Before:
The Honourable Mr. Justice Pitfield
Reasons for Judgment
Counsel for the Plaintiff: PHS Community
Services Society, Dean Edward Wilson and Shelly Tomic
|
J.J.
Arvay, Q.C.
F.A.
Schroeder
M.
Pongracic-Speier
|
Counsel for the Plaintiff: VANDU
|
J.W.
Conroy, Q.C.
|
Counsel for the Defendant: Attorney
General of Canada
|
J.J.L.
Hunter, Q.C.
K.M.
Stephens
|
Counsel for the Intervenor: British
Columbia Civil Liberties Association
|
D.A.
Webster, Q.C.
R.D.W.
Dalziel
|
Date and Place of Hearing:
|
April
28 - May 2,
May
5-7, 2008
|
|
Vancouver,
B.C.
|
I. Introduction
[1]
When within the confines of the Vancouver Safe
Injection Site (“Insite”), drug users are not liable to prosecution for possessing
a controlled substance contrary to s. 4(1) of the Controlled Drugs
and Substances Act, R.S.C. 1996, c. 19 (the “CDSA”), or staff, for trafficking
contrary to s. 5(1). Users and staff have been afforded exemptions by the
Federal Minister of Health under s. 56 of the CDSA:
56. 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 the 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.
[2]
The initial exemptions, based on necessity for a
scientific purpose, were granted for a term of three years commencing September
12, 2003. They were subsequently extended to December 31, 2007, and then to
June 30, 2008. If the ability to operate is dependent upon the exemptions and
no further extensions are forthcoming, Insite will close its doors on June 30th.
[3]
For that reason, PHS Community Services Society
(“PHS”) and its co-plaintiffs, Mr. Wilson and Ms. Tomic, and Vancouver Area
Network of Drug Users (VANDU) have commenced separate actions seeking relief
that will obviate the need for the exemptions.
[4]
PHS is a non-profit organization and registered
charity whose main purpose is to provide housing and support to individuals in
the Downtown Eastside (“DTES”) of Vancouver, individuals which it describes
collectively as the “hard to house, hard to reach or hard to treat”. PHS describes
its constituents as those who are homeless or at risk of homelessness due to
multiple barriers to stable housing associated with a combination of
unemployment, addiction, chronic illness and mental health problems.
[5]
PHS operates Insite under a contractual
arrangement with the Vancouver Coastal Health Authority (the “Health
Authority”). In its action, PHS claims that:
1. Insite is a health
care undertaking, authority for the operation of which lies with the Province.
2. The federal constitutional
power to legislate with respect to criminal law cannot interfere with the provincial
constitutional power with respect to health care because of the doctrine of
interjurisdictional immunity.
3. In the alternative, ss. 4(1) and
5(1) of the CDSA are unconstitutional and should be struck down because they
deprive persons addicted to one or more controlled substances of access to
health care at Insite and therefore violate the right conferred by s. 7 of the Charter
of Rights and Freedoms (the “Charter”) 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.
[6]
VANDU is a non-profit society whose primary
purpose as an advocate on behalf of drug users is to increase the capacity of addicts
to live healthy lives by promoting local, regional and national harm reduction,
education, intervention and peer support. VANDU seeks declarations that:
1. The
conduct of the staff in the ordinary course of business at Insite does not
involve the commission of any offences at law;
2. The
CDSA and the regulations do not apply to the medical treatment at Insite
of persons addicted to a controlled substance;
3. The
offence of the possession of all addictive drugs as set out in Schedules I, II
and III of the CDSA violates s. 7 of the Charter; and
4. Section
56 of the CDSA, which vests an unfettered discretion in the Minister to
grant an exemption from the provisions of the CDSA, is unconstitutional.
[7]
The Attorney General of Canada
("Canada") opposes the granting of any of the relief claimed in
either action on the basis that:
1. The impugned
provisions of the CDSA are valid federal law and are not subject to “reading
down” or other limitation as alleged by the plaintiffs.
2. The doctrine of
interjurisdictional immunity has no application.
3. Insite only operates
lawfully because of the ministerial exemptions granted under s. 56 of the CDSA;
4. No interest in
life, liberty or security of the person under s. 7 of the Charter is engaged;
5. If a s.7 interest is
engaged, the plaintiffs have not been deprived of any such interest contrary to
the principles of fundamental justice because the application of valid criminal
prohibitions in respect of the possession and trafficking of illicit drugs to
the plaintiffs is not arbitrary, overly broad, grossly disproportionate, or
otherwise constitutionally objectionable;
6. In the further alternative, if
the plaintiffs’ s. 7 rights have been infringed, any such infringement is saved
by s. 1 of the Charter.
[8]
Because of the common issues raised by the
actions, they were heard together.
II. Preliminary
Objection to Summary Trial
[9]
The plaintiffs set these actions for hearing by
way of summary trial on affidavit evidence pursuant to the Rules of Court. At
the commencement of the hearing, Canada applied for an order declaring that the
actions were not appropriate for summary trial and disposition because the
complexity of the evidence, the appearance of material conflicts in the
numerous affidavits, and the importance of the issues required the in-court
testimony of witnesses.
[10]
After considering the submissions of all
counsel, I concluded that I could not finally rule on Canada’s objection with
fairness to the parties without considering all of the affidavit evidence and hearing
the submissions of counsel in relation to it. I adjourned Canada’s application
and invited counsel to renew it, should they wish to do so, in the course of
final submissions. I also advised the parties that I was bound by Rule 18A(11)
in any event, and would not dispose of the actions if I concluded that I was
unable, on the whole of the evidence before the court on the summary trial applications,
to find the facts necessary to decide the issues of fact or law.
[11]
At the close of eight days of hearing, counsel
for Canada submitted that the actions could and should be decided by means of
this summary trial, provided that I did not find it necessary to make findings
of fact in relation to various matters of science on which there are conflicts
in the evidence.
[12]
I have concluded that the affidavit evidence and
the course of argument enable me to decide the relevant issues of fact and law that
are essential to the disposition of the actions, and that it is appropriate to proceed
by means of the summary trial process. It follows that Canada’s application to
dismiss the plaintiffs’ summary trial applications on the basis that the issues
are not suitable for disposition in that manner is dismissed.
III. Historical
and Operating Context
A. The Downtown Eastside and the Origin of Insite
[13]
The character of the DTES and the context in
which Insite emerged are central to an understanding of the issues raised by
these actions.
[14]
PHS tendered the affidavits of Mr. Donald
McPherson, Vancouver's Director of Drug Policy, and Ms. Heather Hay, Director
of Addiction, HIV/AIDS and Aboriginal Health Services for the Health
Authority. Their evidence describing the DTES and the origin of Insite was not
challenged by Canada. I accept their evidence regarding the social context. The
summary that follows is based on that evidence. However, I am not to be taken
to have necessarily accepted the admissibility of any opinions contained in
their affidavits. I will consider the admissibility of those opinions and their
relevance to the issues before me when necessary or appropriate to do so.
[15]
The DTES is generally regarded as the area
bounded by the waterfront along Burrard Inlet on the north, Clark Drive on the
east, Pender and Terminal Streets on the south, and Richards Street on the
west. Ms. Hay described the DTES as "the home to the poorest postal code
in Canada". The median household income in the area was approximately $12,900
in 1996 compared to the City average of approximately $48,000. The DTES is
home to over 4,600 of the estimated 12,000 intravenous drug users in Vancouver.
There is no dispute regarding the fact that numerous studies have noted the
lack of adequate housing, the superabundance of single-room occupancy hotels, and
the fact that the DTES is home to many vulnerable people including urban
aboriginals who live in poverty and transition, and individuals with serious
mental illnesses.
[16]
In its report of March 31, 2008, an Expert
Advisory Committee (the “EAC”), constituted to report to the Federal Minister
of Health, described the characteristics of approximately 1,000 users surveyed
in the DTES as follows:
•
have been injecting
drugs for an average of 15 years;
•
majority (51%) inject
heroin and 32% cocaine;
•
87% are infected with
Hepatitis C virus (HCV) and 17% with human immunodeficiency virus (HIV);
•
18% are aboriginal;
•
20% are homeless and
many more live in single resident rooms;
•
80% have been
incarcerated;
•
38% are involved in the
sex trade;
•
21% are using
methadone; and
•
59% reported a
non-fatal overdose in their lifetime.
[17]
The conditions that have prevailed in the DTES
affecting the lives of many who live there have long been known to civic, provincial
and federal authorities as well as police. Inestimable amounts of time, energy
and money have been directed to the search for solutions. Despite the efforts
and undoubtedly good intentions, the problems persist.
[18]
Mr. Donald McPherson began his employment with
the City of Vancouver in 1987 as the Education Programmer of the Carnegie
Centre located in the heart of the DTES. He became director of the Centre in
1993. He moved to City Hall in 1997 to help develop a drug policy for the
City. He became the City's Drug Policy Co-ordinator in 2000, his present
position.
[19]
Mr. McPherson described the circumstances that
prevailed in the vicinity of the Carnegie Centre:
…During my time at the Centre, I watched the public illicit drug use
mushroom on the very steps of the Centre at the corner of Main and Hastings.
By the time I left the Centre, the top priority at the Centre was to contribute
to the development of a plan to address the public use of illicit drugs and the
rise in overdose deaths and spread of HIV/AIDS and Hepatitis C.
[20]
Mr. McPherson attributes the heightened interest
in intravenous drug use in the DTES to a 1994 report prepared by Coroner J.V.
Cain entitled Report on the Task Force into Illicit Narcotic Overdose Deaths
in British Columbia. The coroner's report was prompted by his investigation
of overdose deaths in Vancouver which had risen from 16 in 1987 to 200 in 1993.
[21]
Ms. Hay, like Mr. McPherson, identifies the
coroner's report as the warning that an epidemic of drug-related deaths had
developed in British Columbia by 1995.
[22]
In 1996, Dr. Whynot, then Vancouver's medical
health officer, issued a report describing the major impacts of injection drug
use on the health system in Vancouver. Dr. Whynot concluded that injection
drug use was leading to an increased incidence and prevalence of symptomatic
infectious disease including HIV/AIDS, Hepatitis A, B and C, and skin- and
blood-borne infections; frequent drug overdoses resulting in significant
morbidity and mortality; increased hospital and emergency service utilization
such as treatment for HIV-related disease, septicaemia and endocarditis; increased
ambulance responses and emergency room visits in response to drug overdoses;
fetal exposure to addictive substances with both short-term and long-term
consequences; increased pressure on all community-level outreach nursing and
medical services; an increased need for community-level hospice palliative
care; and worsening consequences for associated conditions such as mental
illness.
