On Thursday, May 12, the Supreme Court of Canada will begin hearing arguments for and against the continued operation of Insite, Vancouver’s safe injection site. With three respondents and 11 intervenors in the case, the impact could be significant on drug laws in Canada.
While the decision of the Supreme Court of British Columbia determined that Insite should remain open, as it is under the jurisdiction of the provincial government as a health service, many of the respondents and intervenors plan to make arguments about the very constitutionality of drug laws.
“In the health [sector], it’s probably the most important case since Morgentaler on abortion,” says Louis Letellier, a health lawyer with Cactus in Montreal and a board member with the Canadian HIV/AIDS Legal Network, both of which are intervenors in the case.
“We are using the Morgentaler case to say when people are in danger because we’re not offering sufficient health support or health services, then government must act, and if we deny those health services, then we’re wrong as government,” Letellier says.
Cactus is one of a handful of nonprofits across the country that helps drug users and sex workers by reducing “the risks associated with those practices and improving their quality of life.”
Letellier adds that a victory will underscore the importance of harm reduction, a principle pioneered by HIV/AIDS activists that acknowledges that complete abstinence from drug use isn’t achievable for all people all the time.
And if harm-reduction advocates lose?
“Well, we’re back to a very dark period,” Letellier says. “We’re going to lose all the efforts we’ve made through the last 20 years in prevention, promotion of health towards sex workers, towards people who use drugs as well, so it’s a very important decision.”
Some of the intervenors will argue that criminalizing possession and trafficking of illicit drugs violates the Charter provisions around right to life, security and liberty. For drug users, it frames the issue as one of health rather than of criminal justice.
“We say with reference to drug addiction more generally, it is unconstitutional to criminalize conduct that drug addiction compels,” says Ryan Dalziel, the counsel for the BC Civil Liberties Association, another intervenor.
“We say that if somebody has no realistic choice but to break the law, whether because of mental illness or because they’re being threatened, or whatever reason — if they have no realistic choice — then the law is, you cannot impose criminal sanctions for what they’ve done,” Dalziel says. “We say that the nature of addiction is such that for at least some addicts at some times, they have no realistic choice but to purchase and consume the drugs to which they’re addicted.
“For that reason, the absolute ban on possession and trafficking in the criminal law goes too far,” Dalziel says. “They’re unconstitutional.”
The Vancouver Area Network of Drug Users (VANDU), one of the respondents — alongside the Portland Hotel Society, which runs Insite, and the BC provincial government — is making the case that drug laws themselves are a barrier to addicts from accessing healthcare.
“The fact that you’re criminalized for your addiction and your behaviour and what you put in your body creates this whole set of conditions that people can’t access the healthcare treatment that they need,” says Aiyanas Ormond, a community organizer at VANDU. “Insite should be allowed on those grounds – that it provides healthcare to people who would otherwise be prevented from getting it.”
Ormond also points to the fact that many of the harms associated with drug use are a function of criminalization rather than the drugs themselves.
“The sense of our lawyer is that if we won this case, then anyone who’s diagnosed as addicted by a health professional could no longer be criminalized for injecting or smoking heroine or cocaine,” Ormond says, adding that while Insite is the “Cadillac model” of safe injection sites, VANDU is looking at more affordable grassroots approaches to similar kinds of safe facilities for drug users.
Many provincial governments will be looking to the Insite case before they roll out their own safe injection facilities as part of harm-reduction strategies.
“In Quebec, safe injection sites are part of the possibilities in harm reduction,” Letellier says. “It’s written black-on-white in the public health national plan, but the minister is just waiting for a decision. And he’s probably not the only one.”
While Cactus plans to open a safe injection site of its own in Montreal if the Supreme Court rules in favour of Insite’s continued operation, Letellier adds that because the money comes from the ministry, Cactus needs to have that decision so that the funding for its other services isn’t jeopardized.
The federal government, meanwhile, is basing its arguments on legislative authority.
“The plaintiffs are challenging this government’s ability to regulate highly addictive, dangerous drugs,” says a spokesperson for Health Canada. “We must defend the government’s ability to do so for the safety of Canadians. Our government cares about preventing people from becoming drug addicts.
“The focus of our National Anti-Drug Strategy is on prevention and treatment for those with drug dependencies. As part of the strategy, we have made significant investments to bolster existing treatment efforts through the Treatment Action Plan. Our law-and-order agenda remains a priority of this government, and we will continue putting drug dealers in jail, and cracking down on gangs and organized crime so that our children are safe.”
Dalziel says that even if the federal government has the legislative authority to regulate Insite, the exercise of that authority must be compliant with the Charter, which goes to the root of his argument before the Court.
“If somebody had no realistic choice but to break the law, then that can’t be criminalized,” Dalziel says.
Letellier points to the mounting evidence of Insite’s efficacy with reducing deaths from overdoses. A recent study confirming the life-saving role of Insite was published in the medical journal The Lancet.
The federal government will have a hard time arguing that Insite’s activities increase criminal activity in the area or that it invites people addicted to drugs to stay on them, Letellier says. “They don’t have that evidence – on the contrary.
“The evidence says that these programs are very helpful. They bring people who normally would not go to health services to come, then to integrate some services. Hopefully at least we’re going to stop the epidemic, and we’re going to stop at least a very high percentage of the overdoses and deaths. We do have this evidence now.”