About five months ago I wrote about the situation of Insite, Vancouver’s safe injection site where drug addicts could receive clean needles, medical supervision during drug use, and access to drug treatment. I was very concerned as a skeptic that a new form of science based drug policy known as harm reduction was going to be railroaded by an ideological based policy. Fortunately, that was not the case.
You can read my other post to get the back ground in detail, as well as a review of the peer reviewed scientific literature on harm reduction as well as complicated legal battle that Insite was facing.
In case you don’t want to go to that trouble, here is a quick refresher:
Insite was created in Vancouver in 2003 under a special exemption from Canada’s drug trafficking and possession laws under section 56 of the Controlled Drugs and Substances Act (CDSA) This exemption by the Liberal Government of Canada allowed the Vancouver Coastal Health Authority and the Portland Hotel Society to establish Insite. After this three year exemption from the laws expired in 2006, the Federal Health Minister of the new Conservative Government, extended this by fifteen months.
Fearing that Insite would be closed after that, the Portland Hotel Society and two Insite users, filed a claim with the BC Supreme Court urging them to declare that Insite was the jurisdiction of the province and not the federal government.
The results of this legal battle were:
Insite was allowed to continue on the basis that Canada’s drug trafficking laws violated section 7 of the Canadian Charter of Rights and Freedoms.
Insite was also ruled to not be the specific domain of British Columbia.
Both sides appealed the decision. The Conservative Government appealed the ruling that the drug laws violated the Charter and the PHS appealed that Insite should be the specific domain of the province. The government lost their appeal and the PHS eventually won their appeal in January of 2010. This led to the current case in court. The Harper Government has appealed to the Supreme Court of Canada that Insite is not exclusively the domain of the province, but the Federal government.
Last Friday the Supreme Court of Canada made a ruling on Insite.
The judge ruled that Insite was to receive continued support from the Federal Government that it could not be shut down. It was a tremendous victory for proponents of harm reduction drug policy and a huge relief to all the people who depended on Insite for healthcare in the downtown eastside of Vancouver.
As skeptics we obviously want to see science based medicine and effective methods to improve public health. What this means is that, we skeptics, want to see medicine like vaccines promoted instead of homeopathy; but, we also want to see science based policy as well. What Insite has proven is that the harm reduction policy is working, in fact, working better than the “war on drugs” policy that the Conservative government has been supporting. Since the evidence is pointing to harm reduction being a more effective method of controlling the harmful effects of drug addiction in society, it should follow that harm reduction as a policy gain the support of our government and health care providers.
As I mentioned in my first blog post on this issue, what was really distressing was that the Harper Government wasn’t just arguing against the evidence (saying for instance that it was either wrong or misguided) but actually arguing in spite of the evidence. What they were saying was that, yes, harm reduction appears to be working…but that’s irrelevant because that isn’t the policy we want to use.
Readers can click on the this link to the Globe and Mail to see a video of Conservative Health Minister Leona Aglukkaq refusing to acknowledge the benefit of Insite and instead reaffirming their traditional approach to drug treatment.
Equally troubling is the willingness to portray this divide along political party lines. Conservative voters could easily be justified in believing that the ruling on Insite will pave the way for decriminalizing drugs and drug trafficking, allowing for an outbreak of constant drug use and addiction. But a science based policy isn’t (or shouldn’t be) a political issue. And acknowledging the effectiveness of harm reduction policy isn’t an endorsement of drug use. As Andre Picard, health correspondent for the Globe and Mail points out:
“The other unfortunate aspect of the Insite battle is that it has focused too much attention on harm reduction to the detriment of other important interventions.
Supervised injection targets a small minority, the sickest of the sick. The threat of prosecution is meaningless in this group and, sadly, treatment options are few. So you try to minimize the harm they can do to themselves and others – for compassionate and economic reasons.
But most addicts do not live on the means streets of Vancouver’s Downtown Eastside. They live in mainstream society – struggling at work, in school, at home. Most suffer from another form of mental illness.”
The ruling from the Supreme Court doesn’t just leave a tangible “where do we go from here” feeling with relation to drug policy, it also opens the door to some serious legal issues to consider.
The courts ruled that Insite is not the exclusive domain of the Province of British Columbia and that the Controlled Drugs and Substances Act (CDSA) does apply to health care. The point of Insite being subject to the jurisdiction of British Columbia was a surprising development in the long legal battle so it’s not that shocking to see it revoked by the Supreme Court. However it does leave an open question to how Provinces will administer health care in the future, especially in situations where a Province faces unique health care challenges that don’t exist elsewhere in the country.
Additionally the ruling that Insite will not be exempt from the CDSA is a puzzling development and I’m not sure exactly how that is supposed to play out.
However, the decision to close Insite was considered “arbitrary” and because of the proven benefits, infringed on Charter rights of people having the right to medical treatment. Consider this quote from the ruling:
“The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.”
This is the key piece of the ruling that allows Insite to continue to operate. The Court ruled that given all the of the established scientific evidence that Insite is working and improving the lives of addicts, it would be a violation of their rights as Canadians to remove their access to healthcare. The Court has also made it clear that in order for the Government to deny Insite the right to continue operations, they must prevent evidence that Insite is either in gross violation of the CDSA or failing to live up to its stated mission of improving the lives of addicts.
Based on my understanding of the ruling, because of the demonstrated benefits of Insite and the perceived arbitrariness of the efforts to close it down, the Health Minister is ordered to continue exempting Insite from the CDSA.
“The question in this appeal is whether Insite is exempt from the federal criminal laws that prohibit the possession and trafficking of controlled substances, either because Insite is a health facility within the exclusive jurisdiction of the Province, or because the application of the criminal law would violate the Charter. For the reasons that follow, we conclude that the CDSA is applicable to Insite, and that the scheme of the CDSA conforms to the Charter. However, the actions of the federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA are in violation of s. 7 of the Charter, and cannot be justified under s. 1. Accordingly, we order the Minister to grant Insite an extended exemption, and dismiss the appeal.”
Insite’s victory is an important step in Canada’s drug policies towards a scientifically informed system. But it has been a costly victory. Legal battles are not cheap and the ruling itself does not make it likely more Insite locations will emerge. It does at least open the door to future consideration of what a better drug policy could look like.
I noticed that this whole discussion of Insite, which involved lawyers, Charter experts, activists, doctors, and politicians was lacking one group who should have been quite vocal: Skeptics.
Hopefully, that will change in the future.