[23]
In 1996, the British Columbia Centre for
Excellence in HIV/AIDS based at St. Paul’s Hospital, Vancouver, reported an HIV/AIDS
epidemic in the DTES. In 1997, the Health Authority’s predecessor reported
that the spread of Hepatitis C in the DTES had reached epidemic proportions.
[24]
By early 1997, researchers at the Center released
a research report indicating that the prevalence rate of HIV/AIDS in the DTES
was then approximately 27% among injection drug users. The researchers
concluded that the HIV/AIDS prevalence rate in the DTES was indicative of
epidemic levels of infection. The Health Authority's predecessor accepted the
Centre's research as scientifically sound.
[25]
In the spring of 1997, the Province of British
Columbia announced that it would allocate $3 million to combat the spread of
HIV in the DTES. In the summer of 1997, a report to the provincial Minister of
Health indicated that the HIV/AIDS epidemic in the City of Vancouver was focused
in the DTES and that the disease was spreading most rapidly among individuals
who were, or were likely to become, street involved or involved with injection
drug use. The report observed that those engaged in injection drug use in the
DTES were frequently afflicted by multiple health issues: HIV/AIDS, Hepatitis
C, Tuberculosis, alcohol and drug addiction, and mental illness. In addition,
the report noted that many individuals coped simultaneously with poverty, a
lack of affordable housing, a lack of transportation, inter-generational abuse
and violence, and poor access to services.
[26]
In September 1997, the Chief Medical Health
Officer of the Vancouver Health Board declared a public health emergency in the
DTES in relation to the escalating rate of HIV infection. In October 1997, the
Health Board adopted the Vancouver Downtown Eastside HIV/AIDS Action Plan,
which introduced several harm reduction strategies including the development of
VANDU, targeted prevention programs, expanded needle exchange, and drug
overdose management. The goal of the action plan was to keep drug users alive,
contain the communicable disease epidemics, and stop others from being
infected.
[27]
In 1998, the provincial Health Officer published
a report entitled HIV, Hepatitis and Injection Drug Use in British Columbia
- Pay Now or Pay Later. The report recommended local action including
consideration of a harm reduction approach.
[28]
In 1999, Ms. Hay was directed to head a team to
investigate the broader health situation in the DTES. Ms. Hay described the
findings in her affidavit as follows:
After broad-based consultation with national and international experts,
we found that several public policies combined with changes in available
services and changes in the nature of available drugs, made this community [the
DTES] the perfect storm for a continued public health crisis. Decentralization
of mental health clients, over-representation of urban aboriginal clients,
withdrawal and closure of the addiction/mental health treatment services,
introduction of crack cocaine to the neighbourhood, limited access to housing,
limited access to clean needles, and poor access to primary health care led to
a severe burden of illness and disease. Combined with poor, if any, access to
washrooms, hand washing and food security, these circumstances continued to
fuel an already extremely critical situation. The combination of expanded drug
distribution and use, unstable housing, poor access to treatment and vulnerable
client populations called for a much larger intervention than what had been
previously realized through the HIV/AIDS Action Plan.
[29]
The team reached the following conclusions: HIV/AIDS
was at epidemic levels in the DTES; there was an epidemic of transferable
Tuberculosis attributable to the compromised health status of injection drug
users and impoverished housing condition in the DTES; there was a serious
syphilis outbreak among female sex-trade workers, the preponderance of whom were
also drug addicted and engaged in survival prostitution to feed their drug
habits; there were outbreaks of Hepatitis A and B in the DTES attributable to
the compromised immune systems of injection drug users who occupied single-room
occupancy hotel rooms, often on a shared basis, with extremely limited, if any,
access to hand washing or toilet facilities, there often being only one
washroom available to be shared among 80 to 90 residents; there was a Hepatitis
C epidemic (90% infection rate) associated with needle sharing; and the drug
overdose epidemic continued among injection drug users, producing fatal and
non-fatal overdoses.
[30]
Ms. Hays' team concluded that injection drug use
ought to be a primary focus of the Health Authority's efforts in the DTES.
They encouraged the development of an integrated health approach built on four
pillars: the expansion of primary care services in the DTES; the development of
creative interventions to address communicable diseases, including mass
immunization and treatment; the development of a continuum of alcohol and drug
services including expanded innovative harm reduction strategies, targeted
prevention strategies, and short-term and long-term residential health care
treatment services to be developed within and outside the DTES; and improved
access to stable housing for individuals living in the DTES.
[31]
In March 2000, the City, the Province and the
Federal Government, entered into The Vancouver Agreement, which provided
for cooperation and funding among the three levels of government in order to
assess the City's critical needs. The DTES was identified as the number one
priority. With the benefit of funding derived through The Vancouver
Agreement, and in accordance with the integrated health approach, the
Health Authority began to implement core addiction services, particularly in
the DTES.
[32]
The Vancouver Agreement stated that the goal for the DTES was to create a healthy, safe and
sustainable community. The strategy by which the goal would be pursued
involved initiatives in community health and safety, economic and social
development, and community capacity building. The community health and safety
component was described in the following terms:
Proposed Components of the Downtown Eastside Strategy
The Strategy proposes three equal components: Community Health and
Safety, Economic and Social Development, and Community Capacity Building.
1. Community Health and Safety
1a. Primary Health Care
Residents in the Downtown Eastside should have access to coordinated,
high quality, primary health care. Effective linkages between health care and
social services programs will be promoted. Strategies which promote programming
where outcome evidence demonstrates effectiveness will be developed in
collaboration with the Vancouver/Richmond Health Board.
The following are some objectives:
•
Improve the health
status of residents in the Downtown Eastside.
•
Reduce the need for
emergency and crisis interventions.
•
Improve access to
hospital care.
•
Reduce the spread of
HIV/AIDS and other infectious diseases.
•
Reduce preventable
deaths.
•
Increase service
integration to improve continuity of care.
•
Increase the proportion
of residents receiving regular primary care.
1b. Comprehensive Substance Misuse Strategy
Substance misuse is a health and social issue which is best addressed
through collaborative health and social programs that get at the root causes of
substance misuse.
An effective substance misuse strategy consists of a continuum of
services from prevention and education to treatment and rehabilitation. A key
feature is to build a range of comprehensive addiction services including a
continuum of innovative approaches to reducing harm. Links to primary health
care, housing, education and training, and employment are critical to the
success of this strategy.
The following are some objectives:
•
Decrease preventable
deaths related to substance misuse.
•
Reduce incidence of
communicable disease associated with injection drug use.
•
Reduce preventable harm
associated with alcohol and other substance misuse.
•
Reduce overall costs to
the economy related to substance misuse,
•
Enhance integration of
services to address the social causes of substance misuse.
•
Enhance prevention
initiatives for all age groups.
•
Increase public
awareness and education to reduce harm.
•
Promote rehabilitation
options.
•
Reduce criminal
activities associated with substance misuse.
[33]
A document entitled A Framework for Action -
A Four Pillars Approach to Drug Problems in Vancouver: Prevention, Treatment,
Enforcement and Harm Reduction, was released in April 2001.
[34]
The report, of which Mr. McPherson was the
principal author, introduced and described the four pillars concept:
The following briefly describes the four pillars:
Prevention involves education about the dangers of drug use and
builds awareness about why people misuse alcohol and drugs and what can be done
to avoid addiction. A Framework for Action supports coordinated,
evidence-based programs targeted to specific populations and age groups—
programs that focus on the causes and nature of addiction as well as on
prevention.
Treatment consists of a continuum of interventions and support programs that
enable individuals with addiction problems to make healthier decisions about
their lives and move towards abstinence. These include detoxification,
outpatient counselling and residential treatment, as well as housing, ongoing
medical care, employment services, social programs, and life skills.
Enforcement strategies are key to any drug strategy. In order to
increase public order and to close the open drug scene in the Downtown
Eastside, more effective enforcement strategies will include a redeployment of
officers in the Downtown Eastside, increased efforts to target organized crime,
drug houses and drug dealers, and improved coordination with health services
and other agencies to link drug and alcohol users to available programs
throughout Vancouver and the region.
In order for A Framework for Action to increase public order, it
requires the collaboration of various enforcement agencies such as the
Vancouver Police Department, RCMP, the newly created Organized Crime Agency,
probation services, and the courts with the other programs and agencies
involved in each pillar.
Harm Reduction is a pragmatic approach that focuses on decreasing
the negative consequences of drug use for communities and individuals. It
recognizes that abstinence-based approaches are limited in dealing with a
street-entrenched open drug scene and that the protection of communities and
individuals is the primary goal of programs to tackle substance misuse. A
Framework for Action attempts to demonstrate the need for harm reduction by
outlining, and drawing upon, other successful programs around the world that
have significantly reduced both the negative health and societal impacts and
the costs of drug addiction.
[35]
In relation to harm reduction the report said
the following:
If we are going to implement a successful drug strategy in Vancouver,
we must acknowledge the need for harm reduction programs and realize that
accepting harm reduction as part of the strategy does not mean condoning the
use of illicit drugs. It means accepting the fact that drug use does and will
occur - and accepting the need to minimize the harm this has on communities and
individuals. It means recognizing that abstinence-based strategies are often
impractical and ineffective in dealing with the street entrenched drug scene.
[36]
The report stated that harm reduction was a
pragmatic approach with the overall goal of reducing harm to communities and
individuals; harm reduction involved establishing a hierarchy of achievable
goals which, taken one at a time, step by step, could lead to a fuller,
healthier life for drug users and a safer, healthier community for everyone;
harm reduction recognized that abstinence may not be a realistic or desirable
goal for certain users, particularly in the short-term; and harm reduction must
include a law enforcement strategy to remove addicts from streets and alleys
and into health services.
[37]
Mr. McPherson deposed to the investigation
undertaken in the course of developing the plan:
In developing the plan, I investigated experience elsewhere. National
and provincial sources could not offer much help - other than ultimately
providing funding. I needed pragmatic approaches to the local problem of inner
city decay and drug addiction. Frankfurt, Germany, Amsterdam, Netherlands, and
Bern, Switzerland had already addressed the same problem that the City was
facing in the Downtown Eastside, that is, an urban neighbourhood where drug use
had created health care and public health issues of epidemic proportions. The
plan was developed based on the experience of these other cities. My key
question posed to the representatives of these cities was: what works?
[38]
In developing the plan, Mr. McPherson worked
closely with the Health Authority, to whom he attributed responsibility for the
individual health care and public health components of the plan, part of which
recommended expansion and de-centralization of needle exchange facilities which
have now been established in community health clinics throughout the City.
