Vancouver, British Columbia consistently ranks as one of the most livable cities in the world. However, its Downtown Eastside (DTES) community of approximately 18,000 crammed into a few square blocks of social housing units, derelict buildings and temporary shelters – all in the shadow of an affluent downtown – is a glaring exception to livability.
Some 260 different agencies in the DTES offer programs and services. One such agency is the Portland Hotel Society (PHS) which manages social housing units for the provincial government. PHS also manages Insite, North America’s first legal supervised injection site for illegal drugs.
Insite was established in 2003 as an experimental pilot project by health authorities to contain the spread of HIV and Hepatitis C, which had been an epidemic in the DTES throughout the 1990’s. Insite became the flagship component of a comprehensive harm reduction strategy to tackle addictions.
Harm reduction is controversial. It provides clean needles to reduce harm from illegal drug use. Harm reduction strives to engage with drug addicts, keep them alive, offer treatment options when they confront their addiction and reduce the spread of disease. The federal government exempted Insite from the application of the Controlled Drugs and Substances Act. Staff and users of Insite were not subject to trafficking and possession laws.
By 2008, the Conservative government, elected on a law and order mandate, no longer supported harm reduction. When the exemption came up for renewal, the federal government decided not to continue with the experiment.
The Supreme Court of Canada clearly preferred the injection site once it had been launched as an experiment.A court battle ensued between PHS, the provincial government and social advocates on one side and the federal government on the other side. It ended in 2011 at the Supreme Court of Canada in Canada v PHS Community Services Society. Could the federal government shut down the supervised drug injection, a health care facility, on constitutional grounds?
Federal or Provincial Authority?
The federal government has constitutional authority to create crimes around dangerous drugs, but the province also claimed authority over delivery of health care services. Under the doctrine of Inter-jurisdictional Immunity, the federal government was held to be immune from provincial health laws which interfered with the ability of the federal government to enact and enforce drug crimes.
Charter of Rights and Freedoms
PHS argued that drug addicts had a Charter right to the safe injection site, namely under the section 7 “right to life, liberty and security of the person” which can be denied only “in accordance with the principles of fundamental justice.”
PHS said that drug trafficking and possession laws block access to medical treatment. Clients are forced to break the law in order to receive the medical services of Insite. This violates the Charter, section 7.
Harm reduction strives to engage with drug addicts, keep them alive, offer treatment options when they confront their addiction and reduce the spread of disease. The Supreme Court of Canada, after a convoluted analysis, determined the application of federal drug laws at Insite to be a violation of “life, liberty and security of the person.” However, the Controlled Drugs and Substances Act which prohibits the possession of illegal drugs, also allows the Minister of Health to exempt application of those laws if an exemption is necessary for medical or scientific purposes.
The courts should not lightly interfere with Ministerial discretion. Judges should show deference to Ministerial discretion where there is greater expertise and appreciation for the impact of such decisions within the broader context area of their governance responsibilities.
In practice, however, Ministerial discretion is not entirely immune from judicial review and as with any government decision, it must be made in accordance with law and, in particular, section 7 of the Charter. The Supreme Court said the Minister of Health denial of the exemption was contrary to the principles of fundamental justice. The Court concluded the Minister really did not have any discretion at all.
In a highly unusual and controversial stroke, the Supreme Court of Canada ordered the Minister of Health to renew the exemption. It is not clear what principles bind the Court but restraint is not foremost among them.
In the end, the Supreme Court of Canada did not rule on the constitutionally of harm reduction programs, trafficking and possession laws, or supervised drug injection sites. The Court ruled the Minister of Health violated section 7 of the Charter, by failing to renew the Insite Controlled Drugs and Substances Act exemption. Evidence at the time showed that Insite was saving lives and its operations did not have a negative impact on public safety. The facility was doing more good than harm.
Each exemption is temporary. The Minister can exercise her discretion again by balancing public health and public safety – until the Court disagrees.
Critics argue that the PHS decision comprised less a legal solution than a second-guessing of executive government policy making. The Supreme Court of Canada clearly preferred the injection site once it had been launched as an experiment. The decision demonstrates how difficult it can be for governments to enact policy and implement policy changes in the face of the Charter.
Policies for the treatment of addictions are among the major challenges of our day. The current federal government has extended these exemptions across many Canadian cities. Time will tell whether the policy of accommodating addictions will ultimately reduce them and their harm.