget vs. about 2 per cent for harm reduction, discourages addicts from seeking treatment, increases downstream social costs and lacks any evidence whatsoever, questionable or otherwise, that it benefits anyone, excepting drug dealers and drug warriors.
One would think that if the critics of Insite were sincerely of the opinion that prevention and treatment are underfunded, that they would be calling for the reallocation of resources dedicated to law enforcement, perhaps 2 per cent. One might imagine that their relatively recent interest in evidence-based drug policies would cause them to commission critiques of the CDSA. However, the Media Awareness Project drugnews archive makes it easy to confirm that none of the columnists have been the least bit critical of law enforcement, nor have they advocated prevention and treatment except as an alternative to harm reduction.