[39]
Mr. McPherson worked in close consultation with
the Vancouver Police Department (“VPD”) in developing the plan. The report
stated that the VPD supported the establishment of Insite. The VPD affirmed its
continuing support in a letter to the Minister of Health on April 21, 2006.
There is no evidence to suggest that the VPD’s support for Insite has
diminished or evaporated.
[40]
On May 15, 2001, the City formally adopted the
plan contained in A Framework for Action.
[41]
In the period from March 2000 through May 2003,
needle exchange programs were expanded, a downtown community health centre was
opened in the DTES, methadone service was expanded, and access to anti-retroviral
drugs was enhanced.
[42]
Part of the overall plan involved the
integration of health care services. Prior to 2002, the Health Authority and
its predecessor had limited ability to provide targeted alcohol and drug
services to the community. The provincial Ministry of Health retained sole
responsibility for adult alcohol and drug treatment services throughout the Province.
In April 2002, the Ministry of Health transferred responsibility for those
services to the regional health authorities. Ms. Hay deposed to the fact that the
change in mandate paved the way for the Health Authority to more wholly
integrate addiction treatment into the spectrum of health care services
delivered by it in the DTES. The Health Authority began its delivery of adult addiction
services in October 2002.
[43]
In September 2002, the Health Authority proposed
a plan which would provide a continuum of services, including harm reduction
and the development of multiple access points for clients with substance abuse
issues. Ms. Hay described the model as a movement away from the traditional
abstinence-based model for addiction services. Her affidavit evidence is instructive:
Although [the Health Authority’s] goal is to support clients to live a
life free from substance abuse, we acknowledge that for many individuals it
takes support across a continuum of services including harm reduction to
realize that goal. The plan was aimed at assisting individuals with active
addictions to make numerous small steps to reduce risky behaviours, improve
their own health and achieve stability. The plan was also to protect the
public from the spread of communicable disease. The plan proposed a continuum
of care for drug users. The continuum of care was based on the premise that
addictions services needed to expand the range of addiction harm reduction,
prevention, intervention and recovery and that [the Health Authority] should
facilitate access to addiction services at all points on the continuum rather than
focussing [sic] predominantly on prevention and recovery as had been
done in the past. The continuum envisioned increased services to both assist
individuals to end drug use and to better protect their health during
the active drug use. The continuum of care envisioned included supervised drug
consumption sites. [Ms. Hay’s emphasis]
[44]
Ms. Hay described the supervised injection site
initiative in the following terms:
[The Health Authority] elected to pursue a supervised injection site to
complement the other health care services developed pursuant to the Addiction Plan.
In June 2001, at the convening of the last [Vancouver Richmond Health Board]
board meeting, the board of directors voted to support Supervised Injection Sites
(SIS) as a vital and necessary part of the continuum of the health care
system. [The Health Authority’s] decision was the product of extensive
community consultations and research which led us to conclude that there was
public demand for a safe injection site in Vancouver. Such a site would assist
[the Health Authority] to meet its healthcare mandate in providing appropriate
and necessary health care to all populations it serves. More specifically, [the
Health Authority’s] research suggested that a safe injection site would
facilitate contact with high-risk injection drug users, provide means to reduce
users' risk of [Injection Drug Use]-related health complications and death, and
assist users to access other health and social services.
[45]
In March 2003, the Health Authority approved the
proposal for a safe injection site and authorized an application to Health
Canada for an exemption under s. 56 of the CDSA that would permit it to
open a safe injection site in the DTES, and to study the outcomes associated
with its operation. Ms. Hay describes the Health Authority’s goals for the
site as follows:
(a) provide
a hygienic facility for injection drug users to inject their drugs under the
supervision of a health care professional;
(b) reduce
the risk of overdose and the number of overdose deaths in the DTES;
(c) reduce
the number of ambulance calls to the DTES for overdose;
(d) reduce
the transmission of blood-borne pathogens including HIV and Hepatitis C;
(e) reduce
the incidents of potentially serious infections leading to conditions such as
endocarditis and osteomyelitis;
(f) reduce
the incidence of soft tissue injuries associated with [Injection Drug Use],
including abscesses and cellulites;
(g) provide
access to needle exchange and sterile injecting equipment;
(h) provide
referrals to other health and social service providers in the area;
(i) connect
participants with peer support services and increase opportunities for health
and social networking;
(j) increase
public order; and
(k) increase
safety and security for the community.
[46]
The exemption requested by the Health Authority was
granted for a three-year term commencing September 12, 2003, extended
shortly before it was due to expire to December 31, 2007, and further extended
on October 2, 2007, to expire June 30, 2008.
B. The Nature of Addiction
[47]
The plaintiffs and Canada agree on one thing:
drug addiction is an illness.
[48]
The Canadian Society of Addiction Medicine
defines addiction as follows:
A primary, chronic disease, characterized by impaired control over the
use of a psychoactive substance and/or behaviour. Clinically, the
manifestations occur along biological, psychological, sociological and
spiritual dimensions. Common features are change in mood, relief from negative
emotions, provision of pleasure, pre-occupation with the use of substance(s) or
ritualistic behaviour(s); and continued use of the substance(s) and/or
engagement in behaviour(s) despite adverse physical, psychological and/or
social consequences. Like other chronic diseases, it can be progressive,
relapsing and fatal.
[49]
The nature of the illness was described in the
affidavit of Dr. David Marsh which was tendered by PHS. Dr. Marsh is a
licensed medical practitioner who holds specialist certificates from the
International, American and Canadian Societies of Addiction Medicine. In
addition to teaching addiction medicine and conducting research into innovative
addiction treatments, Dr. Marsh is the Physician Leader for Addiction Medicine
for the Health Authority; the Medical Director for Addiction, HIV/AIDS and
Aboriginal Health Services for the Vancouver Community area of the Health
Authority; the Division Head, Addiction Medicine, in the Department of Family
and Community Medicine at St. Paul’s Hospital, Vancouver; and the Leader of
Addiction Research at the Centre for Health Evaluation and Outcome Sciences.
In addition he is the physician responsible for the medical supervision of
Insite.
[50]
Dr. Marsh deposed to his opinion that the
bio-chemical effects of narcotics contributed to addiction. In the case of
opioids, including heroin, morphine and hydromorphone, the intensity of
symptoms was a function of the extent to which the dose administered exceeded
an individual’s tolerance level. He described the symptoms of opioid
administration:
…Acute symptoms of
opioid administration include: analgesia, sedation, euphoria, slowed heart
rate, lower blood pressure, warm flushed skin, constricted pupils,
uncoordinated movement and slowed respiratory rate. In a small number of
individuals opioid administration can also unmask or trigger tics, repetitive
automatic movements or choreoathetosis. In amounts far in excess of tolerance,
heroin and other opioids can produce respiratory arrest, cardiovascular
collapse and death.
[51]
Dr. Marsh characterized cocaine and
methamphetamine as stimulants and described the symptoms associated with their
use:
…The symptoms of acute
administration of stimulants include: agitation, increased energy, a feeling
of powerfulness or omnipotence, decreased appetite, decreased ability to
sustain concentration, decreased sleep and rarely psychotic symptoms such as
hallucinations and delusions. In very high amounts, stimulants can lead to
cardiovascular complications such as arrhythmias, myocardial infarction or
stroke any of which can cause death.
[52]
Dr. Marsh deposed to the fact that these
addictive substances affect the release of dopamine in the cells of certain
parts of the brain. He described dopamine as the compound responsible for the
transmission of a signal from one nerve cell to another in certain parts of the
brain. He deposed to his opinion that the repeated administration of the
addictive substances caused the brain to undergo structural and functional
changes that tended to counteract the acute effect of the drugs. The process
of chronic change leads to tolerance such that the person using drugs must take
higher amounts to experience the same effects, and the associated lower
baseline in certain brain systems required an addict to take drugs in order
that the level of function in those systems could be altered to approximate
those of a non-addicted individual.
[53]
Dr. Marsh deposed to his opinion that while the
neuro-chemical effects of addictive substances partially explained addiction, genetic
factors influence the risk of addiction, as do psychological and social
determinants: stress, trauma, sexual and physical abuse, parental neglect and
the effects of behavioural conditioning.
[54]
Dr. Marsh described the process of withdrawal
and deposed to his opinion that the combination of biochemical, psychological
and social stresses that typically affect habitual drug users experiencing
withdrawal put long-term users and “hard core” addicts at high risk of relapse
when they attempt abstinence.
[55]
Finally, Dr. Marsh deposed to his opinion that
when the accumulation of biological, psychological and social factors are taken
together and applied to a population of addicts such as those in the DTES, the
route to long-term abstinence would be a long and difficult process
characterized by many treatment attempts and a high, life-long risk of return
to drug use:
Rather than focusing
on long-term abstinence as the only indication of success, therefore, a range
of health interventions can be implemented which each contribute to improving
the health and social functioning of these individuals by preventing adverse
physical complications of drug use (such as HIV infection). …
[56]
Canada responded to Dr. Marsh’s evidence with
the affidavit of Dr. Frank Evans, an addiction specialist certified by the
American Society of Addiction Medicine. He practises addiction medicine on a
full-time basis and has worked and trained at eleven addiction treatment
facilities. He is currently the President of the Canadian Society of Addiction
Medicine responsible for the certification and training of physicians in
addiction medicine. His curriculum vitae portrays a wide range of practice and
involvement with addiction medicine with a special interest in the treatment of
addiction in professionals, including health professionals and airline pilots. Neither
his affidavit nor his curriculum vitae identifies the extent of his experience
with persons who possess the genetic, psychological and sociological characteristics
prevalent in the DTES.
[57]
Dr. Evans did not dispute much of Dr. Marsh’s
opinion. He deposed to the fact that some addiction medicine specialists, of
which he was one, viewed abstinence-based treatment as the best course, while
other specialists believed that “harm reduction” was a more realistic and
practical therapeutic approach because abstinence may not be achievable for
very chronic and severe addictions. He disagreed with Dr. Marsh’s opinion on
the effect of prolonged ingestion on the brain and the life-long risk of
relapse:
I agree … that changes
in the brain take place with repeated use of opioids that lead to increasing
tolerance and the need for higher dosages to achieve a similar affect [sic].
However, increased tolerance reverses to normal levels after the person has
been abstinent for some period of time.
… I do not agree with
[Dr. Marsh’s] proposition that opioid-addicted patients will likely continue to
relapse over their lifetimes due to other permanent, irreversible and chronic
brain changes from narcotic (opioid) usage. This propensity to relapse from
any addiction has not been proved to be the result of permanent brain changes
or neurosystem deficits.
