The Supreme Court of Canada has opened the door to supervised drug injection clinics across the country in a landmark decision on Friday that ordered the federal government to stop interfering with Vancouver’s controversial Insite clinic.
The Court was persuaded by evidence that drug addicts are considerably safer administering their own injections under medical surveillance rather than obtaining and injecting hard drugs on the streets of the city’s troubled Downtown Eastside.
In its 9-0 decision, it said the federal government has the jurisdictional right to use criminal law to restrict illicit-drug use – but that the concerns it cited in an attempt to close Insite were “grossly disproportionate” to the benefits for drug users and the community.
“During its eight years of operation, Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada,” the Court said. “The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”
In ordering the Harper government to exempt the clinic from prosecution for its activities, the Court said that the government cannot simply close down clinics based on its own distaste for legally sanctioned drug injections.
It said that the consequences of interrupting the work of the clinic could have such “grave consequences” that only a direct court order can be assured that the spirit of the judgment would not be circumvented.
Leona Aglukkaq, the federal Health Minister, said her Conservative government is taking a close look at the ruling.
"Although we are disappointed with the Supreme Court of Canada’s decision today, we will comply," Ms. Aglukkaq told the House of Commons.
"As part of our strategy, we have made significant investments to strengthen existing treatment efforts through the treatment action plan. "We will do our part and do the due diligence and review the Supreme Court decision."
Libby Davies, the New Democrat MP who represents Vancouver’s downtown eastside, applauded the Supreme Court. “It has validated all of these years of struggle and work to show that Insite is a very important resource and service and it saves lives," she said.
The federal Conservative government has consistently failed to pay attention to evidence and the real experience in the community, Ms. Davies said.
“So I really hope that today’s decision is a moment of opportunity and reflection and for Mr. Harper and his government to think about the importance of this service and to say to themselves that when something is working so well locally, they should not be a barrier; they should not be standing in the way of something that is proven to be a very important medical intervention to help save lives," she said.
Writing for the majority, Chief Justice McLachlin said that addicts are extremely sick individuals whose urgent need frequently leads to them inject drugs with dirty needles after dissolving narcotics in dirty puddle water.
She noted that by 1993, 200 people were dying annually in the Downtown Eastside. Numerous others were contracting AIDS/HIV or other serious illnesses from their drug activities.
Serious drug addiction is not a moral choice; it is an illness which essentially negates the notion of “choice” altogether, Chief Justice McLachlin said. She said that adopting a moral attitude toward an addict's “choices” – as the federal government did – was simply the wrong approach to take.
“On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety,” the Court said in a 9-0 ruling.
“In accordance with the Charter, the Minister must 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. Where, as here, 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.”
Montreal may soon follow Vancouver’s lead in setting up a supervised injection site. Jean-François Mary of Cactus Montreal, a community group that has been pressing to operate supervised injection sites for years, says today’s ruling removes the group's last remaining obstacle.
“The scientific merit was proven long ago, there was only the question of the legality,” Mr. Mary said in an interview. “This decision brings us a big step forward – a Supreme Court ruling we can rely on.”
He says police and municipal officials in Montreal were unwilling to back the idea of supervised sites without a legal opinion – something that changes now. “If we couldn’t prove the legality, we couldn’t get their support.”
He said his group will use today's ruling to put pressure on Quebec Health Minister Yves Bolduc to approve supervised injection sites in the province.
Mr. Mary said about 150 people a day use the services of Cactus Montreal, which already runs a needle-exchange program, an indication of how many users might benefit from a supervised injection site.
Hundreds of people gathered outside the Insite clinic to watch the decision on a live video stream. Cheers broke out, some people hugged, others cried, when Liz Evans of the Portland Hotel Society yelled, “We won!”
Through tears, Ms. Evans said she was too ecstatic for words.
Dean Wilson, Insite’s first user who was a plaintiff in the original B.C. Supreme Court case, said via video link that he too was overjoyed.
Dr. Julio Montaner, who has conducted research into the Insite facility, said the court decision was “a victory for public health.”
“It is a very clear message to Stephen Harper that the time has come for him to abandon his ideology regarding addiction, HIV and other related matters and move on with the evidence,” he said.
University of Ottawa law professor Carissima Mathen said the decision is certain to provide authority for other cities to open their own supervised injection clinics.
“And the Minister’s refusal to grant those exemptions would also, given the right facts, be an ‘arbitrary’ and ‘grossly disproportionate’ violation of the Charter right to life, liberty and security of the person,” she said.
In her judgment, Chief Justice McLachlin referred specifically to federal fears that the continued existence of Insite “raises the spectre of a host of exempt sites, where the country’s drug laws would be flouted with impunity.”
On the contrary, she said, clinics will only exist without fear of prosecution if they are provably capable of reducing the risk of death and disease.
She said that the purpose underlying drug laws is to register societal disapproval of drug use, deter drug use and to prevent harm, yet the federal government's actions in withdrawing Insite's exemption contradicted those underlying purposes.
Prof. Mathen said that the decision is particularly powerful because it was unanimous and written by Chief Justice Beverley McLachlin. “Over the last few years the Court has been divided over both division powers and Charter issues, so unanimity is a welcome bonus,” she said. “The Court also outlines in some detail the particularly harsh reality of life in the Downtown Eastside.
