Inside The InSite Ruling

By John Conroy
Counsel to VANDU

I have now had an opportunity to read the Supreme Court of Canada decision thoroughly, and here is my opinion and summary of what it stands for:
1. The Controlled Drugs and Substances Act (CDSA) is valid federal legislation under the federal criminal law power having the dual purposes of the maintenance and promotion of public health and safety. While the federal government has chosen an approach that favours a blanket prohibition of the possession of illegal drugs, Parliament has at the same time recognized that there are good reasons to allow the use of illegal substances in certain circumstances. S. 56 permits the Minister of Health to issue exemptions for medical and scientific purposes and s. 55 authorizes the Governor in Council to make regulations for the medical, scientific and industrial use of illegal substances. In this manner, Parliament has attempted to balance the two competing interests of public safety and public health[20];
2. S. 4 of the CDSA limits the s. 7 Charter rights of the staff and clients of Insite. To prohibit possession by drug users anywhere engages their liberty interests and to prohibit possession at Insite engages their right to life and to the security of their person. The findings of fact by the trial judge support the conclusion that denial of access to the health services provided at Insite violates its clients s. 7 rights to life, liberty and security of the person. Many of the health risks of injection drug use are caused by unsanitary practices and equipment and not by the drugs themselves. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals. Where a law creates a risk to health by preventing access to healthcare, a deprivation of the right to security of the person is made out. Where the law creates a risk not just to health but also to the lives of the claimant’s the deprivation is even clearer.[93]
3. S. 5 of the CDSA(Trafficking) does not limit the s. 7 Charter rights of the addicts and the conduct of the staff at Insite does not involve trafficking[95];
4. Addiction is an illness, characterized by a loss of control over the need to consume the substance to which the addiction relates. It is a disease in which the central feature is impaired control over the use of the addictive substance[99 and 101];
5. The prohibition on possession in s, 4 (1) of the CDSA limits the s. 7 interests of the claimant’s and others like them but s. 4 cannot be considered in isolation and s. 56 must be considered. The public safety purpose of the Act is achieved by the prohibition on possession of listed substances and the public health purpose is achieved not only by the prohibitions which seeks to avert the use of dangerous substances, but also by the provision of regulations guiding exemptions for the use of listed substances for medical and scientific purposes in s. 55 and 56 of the Act[109-110]. The availability of exemptions acts as a safety valve that prevents the CDSA from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects[113]. S. 4 of the CDSA engages the s.7 Charter rights of the individual claimants and others like them. It does not violate s. 7 because the CDSA confers on the Minister the power to grant exemptions from s. 4 on the basis of, among other things, health. If there is a Charter problem it lies not in the statute but in the Minister’s exercise of the power the statute gives him to grant appropriate exemptions[113-114].
6. The Minister declined to extend the exemption here and this rejection engaged the claimants s.7 Charter rights and was arbitrary and grossly disproportionate in its effects and hence not in accordance with principles of fundamental justice[127]. The Minister cannot simply deny an application for an exemption based on policy simpliciter, the decision must accord with the Charter. The findings of fact below show that the exemption of Insite from the application of the possession prohibition does not undermine the objectives of public health and safety, but furthers them[131]. The government action here is arbitrary under both definitions pronounced by this court [132]. The application of the possession prohibition to Insite is also grossly disproportionate in its effects. It saves lives. Its benefits have been proven. There has been no discernible negative impact. 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 [133]. Overbreadth need not be considered [134]. The failure of the Minister to grant the s. 56 exemption to Insite is not in accordance with the principles of fundamental justice [135].
7. The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision would have been to prevent ejection drug users from accessing the health services offered, threatening the health of and the lives of potential clients. It engaged and limits s. 7 Charter rights in a manner that is not in accordance with the principles of fundamental justice. It is arbitrary and undermines the very purposes of the CDSA including public health and safety. It is grossly disproportionate in that the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweighs any benefit that might be derived for maintaining an absolute prohibition on possession of illegal drugs on Insite’s premise.[136].