[58]
Dr. Evans deposed to his primary concern that the
harm reduction as opposed to the abstinence-based approach can actually or
potentially cause harm by enabling continuation of an addictive disease, and by
delaying a potential change to a safer behaviour, such as abstinence.
[59]
I do not need to attempt to finally assess or
decide upon the merits of the competing positions regarding harm reduction and
abstinence-based programs for addicts. The differing opinions point to the
fact that in medicine, as in other disciplines, there is room for a difference
in view. I do observe, however, that Dr. Marsh's experience with persons of
the kind resident in the DTES is markedly greater than that of Dr. Evans who,
as I have noted, is most closely associated with health care professionals and
airline pilots, a significantly different group from injection drug users in
the DTES. The correlation between Dr. Marsh’s opinion and reality is
reflected in the circumstances of the plaintiffs, Mr. Wilson and Ms. Tomic.
C. Dean Edward Wilson and Shelly Tomic
[60]
Mr. Wilson and Ms. Tomic are residents of the
DTES. They are described as representative users of Insite. Their affidavit
evidence sets forth their personal histories and describes their illnesses.
Canada did not challenge the evidence of either individual.
[61]
Mr. Wilson is 51 years of age and unemployed.
He first began using heroin when he was 12 years old. He has been injecting
heroin for 38 years and cocaine for 35 years. He has lived in the DTES for the
last ten years and has resided in a single room at the Sunrise Hotel, a
residential hotel run by PHS, since 2000.
[62]
Mr. Wilson has enrolled in a detoxification
program at least once a year for the past 37 years. He has participated in
approximately 25 treatment programs. He has been on and off a methadone
program for the last ten years, and in the last three years has been able to go
without using heroin for periods of up to 30 days. When on methadone, he has
continued to inject cocaine.
[63]
Dr. Gabor Maté, who supervises Mr. Wilson's
methadone program, has assessed Mr. Wilson as both physically and
psychologically addicted to heroin and cocaine.
[64]
In 2006, Mr. Wilson was president of the B.C.
Association of Persons on Methadone. He served as the president of VANDU from
2000 until 2003. He was re-elected to the Board in September 2007. He was the
Co-Chair of the Harm Reduction Action Society from 2002 to 2003 and sat on the
Ministerial Council for HIV/AIDS for Canada from 2001 to 2004.
[65]
Ms. Tomic is 39 years of age. She was born and
raised in the vicinity of Calgary, Alberta, addicted to speed because her
mother had been addicted to the substance throughout pregnancy. Ms. Tomic’s
first experience with illegal drugs occurred when she was seven years old. A
relative injected her with speed which she continued to use throughout her
childhood.
[66]
Ms. Tomic first came to Vancouver when she was
13 or 14 years of age. She continued to use speed and a combination of Talwin
and Ritalin throughout her teens. She began injecting cocaine at the age of 19
or 20 when she was living in the DTES. An acquaintance gave her the first
injection. Ms. Tomic resorted to prostitution in order to obtain funds to buy
cocaine.
[67]
Ms. Tomic first experienced heroin when she was
26 or 27 years of age. She bought drugs from a dealer believing she was buying
cocaine. Shortly after injection, she realized that she had been provided with
heroin which has since been her drug of choice, although she admits to smoking
crack cocaine since it became readily available in the DTES.
[68]
Ms. Tomic describes herself as one who has been
a regular heroin user for about 12 or 13 years. She started using methadone in
the spring of 2007, a step she attributes to Insite. As of January 2008, Ms.
Tomic was using heroin only when, for one reason or another, she had been
unable to obtain her methadone dose “on time”. She says she gets "dope
sick" if she has neither methadone nor heroin. She describes dope
sickness as follows:
…Dope sickness is like having pneumonia, the flu and food poisoning all
at once. It makes you feel sick to your stomach, sometimes to the point where
you throw up and you get fever, chills and severe achiness. I have injected
heroin when I have been dope sick to get functional again.
[69]
Ms. Tomic has never overdosed to the point of
losing consciousness. She has suffered from abscesses and skin problems over
the years as a result of needle use. She developed endocarditis, a deep tissue
infection that affects the heart. She attributes the infection to the
injection process. She was paralyzed by the infection for a period of two
years and unable to walk. She has been able to regain the use of her legs but
suffers from disabling arthritis.
[70]
Ms. Tomic is Hepatitis C-positive, a fact she
has known for approximately 15 years. She does not have HIV or AIDS.
D. The Operation of Insite
[71]
Insite is located on East Hastings Street
between Carrall and Main Streets. It is open daily from 10:00 a.m. to 4:00 a.m.
the following day. The facility is known to DTES residents. Police refer
addicts to it. Insite operates under an extensive and detailed operating protocol
approved by Health Canada. It is staffed by a combination of PHS, Health
Authority and community workers.
[72]
Users must be 16 years of age or over, must sign
a user agreement, release and consent form, must agree to adhere to a code of
conduct, and cannot be accompanied by children. Users must register at each
visit to the site and each is asked to identify the substance that will be
injected. No substances are provided by staff. It goes without saying that
the substances brought to Insite by users have been obtained from a trafficker
in an illegal transaction. Users are obviously in possession of their substance
en route to Insite. Approximately 60% of the drugs injected are opioids, of
which two-thirds are heroin and one-third morphine or hydromorphone.
Approximately 40% of injected drugs are stimulants, approximately 90% of which
are cocaine and 10%, methamphetamine.
[73]
Insite has 12 injection bays. Users are
provided with clean injection equipment which is the only equipment that can be
used at the site. Users are monitored by staff during injection. Nurses and
paramedical staff provide treatment in the event of overdose and contact a
physician and the ambulance service as necessary. Overdoses vary in severity and
treatment.
[74]
The protocol permits pregnant women to use
Insite. They are required to undergo a more intensive assessment than others before
being allowed access to the injection room. Those women are also referred to a
clinic and child daycare facilities directly managed by the Health Authority,
which provides pre- and post-natal care to pregnant women who are actively
using illegal substances.
[75]
Users who have completed an injection are
assessed by staff. They may be discharged to the “chill-out” lounge or treated
by a nurse in the treatment room for injection-related conditions. Users
requiring extensive or ongoing care are referred to the closest primary care
facility, either the Downtown Community Health Centre or the Pender Clinic.
[76]
Staff and support workers interact with users at
Insite on a one-to-one basis. Users are provided with health care
information, counselling and referrals to Health Authority and other service
providers. Records indicate that in 2005, 2006 and 2007, staff made 2,270,
1,828, and 2,269 referrals, respectively, to community clinic, hospital
emergency, outpatient medical mental health, emergency shelter and community
services; and to addiction counselling, housing, withdrawal, methadone
treatment, drug recovery, and miscellaneous other services.
[77]
Since the fall of 2007, the staff has also been
able to refer users to “Onsite”, a detox centre located above Insite which permits
Insite to provide detox on demand. Onsite is a drug free environment supported
by physicians who are addiction specialists and general practitioners, nurses
and peers. Users may also be referred to residential detox and additional
treatment services.
E. The Assessment of Outcomes
[78]
Ms. Hay deposes to the fact that more than one
million injections have occurred at Insite. Staff have managed in excess of
1,000 overdoses without any resulting fatalities to date. A variety of statistics
is available on the total number of visits, the average number of daily visits,
and the number of overdose interventions, nursing interventions, and referrals
to other services. As with most statistics, the conclusions to be drawn from
them are debatable. I see nothing to be gained by reproducing any of the raw
data which is generally available in any event.
[79]
The plaintiffs tendered affidavits from a number
of medical practitioners who have endeavoured to assess the efficacy of Insite:
1. Dr. Thomas Kerr, assistant professor cross-appointed to the
Departments of Medicine and Healthcare and Epidemiology at the University of
British Columbia, co-principal investigator of the Scientific Evaluation of
Supervised Injecting (“SEOSI”) study pertaining to Insite, and the author of 22
peer-reviewed research papers documenting the impact of Insite;
2. Dr. Julio Montaner, professor of Medicine at the University
of British Columbia, the Director of the BC Centre for Excellence in HIV/AIDS (the
“Centre”) at St. Paul’s Hospital, Vancouver which was selected by Health Canada
to evaluate Insite over a three-year period from 2003 to 2006; and
3. Dr. Evan Wood, a clinical assistant professor
cross-appointed to the Departments of Medicine and Healthcare and Epidemiology,
at the University of British Columbia, holder of a PhD. in Epidemiology and a
research scientist at the Centre engaged in the SEOSI study.
[80]
In addition to deposing to and describing some
of the objective evidence accumulated over the period during which Insite has
operated, these physicians deposed generally to their opinions that Insite
serves a beneficial purpose.
[81]
Canada tendered affidavits from persons in
response:
1. Dr. Harold Kalant, M.D., PhD., Professor Emeritus in
Pharmacology at the University of Toronto, and Director Emeritus (Biobehavioral
Studies) at the Centre for Addiction and Mental Health; and
2. Nathan Lockhart, Senior Policy Analyst in the Drug Strategy
and Controlled Substances Healthy Environment and Consumer Safety Branch of
Health Canada.
[82]
Neither individual deposed to any specific
observations about Insite or their individual assessment of its efficacy. Dr.
Kalant did not depose to any personal knowledge regarding Insite, or to
involvement in any aspect of its operations. Mr. Lockhart’s evidence was
confined primarily to an outline of the evolution of Canada’s drug policy.
[83]
I do not propose to embark upon a review of the
opinions expressed by any of the professionals on behalf of the plaintiffs or
Canada with a view to resolving differences in order to decide where the
balance lies. I do not doubt that there is room for divergent opinions in the
debate about the efficacy of safe injection sites generally and Insite in
particular. I do harbour doubt on the question of whether any investigation,
however thorough, can provide answers that will scientifically resolve or reconcile
the differences.
[84]
The report of the EAC created by the Federal
Minister of Health is instructive. The Committee described its role in the
following terms:
…The task of the EAC was to solicit evidence-based scientific and
ethical data to ensure that the information needs of the Health Minister’s
Office were met. The primary role of the EAC was to help guide the development
and implementation of the [Safe Injection Site] research plan and then to
distil and synthesize the key research findings into a final report for the
Minister. The EAC had no decision-making authority and were [sic] not
responsible for making formal recommendations.