She that issuing a direct order to the federal Minister of Health was one of the boldest measures any court can take. “It demonstrates that the Court viewed the Minister’s actions as seriously deficient,” she said.
Insite was launched in 2003 under a special exemption from prosecution. Chief Justice McLachlin described its creation as a clear instance of cooperative federalism.
“Local, provincial and federal authorities combined their efforts to create it,” she said. “It was launched as an experiment. The experiment has proven successful. Insite has saved lives and improved health. And it did those things without increasing the incidence of drug use and crime in the surrounding area. The Vancouver police support Insite. The city and provincial government want it to stay open.”
In 2008, however, the Harper government became disenchanted with the notion of providing addicts with legally sanctioned hard drugs and ended the exemptions.
The move forged an immediate alliance between drug users, the medical community and across the province’s political spectrum. A coalition of groups wasted little time in asking the Courts to clear the way for Insite to continue operating, and the dispute became a major source of tension between B.C. and the federal government.
Supported by the B.C. attorney-general, the coalition was successful in persuading the B.C. Supreme Court and the British Columbia Court of Appeal to find Insite immune from the criminal prosecution under the doctrine of “inter-jurisdictional immunity.” But the Supreme Court overruled the lower courts on the finding of immunity, saying Ottawa has a clear right to administer the criminal law where it sees fit, provided it does not violate an individual’s Charter rights.
Still, by allowing the province to override federal anti-drug concerns, the judgment constitutes a slap in the face to the Harper government in a case had evolved into a major constitutional brawl between the two levels of government.
“It is a classic battle between the federal and provincial governments over the limits of two powers – criminal law and health care – which are mutually exclusive but have obviously conflicted in this case,” said Prof. Mathen.
Prof. Mathen said the federal government gambled by wading into battle with the B.C. government, risked the erosion of its criminal law powers. Instead, the Court underlined federal concerns by warning against the expansion of interjurisdictional immunity into new areas of regulation and policy.
“Overlapping federal jurisdiction and the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread,” it said.
The Court also warned that division of powers cases must not contribute to growing legal confusion.
“Excluding the federal criminal law power from a protected provincial core power would mean that Parliament could not legislate on controversial medical procedures, such as human cloning or euthanasia,” Chief Justice McLachlin said. “The provinces might choose not to legislate in these areas, and indeed might not have the power to do so. The result might be a legislative vacuum, inimical to the very concept of the division of powers.”
The Chief Justice noted that supervised injection sites are being operated successfully in many other countries, including 70 cities in six European countries and in Australia.
“These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services,” she said. “Successful treatment requires acknowledgment of the difficulties of reaching a marginalized population with complex mental, physical, and emotional health issues.
The Chief Justice, who spent much of her career as a lawyer and judge in Vancouver, showed keen sensitivity to drug addicts and to the unique community of the Downtown Eastside. She noted that the geographically small area is home to 4,600 intravenous drug users whose addiction means that their lives are constantly on the line.
“There is no single reason for the concentration of intravenous drug users in this urban neighbourhood,” she said. “Contributing factors include the presence of several single room occupancy hotels, the de-institutionalization of the mentally ill, the effect of drug enforcement policies over the years, and the availability of illicit narcotics at street level.”
She said that drug use is horrifyingly overt: “At any given time of day drug transactions can be witnessed in the open air on the very steps of the historic Carnegie Community Centre at Main and Hastings. In alleys steps away, addicts tie rubber bands around their arms to find veins in which to inject heroin and cocaine, or smoke crack from glass pipes.”
Many addicts have a history of physical and sexual abuse as children and were exposed to drug use in their early lives, Chief Justice McLachlin added.
“Many use multiple substances, and suffer from alcoholism,” she said. “Some engage in street-level survival sex work in order to support their addictions. It should be clear from the above that these people are not engaged in recreational drug use: they are addicted. Injection drug use is both an effect and a cause of a life that is a struggle on a day to day basis.”
She noted that the staff of Insite have intervened in 336 overdoses since 2006, and no overdose deaths had occurred at the facility - proving that its operation is essential to lessen the impact of drug addiction in Vancouver.
In an important aside, the Court said that both users and medical staff at the clinic would have been subjected only to possession charges, not charges of drug trafficking.
Nervous medical staff had arrived for work at the clinic on Friday uncertain whether its doors would close forever. Medical staff, addicts and groups supporting the clinic had made it clear that if the Court were to rule against it, they would bombard the Harper government with demands to let Insite remain open.
“Stephen Harper will have an important choice before him,” said one of the plaintiffs in the legal action, Shelly Tomic. “He can choose life – or he can choose death for thousands of Canadians suffering while struggling to overcome their addiction.”
The B.C. Health Ministry, which funds the facility, has cited numerous studies that showed Insite’s effectiveness in connecting vulnerable, at-risk injection drug users with health services. Vancouver Police also report no risk to the public from the site’s operation in the heart of the Downtown Eastside.
Dr. Montaner said on Thursday that health professional are able to access hard-to-reach drug users at the facility to enlist them in aggressive anti-HIV treatment. He noted that B.C. is the only province in Canada where the rate of HIV infection is going down.
“So, from our perspective, the benefits of Insite to those infected and to the community at large are irrefutable,” he said. “We have every expectation that we will continue this kind of service for the long haul.”