8. The Ministers decision to refuse the exemption bears no relation to the objectives of the maintenance and promotion of public health and safety and cannot justify the infringement of the complainant’s s. 7 Charter rights. No s.1 Charter justification can succeed[137].
9. Because s. 4 of the CDSA is constitutionally valid bearing in mind s. 56 of the CDSA, no declaration of constitutional invalidity under section 52 is available. Therefore the remedy must be crafted under section 24 (1) of the Charter. A declaration that the Minister erred would be inadequate. There was a serious infringement threatening the health and the lives of the claimant’s and others like them. The grave consequences that might result from a lapse in the current constitutional exemption for Insite cannot be ignored. A permanent constitutional exemption is to be avoided when the remedy is for state action and not a law.[138 – 148]. The Minister should not be precluded from withdrawing the exemption to Insite should changed circumstances at Insite so require[149].
10. In the special circumstances of this case an order in the nature of mandamus is warranted ordering the Minister to grant and exemption to Insite under s. 56 of the CDSA forthwith, subject to the Ministers power to withdraw the exemption should the operation of Insite change such that the exemption will no longer be appropriate. Based on the findings of fact below the only constitutional response to such an application would be to grant it. The Minister is bound to exercise his discretion under s. 56 of the CDSA in accordance with the Charter. On these facts they can only be one response and that is to grant the exemption[150].
11. This does not fetter the Ministers discretion with respect to future applications as the Minister must always exercise that discretion within the constraints imposed by the law and the Charter[151]. The dual purposes of the CDSA provide some guidance to the Minister. When considering an application for exemption for a supervised injection facility the Minister will aim to strike the appropriate balance between achieving the public health and public safety goals. When the evidence indicates that such a facility 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.[152]. While the minister is given a discretion it must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivation of life and security of the person that are not in accordance with 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 a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expression of communities support or opposition.[153].
12. The VANDU cross-appeal brings a much broader challenge to s. 4 of the CDSA challenging the application of the prohibition on possession to all addicted persons, not only those seeking treatment at the supervised injection site. It is submitted that addicted persons have no control over the urge to consume addictive substances, they are forced by fear of arrest and prosecution to consume drugs in a manner that threatens their lives and health, and this causes within them a high level of psychological stress. This contention lacks an adequate basis in the record. The evidence at trial and the factual findings of the trial judge related to the nature of addiction and its attendant dangers, and how Insite responds to those dangers. There is nothing in the trial judge’s reasons which would permit this Court to conclude that there is a causal connection between the prohibition of possession on the deprivation of all addicts s. 7 rights[154-155]. Opinion: I think the Court is in error here in relation to the VANDU claim and the lack of adequate record. While they do not refer to those parts of Dean Wilson’s affidavit in their reasons that was available before them and clearly dealt with these causal effects, nor that of Dr. Gabor Mate arising from the VANDU record, they do include references to parts of the record that supported the VANDU position such as paragraphs – [1] – without fear of arrest and prosecution, [5] the effective drug enforcement policies over the years [10], although many users are educated about safe practices, the need for an immediate fix or the fear of police discovering and confiscating drugs can override even ingrained safety habits. Addicts share needles, inject hurriedly in alleyways and dissolve heroin in dirty puddle water before injecting it into their veins. In these back alleyways, users who overdose are often alone and far from medical help. Etc. etc what Insite ameliorates goes on outside Insite. That is where the grossly disproportionate effects are occurring—not at Insite itself.
13. The CDSA is constitutionally valid and applies to Insite but the Ministers decision in refusing to exempt Insite from the operation of the CDSA was a violation of the Respondents s. 7 Charter rights. The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA. Canada’s appeal is dismissed as is VANDU’s cross appeal. The constitutional questions are answered in the negative. The claimant’s are awarded special costs including costs of this appeal but that there will be no costs on the cross-appeal.

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