[85]
The EAC reported consensus among its members on
a number of issues: over 8,000 people have visited Insite to inject; 18% of
that total account for 86% of overall visits; the median number of visits was
8; Insite operated near capacity; approximately 80% of daily visits are for
injecting and 20% for support services; Insite injections account for less than
5% of total injections in the DTES; Insite provides a clean, supervised
environment for injection where the sharing of drugs and needles is not
permitted; Insite provides nursing services; users rated the services as highly
satisfactory and the staff as helpful, trustworthy and respectful; letters of
support and surveys show that health professionals, local police, the local
community and the general public have positive or neutral views on Insite and
the majority wish to see the service continue; Insite encourages users to seek
counselling, detoxification and treatment; the presence of Insite facilitated
the immunization of injection drug users in the DTES during an outbreak of pneumococcal
pneumonia in 2006; Insite had successfully intervened in over 336 overdose
events since 2006 and no overdose deaths had occurred at the site; self-reports
from Insite users indicate that needle sharing decreases with increased use of
the site but mathematical modelling made it difficult to accurately estimate
the number of HIV cases that might have been prevented; observations in the
period before and shortly after the opening of Insite indicated a reduction in
the number of people injecting in public; there was no evidence of increases in
drug-related loitering, drug dealing or petty crime in areas around Insite; the
Chinese Business Association reported reductions in crime in the Chinese
business district outside the DTES and police data showed no changes in rates
of crime recorded by police for the DTES; there was no evidence that Insite
increased the relapse rate among injection drug users; and the cost/benefit
analysis was favourable.
[86]
The EAC’s criticisms of the research, which
provided the basis for the consensus, were benign. They were stated in the following
terms:
Caution should be exercised in using mathematical modelling for
assessing [sic] cost benefit/effectiveness [sic] of INSITE given
that:
•
There was limited local
data available regarding baseline frequency of injection, frequency of needle
sharing and other key variables used in the analysis;
•
While some longitudinal
studies have been conducted, the results have yet to be published and may never
be published given the overlapping design of the cohorts;
•
No studies have
compared INSITE with other methods that might be used to increase referrals to
detoxification and treatment services, such as outreach, enhanced needle
exchange service, or drug treatment courts
Some user characteristics relevant to understanding their needs and
monitoring change have not been reported including details of baseline
treatment histories, frequency of injection and frequency of needle sharing.
User characteristics and reported changes in injection practices are
based on self-reports and have not been validated in other ways. More
objective evidence of sustained changes in risk behaviours and a comparison or
control group study would be needed to confidently state that INSITE and [safe
injection sites] have a significant impact on needle sharing and other risk
behaviours outside of the site where the vast majority of drug injections still
take place.
There are a number of issues where future research could inform policy
decisions, including research on the social determinants of injection drug
users.
[87]
Whatever the shortcomings in the science
surrounding the assessment of outcomes at Insite, and however the disputes may
be resolved among those who engage in the assessment of the efficacy of safe
injection sites generally, or Insite in particular, all of the evidence adduced
by PHS, VANDU and Canada supports some incontrovertible conclusions:
1. Addiction
is an illness. One aspect of the illness is the continuing need or craving to
consume the substance to which the addiction relates.
2. Controlled substances such
as heroin and cocaine that are introduced into the bloodstream by injection do
not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment,
techniques, and procedures for injection permits the transmission of those infections,
illnesses or diseases from one individual to another; and
3. The risk of morbidity and mortality associated
with addiction and injection is ameliorated by injection in the presence of
qualified health professionals.
[88]
What is less certain and more controversial are
the root causes of addiction. The evidence adduced in these proceeding regarding
the character of the DTES, many of its inhabitants, and the nature of addiction
leads me to the following assessment.
[89]
Residents of the DTES who are addicted to
heroin, cocaine, and other controlled substances are not engaged in
recreation. Their addiction is an illness frequently, if not invariably,
accompanied by serious infections and the real risk of overdose that compromise
their physical health and the health of other members of the public. I do not
assign or apportion blame, but I conclude that their situation results from a complicated
combination of personal, governmental and legal factors: a mixture of genetic,
psychological, sociological and familial problems; the inability, despite
serious and prolonged efforts, of municipal, provincial and federal governments,
as well as numerous non-profit organizations, to provide meaningful and
effective support and solutions; and the failure of the criminal law to prevent
the trafficking of controlled substances in the DTES as evidenced by the
continuing prevalence of addiction in the area.
IV. Analysis
A. The
VANDU Claim for Declarations
[90]
VANDU seeks a declaration that the conduct of
the staff in the ordinary course of business at Insite does not amount to or
involve the commission of any offences at law, with the result that an
exemption under s. 56 of the CDSA is not required or necessary. The
argument proceeds on the premise that the activities of the staff at Insite do
not constitute possession or trafficking for purposes of the CDSA.
[91]
Section 4(1) of the CDSA provides as
follows:
4(1) Except as authorized under the regulations, no person shall
possess a substance included in Schedule I, II or III.
[92]
For purposes of the CDSA, “possession” has
the meaning assigned by s. 4(3) of the Criminal Code:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has
it in his personal possession or knowingly
(i) has it in the actual possession or
custody of another person, or
(ii) has it in any place, whether or not
that place belongs to or is occupied by him, for the use or benefit of himself
or of another person; and
(b) where one of two or more persons, with the
knowledge and consent of the rest, has anything in his custody or possession,
it shall be deemed to be in the custody and possession of each and all of them.
[93]
Sections 5(1) and (2) of the CDSA
provide:
5(1) No person shall traffic in a substance included in Schedule
I, II, III or IV or in any substance represented or held out by that person to
be such a substance.
(2) No person shall, for the purpose of trafficking, possess a
substance included in Schedule I, II, III or IV.
[94]
The word "traffic" is defined by s.
2(1) of the CDSA:
""traffic" means, in respect of a substance included in
any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport,
send or deliver the substance,
(b) to
sell an authorization to obtain the substance, or
(c) to
offer to do anything mentioned in paragraph (a) or (b).
[95]
The law pertaining to the possession and
trafficking of controlled substances has been developed in the decided cases
and is well established. If the provisions of s. 4(1) and s. 5(1) apply to the
staff at Insite, the answer to the question of whether, in the course of what
they do, they either possess or traffic in a controlled substance at any
particular point in time must be answered by reference to the facts as they are
determined in relation to any specific action or conduct and the law as it has
evolved. That being the case, declaratory relief cannot be considered.
[96]
The Court of Appeal discussed the court's
capacity to grant declaratory relief in Lee v. Li, 2002 BCCA 209 (CanLII), 2002 BCCA 209, 113
A.C.W.S. (3d) 192 at para. 19:
[19] An action for a declaration must be in relation to a right
and must have some utility: see Canada v. Solosky, 1979 CanLII 9 (S.C.C.), [1980] 1 S.C.R. 821,
where at 832 Dickson J., for the majority, quotes with approval from a learned
author on the relevant factors:
As Hudson
suggests in his article, "Declaratory Judgments in Theoretical Cases: The
Reality of the Dispute" (1977), 3 Dal.L.J. 706:
The declaratory action is
discretionary and the two factors which will influence the court in the
exercise of its discretion are the utility of the remedy, if granted, and
whether, if it is granted, it will settle the questions at issue between the
parties.
[97]
Other statements by the Supreme Court of Canada
in Solosky v. The Queen, 1979 CanLII 9 (S.C.C.), [1980] 1 S.C.R. 821 at 830-832, 105 D.L.R. (3d)
745 are relevant:
Declaratory relief is a remedy neither constrained by form nor bounded
by substantive content, which avails persons sharing the legal relationship, in
respect of which a 'real issue' concerning the relative interest of each has
been raised and falls to be determined: …
The question must be a real and not a theoretical question, the person
raising it must have a real interest to raise it, he must be able to secure a
proper contradictor, that is to say, someone presently existing who has a true
interest to oppose the declaration sought: Russian Commercial and Industrial
Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 at 448. …
...[I]f a substantial question exists which one person has a real
interest to raise, and the other to oppose, then the court has a discretion to
resolve it by a declaration, which it will exercise if there is good reason for
so doing: Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government,
[1958] 1 Q.B. 554 (rev'd [1960] A.C. 260, on other grounds). …
…[C]ourts will not grant declarations regarding the future.
[98]
In present circumstances, where the legal
principles that apply to possession and trafficking are settled, where the
question of whether one possesses or is trafficking in controlled substances is
fact-dependent, and where the ordinary course of business is not fixed with
precision and may change in the future, the declaration is sought in respect of
future events and would serve no useful purpose. Although the staff at Insite have
a real interest in knowing whether what they do in any particular circumstances
constitutes a criminal offence, judicial discretion cannot be used to answer
the question one way or the other by way of a declaration “in the air” which
would have no utility.
[99]
The VANDU application for the declaration in
relation to staff conduct is dismissed.
B. The
PHS Claim Regarding Interjurisdictional Immunity
[100] PHS and VANDU, supported by the British Columbia Civil Liberties
Association as an intervenor, claim that ss. 4(1) and 5(1) of the CDSA
do not apply to users or staff at Insite because of the doctrine of interjurisdictional
immunity. The claim is framed as follows:
(a) By
design and in effect Insite is a health care undertaking within the core of provincial
constitutional jurisdiction over health care pursuant to s. 92(16) of the Constitution
Act, 1867, or some combination of ss. 92(7), (13) and (16).
(b) While
ss. 4(1) and 5(1) of the CDSA are valid legislation under the federal
power to enact criminal law pursuant to s. 91(27) of the Constitution Act,
1867, the application of those provisions to users and staff at Insite
materially intrudes on a vital part of a validly constituted provincial
undertaking, or the core of the Province's jurisdiction over health care.
(c) The
doctrine of interjurisdictional immunity applies to protect Insite from this
intrusion of the criminal law on provincial jurisdiction and renders ss. 4(1)
and 5(1) of the CDSA constitutionally inapplicable to users and staff
who, respectively, receive and deliver health care services.
(d) Sections
4(1) and 5(1) of the CDSA should be "read down” so that they do not
apply to staff and users at Insite.
[101] Canada responds, saying:
1. The
fact the Province is competent to legislate in respect of matters of health and
health care does not preclude the application of federal law to such
activities.
2. There
is nothing inherently constitutionally offensive with an overlap between the
federal criminal law power in the area of health, and provincial authority with
respect to health care.
3. The
double aspect doctrine and when necessary, the doctrine of federal paramountcy,
permit the joint regulation of conduct throughout Canada.
(i) The
Constitutional Framework
[102] In order to place the PHS claim in context, a brief and greatly
over-simplified summary of the legal principles applying to constitutional questions
of this kind is required.
[103] Section 91 of the Constitution Act, 1867, assigns to the
federal Parliament the power to make laws for the peace, order and good
government of Canada in relation to all matters not coming within the classes
of subjects exclusively assigned by s. 92 to the legislatures of the Provinces.
In addition to assigning this general residuary power, s. 91 enumerates certain
classes of subjects over which Parliament has exclusive legislative
authority. One such exclusive federal power is criminal law: s. 91(27).
[104] Included in the powers assigned exclusively to the provincial
legislatures under s. 92 are the following:
(7) The
establishment, maintenance and management of hospitals, asylums, charities and
eleemosynary [charitable] institutions in and for the Province, other than
marine hospitals.
(13) Property and civil rights of the Province.
(16) Generally all matters of a merely local or private nature in
the Province.
[105] The manner in which the division of powers should be construed and
managed in a federal context has evolved through judgments of the Supreme Court
of Canada since Confederation. The topic has been the subject of extensive
academic commentary and debate. The governing principles were recently discussed
by the Supreme Court of Canada in Canadian Western Bank v. Alberta,
2007 SCC 22 (CanLII), [2007] 2 S.C.R. 3, 2007 SCC 22, and (British Columbia) Attorney General v.
Lafarge Canada Inc., 2007 SCC 23 (CanLII), [2007] 2 S.C.R. 86, 2007 SCC 23, which were released
concurrently.
[106] The Court discussed the concept of federalism and the balance
between provincial and federal legislative power in Canadian Western Bank
at paras. 22 to 24:
22 …[F]ederalism was the legal response of the
framers of the Constitution to the political and cultural realities that
existed at Confederation. It thus represented a legal recognition of the
diversity of the original members. The division of powers, one of the basic
components of federalism, was designed to uphold this diversity within a single
nation. Broad powers were conferred on provincial legislatures, while at the
same time Canada's unity was ensured by reserving to Parliament powers better
exercised in relation to the country as a whole. Each head of power was
assigned to the level of government best placed to exercise the power. The
fundamental objectives of federalism were, and still are, to reconcile unity
with diversity, promote democratic participation by reserving meaningful powers
to the local or regional level and to foster co-operation among governments and
legislatures for the common good.
23 To
attain these objectives, a certain degree of predictability with regard to the
division of powers between Parliament and the provincial legislatures is
essential. For this reason, the powers of each of these levels of government
were enumerated in ss. 91 and 92 of the Constitution Act, 1867 or
provided for elsewhere in that Act. As is true of any other part of our
Constitution -- this "living tree" as it is described in the famous
image from Edwards
v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136
-- the interpretation of these powers and of how they interrelate must evolve
and must be tailored to the changing political and cultural realities of
Canadian society. It is also important to note that the fundamental principles
of our constitutional order, which include federalism, continue to guide the
definition and application of the powers as well as their interplay. Thus, the
very functioning of Canada's federal system must continually be reassessed in
light of the fundamental values it was designed to serve.
24 As the
final arbiters of the division of powers, the courts have developed certain
constitutional doctrines, which, like the interpretations of the powers to
which they apply, are based on the guiding principles of our constitutional
order. The constitutional doctrines permit an appropriate balance to be struck
in the recognition and management of the inevitable overlaps in rules made at
the two levels of legislative power, while recognizing the need to preserve
sufficient predictability in the operation of the division of powers. The
doctrines must also be designed to reconcile the legitimate diversity of
regional experimentation with the need for national unity. Finally, they must
include a recognition that the task of maintaining the balance of powers in
practice falls primarily to governments, and constitutional doctrine must
facilitate, not undermine what this Court has called "co-operative
federalism" (Husky Oil Operations Ltd. v. Minister of National Revenue,
1995 CanLII 69 (S.C.C.), [1995] 3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23,
2005 SCC 56 (CanLII), [2005] 2 S.C.R. 669, 2005 SCC 56, at para. 10). …
[107] The resolution of disputes regarding the constitutionality of
impugned legislation begins with the identification of the "pith and
substance" of the legislation. Pith and substance is determined by
reference to the purpose for which the legislative body acts and the legal
effect of the law: Canadian Western Bank, para. 27.
[108] The need to identify pith and substance recognizes that legislation
may touch upon matters that fall outside the exclusive legislative authority of
the enacting body. In such circumstances, the court must be determined to
identify the "dominant purpose" of the legislation: Canadian
Western Bank at para.28:
...[T]he "dominant purpose" of the legislation is still
decisive. Its secondary objectives and effects have no impact on its
constitutionality: "merely incidental effects will not disturb the
constitutionality of an otherwise intra vires law" (Global Securities Corp. v. British Columbia
(Securities Commission), 2000 SCC 21 (CanLII), [2000] 1 S.C.R. 494, 2000 SCC 21, at
para. 23). By "incidental" is meant effects that may be of significant
practical importance but are collateral and secondary to the mandate of the
enacting legislature: see British
Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (CanLII), [2005] 2 S.C.R. 473,
2005 SCC 49, at para. 28. Such incidental intrusions into matters subject to
the other level of government's authority are proper and to be expected: General Motors of Canada Ltd. v.
City National Leasing, 1989 CanLII 133 (S.C.C.), [1989] 1 S.C.R. 641, at p. 670.
[109] In some instances it is difficult to determine whether the subject
matter of the legislation pertains to a topic assigned exclusively to the federal
Parliament or provincial legislatures because the topic shares aspects of
both. This fact has given rise to what is known as the "double aspect
doctrine" described in Canadian Western Bank at para. 30:
[30] The double aspect doctrine, as it is known, which applies in
the course of a pith and substance analysis, ensures that the policies of the
elected legislators of both levels of government are respected. A classic
example is that of dangerous driving: Parliament may make laws in relation to
the "public order" aspect, and provincial legislatures in relation to
its "Property and Civil Rights in the Province" aspect (O'Grady v. Sparling,
1960 CanLII 70 (S.C.C.), [1960] S.C.R. 804). The double aspect doctrine recognizes that both Parliament
and the provincial legislatures can adopt valid legislation on a single subject
depending on the perspective from which the legislation is considered, that is,
depending on the various "aspects" of the "matter" in
question.
[110] To avoid inappropriate encroachment by one legislative body upon the
jurisdiction of another, various techniques including "reading down",
"interjurisdictional immunity" and "paramountcy" come into
play. The principles are discussed in Canadian Western Bank at paras.
31-32:
31 When problems
resulting from incidental effects arise, it may often be possible to resolve
them by a firm application of the pith and substance analysis. The scale of the
alleged incidental effects may indeed put a law in a different light so as to
place it in another constitutional head of power. The usual interpretation
techniques of constitutional interpretation, such as reading down, may then
play a useful role in determining on a case-by-case basis what falls
exclusively to a given level of government. In this manner, the courts
incrementally define the scope of the relevant heads of power. The flexible
nature of the pith and substance analysis makes it perfectly suited to the
modern views of federalism in our constitutional jurisprudence.
32 That being said, it
must also be acknowledged that, in certain circumstances, the powers of one
level of government must be protected against intrusions, even incidental ones,
by the other level. For this purpose, the courts have developed two doctrines.
The first, the doctrine of interjurisdictional immunity, recognizes that our
Constitution is based on an allocation of exclusive powers to both levels of
government, not concurrent powers, although these powers are bound to interact
in the realities of the life of our Constitution. The second, the doctrine of
federal paramountcy, recognizes that where laws of the federal and provincial
levels come into conflict, there must be a rule to resolve the impasse. Under
our system, the federal law prevails. …
[111] The origin of the doctrine of interjurisdictional immunity, its
nature, and its extent were described in Canadian Western Bank at para.
33:
33 Interjurisdictional immunity
is a doctrine of limited application, but its existence is supported both
textually and by the principles of federalism. The leading modern formulation
of the doctrine of interjurisdictional immunity is found in the judgment of
this Court in Bell
Canada (1988) where Beetz J. wrote that "classes of
subject" in ss. 91 and 92 must be assured a "basic, minimum and
unassailable content" immune from the application of legislation enacted
by the other level of government.
(ii) The
Constitutional Analysis
[112] In the context of this constitutional framework, PHS concedes that
ss. 4(1) and 5(1) of the CDSA are concerned with suppressing the
availability of drugs that have harmful effects on human health, and that the
provisions have been lawfully enacted by Parliament as, in pith and substance,
they represent a use of its criminal law power.
[113] The question then is whether the purpose and object of Insite are
immune from the reach of criminal law because of interjurisdictional immunity,
or whether, because the provincial policy conflicts with a federal power, the
federal law will prevail because of the doctrine of paramountcy.
[114] PHS argues that Insite is a carefully considered and developed health
care facility initiated by the Health Authority, in its capacity as a delegate
of the provincial legislature, and in furtherance of the provincial power to
govern matters of health in the Province. It says that Insite is the product
of a detailed assessment of the personal and public health consequences of
injection drug use in the DTES, and the best health care delivery technique to
address those issues. As such, it is part of the core area of health care over
which the Province has exclusive jurisdiction and which the federal Parliament
cannot impair.
[115] Counsel on behalf of PHS frames its claim in this manner:
…[T]he provincial interest in ensuring that the Health Authority can
fulfill its fundamental mandate of providing effective and responsive health
care to local populations is part of the "basic minimum and unassailable
content" of the Province's legislative power over the delivery of health
care services. This "core" competence must be preserved to make the
power effective for the purpose for which it was conferred.
PHS says that permitting the CDSA
to override the Province’s concern and responsibility for health care within a
very local community by turning injection drug users away from the health care
door intrudes upon the Province’s core responsibility and the incursion must be
prevented by invoking the doctrine of interjurisdictional immunity.
[116] In response, Canada says that Parliament has a compelling state
interest in prohibiting the injection of controlled substances, in part because
of their adverse effects on individual and community health. Canada says that
the reach of the CDSA, which has the effect of criminalizing injection, has
but an incidental effect on the provincial domain of health care. Permitting
Insite to continue its operations will create a safe haven from the criminal
law and undermine its national objective and importance.
[117] The difficulty in this case results from the fact that the CDSA
prohibition against possession indirectly controls injection, which is not proscribed
by the criminal law, and in doing so, has an incidental effect upon a vital
part of a provincial health care undertaking. As a result, the federal power
to legislate in relation to criminal law, and the power of a provincial delegate
to provide health care services meet head-to-head in conflict. This is a
classic case of “double aspect”. That being the case, the doctrine of
interjurisdictional immunity cannot be applied.
[118] The Supreme Court of Canada has said that the doctrine should be
used sparingly, and not used where the subject matter presents a double aspect:
British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23 (CanLII), [2007] 2
S.C.R. 86, 2007 SCC 23 at para. 4. While the Court has also said that
the doctrine is reciprocal in that it can prevent legislation by the provincial
government in relation to the essential and vital elements of a federal power,
and vice versa, it has been most often, if not always, applied to ensure that provincial
legislation does not encroach upon the core of a federal power or undertaking. As
the Court stated in Canadian Western Bank at para.78, “in practice, the
absence of prior case law favouring the application [of interjurisdictional
immunity] to the subject matter at hand will generally justify a court
proceeding directly to the consideration of federal paramountcy.”
[119] When confronted with a double aspect, the court must strive to give
legitimacy to both legislative initiatives: Canadian Western Bank at
para. 37. In this case, however, the operation of the provincial undertaking,
which is concerned with health care, interferes with or directly confronts the
operation of the criminal law by permitting the possession of controlled
substances at Insite contrary to the CDSA, which prohibits possession in
all circumstances. While Parliament has some capacity to affect the supply and
delivery of health care, the Province has no capacity to override the criminal
law by creating an environment in which individuals can conduct themselves free
of its constraints.
[120] Because there is operational conflict between the Province’s
initiatives in health care and the criminal law which is directed in part to
health, the conflict must be resolved by application of the doctrine of
paramountcy. Absent Charter considerations, the criminal law must
prevail.
[121] The PHS and VANDU applications for declarations that ss. 4(1) and
5(1) of the CDSA do not apply to Insite on the basis of
interjurisdictional immunity are dismissed.
C. The Charter: Section 7
[122] The question to be addressed and answered may be stated as follows:
Does the criminalization of the possession
of controlled substances within the premises of the Vancouver Safe Injection
Site violate s. 7 of the Charter of Rights and Freedoms?
[123] Section 7 provides as follows:
7. 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.
(i) The
Competing Claims and the Legal Context
[124] The plaintiffs claim that because s. 4(1) of the CDSA imposes
an absolute and unqualified prohibition on the possession of controlled substances,
it prevents access to Insite, a health care facility that reduces or eliminates
the risk of death from an overdose and the risk of infectious disease, by
persons who are ill with an addiction, thereby violating the right to life and
security of the person. They also say that because users of Insite risk
incarceration while seeking health care services, the right to liberty is
violated. They say that the violations do not accord with the principles of
fundamental justice.
[125] Canada says that the federal Parliament is empowered to prohibit the
possession of controlled substances without regard for the circumstances
because of their dangerous nature and the state’s compelling interest in
controlling their use, an interest share by the world and formalized in
international treaties:
Simply put, there is
no constitutional right to the non-medical injection of hard drugs. The CDSA
does not in any event provide the plaintiffs with a stark choice between
committing a crime and obtaining medical treatment, as the plaintiffs would
suggest. The CDSA does not prevent medical treatment for addiction, and the
unbridled injection of illegal rugs, the activity at the SIS which the CDSA
does prohibit, is not a form of medical treatment for drug addiction.
[126] Canada says that if s. 4(1) contravenes s. 7, then it is saved by s.
1 of the Charter because the absolute prohibition is a reasonable limit prescribed
by law on the right to life, liberty, and security of the person as can be
demonstrably justified in a free and democratic society.
[127] Two decided cases are of particular importance in the present
circumstances: R. v. Parker 2000 CanLII 5762 (ON C.A.), (2000), 49 O.R. (3d) 481, [2000] O.J. No.
2787 (Ont. C.A.), and R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 (CanLII), [2003] 3
S.C.R. 571, 2003 SCC 74.
[128] In Parker, the Ontario Court of Appeal held that the
prohibition against the possession of marijuana for use as a medical antidote
to epilepsy violated s. 7 of the Charter and was not saved by s. 1. Parker
was not appealed to the Supreme Court of Canada. Rather, Parliament
responded by promulgating the Marihuana Medical Access Regulations,
SOR/2001-227.
[129] In Malmo-Levine, the Supreme Court of Canada considered a Charter
challenge to the general prohibition imposed by the CDSA against the
simple possession of marijuana for recreational purposes. The Court held that
s. 4(1), in the context of that purpose, did not infringe s. 7.
[130] Several principles emerge from Malmo-Levine:
1. The prohibition
against the use of marijuana for recreational purposes is supported under the
criminal law power conferred upon Canada by s. 91(27) of the Constitution
Act, 1867: para. 72.
2. The federal
criminal law power has been broadly construed:
A crime is an act
which the law, with appropriate penal sanctions forbids; but as prohibitions
are not enacted in a vacuum, we can properly look for some evil or injurious or
undesirable effect upon the public against which the law is directed. That
effect may be in relation to social, economic or political interests; and the
legislature has had in mind to suppress the evil or to safeguard the interest
threatened.
Malmo-Levine, para. 73 citing Reference re Validity of
s. 5(a) of the Dairy Industry Act, 1948 CanLII 2 (S.C.C.), [1949] S.C.R. 1.
3. The harm
attributed to the non-medical use of marijuana is the "evil or injurious
or undesirable effect" to which the CDSA is directed and is a lawful
and proper use of the legislative competence conferred under s. 91(27) of
the Constitution Act, 1867: paras. 73 and 78.
4. The availability
of imprisonment for the offence of simple possession is sufficient to trigger
s. 7 scrutiny: para. 84.
5. Liberty is
afforded individuals in respect of matters that "can properly be
characterized as fundamentally or inherently personal such that, by their very
nature, they implicate basic choices going to the core of what it means to
enjoy individual dignity and independence": para. 85, citing Godbout v.
Longueuil (City), 1997 CanLII 335 (S.C.C.), [1997] 3 S.C.R. 844 at para. 66.
6. The constitution
cannot be stretched to afford protection to whatever activity an individual
chooses to define as central to his or her lifestyle: para. 86.
7. The desire to
build the lifestyle around the recreational use of marijuana does not attract Charter
protection. There is no free-standing constitutional right to smoke
"pot" for recreational purposes: para. 87.
8. The principles of
fundamental justice embraced by s. 7 of the Charter include the
following:
(a) a
criminal law that is arbitrary or irrational will infringe s. 7: para. 135,
citing R. v. Arkell, 1990 CanLII 82 (S.C.C.), [1990] 2 S.C.R. 695, at 704; and R. v. Hamon
1993 CanLII 4139 (QC C.A.), (1993), 85 C.C.C. (3d) 490 (Que. C. A.) at 492.
(b) A
criminal law that is grossly disproportionate, the proof of which rests with
the claimant, will infringe s. 7: para. 143.
9. Disproportionality
of penalty, adverse personal consequences such as a criminal record, or the
ineffectiveness of the law do not contribute to a finding of gross
disproportionality.
10. The balance of
salutary and deleterious effects of the law is a factor to be considered in the
context of s. 1 of the Charter, not s. 7.
[131] Canada says the PHS and VANDU actions should be decided by reference
to the principles enunciated in Malmo-Levine:
The [drugs used at
Insite] are all more harmful than marijuana. Unlike marijuana, there have been
many deaths reported as a result of overdose of opioids, central stimulants,
and speedball. If, as the Supreme Court of Canada has already held, the
physical and social harms of marijuana represent a compelling state interest to
criminalize the possession of marijuana for non-medical use, a fortiori there
is a compelling state interest to prohibit the use of the deadly and socially
corrosive [Insite] drugs.
[132] Canada acknowledges that the Supreme Court left open the question of
how the medical use of marijuana might be analyzed, but says that is not an
issue here because permitting the injection of dangerous drugs with impunity is
not medical treatment for drug addition.
[133] Parker was concerned with the impact of
the criminal law upon an individual claiming a need for marijuana as a matter
of medical necessity, not recreational use. The Crown appealed a trial judge's
ruling that the prohibition against the cultivation and possession of marijuana
by Parker, who required the product in order to control his epilepsy, infringed
his s. 7 Charter right. The Ontario Court of Appeal upheld the trial
decision, saying that forcing Parker to choose between his health and
imprisonment violated his right to liberty and security of the person, and the
violations did not accord with the principles of fundamental justice. Although
Parker preceded the hearing and disposition of Malmo-Levine, it
was not the subject of consideration or adverse comment by the Supreme Court.
[134] Several principles emerge from Parker:
1. The importance of
the right or freedom in issue must be assessed in context rather in the
abstract, and its purpose must be ascertained in context: paras. 82, 83:
83. The
dominant aspect of the context in this case is the claim by Parker and other
patients that they require access to marijuana for medical reasons. They do
not...assert a desire for marijuana for recreational use. Parker does not
claim a right to use marijuana on the basis of some kind of abstract notion of
personal autonomy. The validity of the marijuana prohibition must be assessed
in that particular context. The context here is not simply that the marijuana
prohibition exposes Parker, like all other users and growers, to criminal
prosecution and possible loss of liberty. Rather, Parker alleges that the
prohibition interferes with his health and therefore his security interest as
well as his liberty interest.
2. A
liberty interest is engaged by the threat of criminal prosecution and possible
imprisonment, as well as by the right to make decisions of fundamental personal
importance:
3. Deprivation
by means of a criminal sanction of access to medication reasonably required for
the treatment of a medical condition that threatens life or health constitutes
a deprivation of security of the person, as does preventing access to a
treatment by threat of criminal sanction: para.97.
4. At the point where
the criminal law and medical treatment intersect, certain principles of
fundamental justice apply: para. 117:
To summarize, a
brief review of the case law where the criminal law intersects with medical
treatment discloses at least these principles of fundamental justice:
(i) The principles of fundamental justice are breached
where the deprivation of the right in question does little or nothing to
enhance the state's interest.
(ii) A blanket prohibition will be considered arbitrary or
unfair and thus in breach of the principles of fundamental justice if it is
unrelated to the state's interest in enacting the prohibition, and if it lacks
a foundation in the legal tradition and societal beliefs that are said to be
represented by the prohibition.
(iii) The absence of a clear legal standard may contribute to a
violation of fundamental justice.
(iv) If a statutory defence contains so many potential barriers
to its own operation that the defence it creates will in many circumstances be
practically unavailable to persons who would prima facie qualify for the
defence, it will be found to violate the principles of fundamental justice.
(v) An administrative structure made up of unnecessary rules,
which result in an additional risk to the health of the person, is manifestly
unfair and does not conform to the principles of fundamental justice.
[135] The circumstances that prevail in the case of Insite and its users
are neither those in Malmo-Levine nor Parker. Parker suffered
from an illness while Malmo-Levine did not. Malmo-Levine used marijuana for
recreation and pleasure while Parker used marijuana as an antidote to
epilepsy. Although those who inject at Insite are not using controlled
substances as an antidote for an illness, they suffer from an illness and the
need to obtain the substance by injection is a material part of the illness, as
is apparent from the evidence of both Dr. Marsh and Dr. Evans.
[136] While users do not use Insite to directly treat their addiction, they
receive services and assistance at Insite which reduce the risk of overdose
that is a feature of their illness, they avoid the risk of being infected or of
infecting others by injection, and they gain access to counselling and
consultation that may lead to abstinence and rehabilitation. All of this is health
care.
[137] In my opinion, the Malmo-Levine decision, concerned with the
use of marijuana for purely recreational purposes, does not resolve the issues
raised by the PHS and VANDU actions, concerned as they are with the health care
of addicts resorting to a continuum of services. The actions raise and require
an answer to the question of whether s. 4(1) of the CDSA violates s. 7 of
the Charter by arbitrarily infringing the right to life, liberty and
security of the person otherwise than in accordance with the principles of
fundamental justice. If it does, then so too must s. 5(1), for reasons I will
discuss.
(ii) Section 4(1) of the CDSA and s. 7 of the Charter
[138] The right to life and security of the person, and to a lesser degree
the right to liberty, are engaged by s. 4(1) of the CDSA in relation to the
activities at Insite.
[139] A law that infringes life, security of the person or liberty is
unconstitutional unless it accords with the principles of fundamental justice.
A law that is arbitrary, overbroad or grossly disproportionate in its effect
contravenes those principles. It need not be all of those things. A law that
is either arbitrary, overbroad or disproportionate cannot withstand Charter
scrutiny.
(a) Risk
to Life
[140] Section 4(1) of the CDSA, which prohibits injection within
the confines of Insite, engages the right to life because it prevents healthier
and safer injection where the risk of mortality resulting from overdose can be
managed, and forces the user who is ill from addiction to resort to unhealthy
and unsafe injection in an environment where there is a significant and
measurable risk of morbidity or death. The risk of death as a consequence of
the use of narcotics is well-chronicled: see the report of the Coroner, supra,
para. 20.
[141] Not every threat to life commends itself to Charter
scrutiny. The threat must flow from the actions of the state. As I
appreciate its argument, Canada says that the threat to life results from an
individual’s choice to inject a harmful and dangerous narcotic rather than
state action.
[142] With respect, the subject with which these actions are concerned has
moved beyond the question of choice to consume in the first instance. As I
have said elsewhere in these reasons, the original personal decision to inject
narcotics arose from a variety of circumstances, some of which commend
themselves to choice, while others do not. However unfortunate, damaging,
inexplicable and personal the original choice may have been, the result is an
illness called addiction. The failure to manage the addiction in all of its
aspects may lead to death, whether from overdose or other illness resulting
from unsafe injection practices. If the root cause of death derives from the
illness of addiction, then a law that prevents access to health care services
that can prevent death clearly engages the right to life.
(b) Risk
to Liberty
[143] An individual’s liberty interest is engaged because the CDSA
comprehends the possibility of prosecution and incarceration for the possession
of controlled substances: Malmo-Levine, para. 84, and Parker,
para. 101. However, in the present context, the threat to liberty is of
considerably less importance than the threat to life and security of the
person.
(c) Risk
to Security of the Person
[144] Section 4(1) of the CDSA threatens security of the person. It
denies the addict access to a health care facility where the risk of morbidity
associated with infectious disease is diminished, if not eliminated. While it
is popular to say that addiction is the result of choice and the pursuit of a
liberty interest that should not be afforded Charter protection, an
understanding of the nature and circumstances which result in addiction, as I
have discussed elsewhere in these reasons, must lead to the opposite
conclusion. Society cannot condone addiction, but in the face of its presence it
cannot fail to manage it, hopefully with ultimate success reflected in the cure
of the addicted individual and abstinence.
[145] Canada argues that the right to security of the person is not
engaged because those who use Insite do not do so for the purpose of treating
an illness, but merely to satisfy the craving for an illegal drug.
[146] Denial of access to Insite and safe injection for the reason stated
by Canada, amounts to a condemnation of the consumption that led to addiction
in the first place, while ignoring the resulting illness. While there is
nothing to be said in favour of the injection of controlled substances that
leads to addiction, there is much to be said against denying addicts health care
services that will ameliorate the effects of their condition. Society does
that for other substances such as alcohol and tobacco. While those are not
prohibited substances, society neither condemns the individual who chose to
drink or smoke to excess, nor deprives that individual of a range of health
care services. Management of the harm in those cases is accepted as a
community responsibility. I cannot see any rational or logical reason why the
approach should be different when dealing with the addiction to narcotics, an
aspect of which is that the substance that resulted in the addiction in the
first place will invariably be ingested in the short-term, and possibly in the
long-term, because of the very nature of the illness. Simply stated, I cannot
agree with the Canada’s submission that an addict must feed his addiction in an
unsafe environment when a safe environment that may lead to rehabilitation is
the alternative.
[147] Because life, security of the person and to a much lesser degree
liberty are engaged by the operation of s. 4(1) of the CDSA, I must
consider whether the prohibition against possession as it applies at Insite accords
with the principles of fundamental justice.
(iii) Principles
of Fundamental Justice
[148] Canada says that the compelling state objective of prohibiting the
use of hard drugs which are dangerous to users and to society at large, the
linkage of the drug trade to organized crime, and the opposition of the
international community to narcotics as evidenced by treaties, mean that s. 4(1)
is rationally connected to a reasonable apprehension of harm, not arbitrary,
and therefore not offensive to the principles of fundamental justice.
[149] Canada’s claims are not immune to challenge. International treaties
cannot undermine or override domestic constitutional law and Parliament’s
obligation to ensure that its laws comply with the Charter: Parker
at para.147. Some vigorously argue that the link between drugs and organized
crime arises from the profit associated with illegal trafficking. Canada
postulates that by eliminating consumption, trafficking is rendered less viable.
Others argue with equal fervour that traffickers have a product to sell, and as
with many who possess products, whatever their nature, they will find a market
or create one if none exists.
[150] Even if one accepts Canada’s assertion regarding compelling state
objectives, the resulting law cannot be arbitrary.
[151] McLachlin C.J. addressed the question of arbitrary laws in Chaoulli
v. Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] 1 S.C.R. 791, 2006 SCC 35 at para. 129-130:
It is a
well-recognized principle of fundamental justice that laws should not be
arbitrary: see, eg, Malmo-Levine, at para.135.
A law is arbitrary
where “it bears no relation to, or is inconsistent with, the objective that
lies behind [it]”. To determine whether this is the case, it is necessary to
consider the state interest and societal concerns that the provision is meant
to reflect. …
[152] In my opinion, s. 4(1) of the CDSA, which applies to
possession for every purpose without discrimination or differentiation in its effect,
is arbitrary. In particular it prohibits the management of addiction and its associated
risks at Insite. It treats all consumption of controlled substances, whether
addictive or not, and whether by an addict or not, in the same manner. Instead
of being rationally connected to a reasonable apprehension of harm, the blanket
prohibition contributes to the very harm it seeks to prevent. It is
inconsistent with the state’s interest in fostering individual and community health,
and preventing death and disease. That is enough to compel the conclusion that
s. 4(1), as it applies to Insite, is arbitrary and not in accord with the
principles of fundamental justice. If not arbitrary, then by the same
analysis, s. 4(1) is grossly disproportionate or overbroad in its application.
[153] The conclusion I have reached in relation to s. 4(1) applies equally
to s. 5(1) of the CDSA. It is possible that staff at Insite who
handle used equipment contaminated by controlled substances, or staff who take
possession of any controlled substance for delivery to police, could be alleged
to be engaged in “trafficking”, which is broadly defined by the CDSA to
the administration or transfer of a controlled substance. Failure to protect
the staff against such an allegation would negative the utility of any
determination that s. 4(1) is contrary to s. 7.
(iv) Section 56 of the CDSA
[154] The Crown claims that s. 56 of the CDSA provides a mechanism
to offset any arbitrary aspect that one may attribute to s. 4(1). In this regard
the Ontario Court of Appeal in Parker, para. 184-187, said:
[184] In view of the lack of an adequate legislated standard for
medical necessity and the vesting of an unfettered discretion in the Minister,
the deprivation of Parker's right to security of the person does not accord
with the principles of fundamental justice.
[185] In effect, whether or not Parker will be deprived of his
security of the person is entirely dependent upon the exercise of ministerial
discretion. While this may be a sufficient legislative scheme for regulating
access to marijuana for scientific purposes, it does not accord with
fundamental justice where security of the person is at stake. …
[187] ...The court cannot delegate to anyone, including the
Minister, the avoidance of a violation of Parker's rights. Section 56 fails to
answer Parker's case because it puts an unfettered discretion in the hands of
the Minister to determine what is in the best interests of Parker and other persons
like him and leaves it to the Minister to avoid a violation of the patient's
security of the person.
[155] The unfettered nature of the discretion to exempt is apparent in this
case. Following a detailed assessment of medical and social need, the Health Authority
applied for an exemption that would permit Insite to operate. The heading
under which the Minister granted the exemption was “necessity for a scientific
purpose”. No reference was made to necessity for a medical purpose. No
reference was made to necessity in the public interest, which, in the context
of the DTES, was the over-riding concern.
[156] While I do not conclude that s. 56 of the CDSA is
unconstitutional, it cannot be relied upon as an antidote to the violation of
s. 7 rights that has been established in relation to the users of Insite.
V. The Charter: Section 1
[157] Canada argues that if s. 4(1) of the CDSA offends s. 7 of the
Charter, it is saved by s. 1 as a law that is a reasonable restraint on s.
7 rights in a free and democratic society. In my opinion, the law compels the
dismissal of the claim. The principles of fundamental justice are among the
most important in society. Any law that offends them will not ordinarily be
saved by s. 1: New Brunswick (Minister of Heath and Community Services),
1999 CanLII 653 (S.C.C.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 at para. 99. Given what
is at stake, the present case is no exception.
VI. Disposition
[158] In sum, I declare that ss. 4(1) and 5(1) of the CDSA are
inconsistent with s. 7 of the Charter, and of no force and effect.
[159] I suspend the effect of the declaration of constitutional invalidity
until June 30, 2009. In the interim, and in accordance with the direction of
the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6 (CanLII), 2008 SCC 6, 228 C.C.C.
(3d) 385 at para. 46, I grant users and staff at Insite, acting in conformity
with the operating protocol now in effect, a constitutional exemption from the
application of ss. 4(1) and 5(1) of the CDSA.
“I. Pitfield
J.”
May 29, 2008 – Revised Judgment
Corrigendum
to the Reasons for Judgment issued advising that there is an error in paragraph
one.
The phrase
“drug users not liable” should read: “drug users are not liable”.