Canada (Attorney General) v. PHS Community Services Society

Canada (Attorney General) v. PHS Community Services Society
Collection
Supreme Court Judgments
Date
2011-09-30
Neutral citation
2011 SCC 44
Report
[2011] 3 SCR 134
Case number
33556
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 33556
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134
Date: 20110930
Docket: 33556
Between:
Attorney General of Canada and Minister of Health for Canada
Appellants / Respondents on cross-appeal
and
PHS Community Services Society, Dean Edward Wilson, Shelly Tomic
and Attorney General of British Columbia
Respondents
Vancouver Area Network of Drug Users (VANDU)
Respondent / Appellant on cross-appeal
- and -
Attorney General of Quebec, Dr. Peter AIDS Foundation,
Vancouver Coastal Health Authority, Canadian Civil Liberties Association,
Canadian HIV/AIDS Legal Network, International Harm Reduction Association,
CACTUS Montréal, Canadian Nurses Association,
Registered Nurses’ Association of Ontario,
Association of Registered Nurses of British Columbia,
Canadian Public Health Association, Canadian Medical Association,
British Columbia Civil Liberties Association,
British Columbia Nurses’ Union and REAL Women of Canada
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 159)
McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134
Attorney General of Canada and
Minister of Health for Canada Appellants/Respondents on cross‑appeal
v.
PHS Community Services Society,
Dean Edward Wilson, Shelly Tomic and
Attorney General of British Columbia Respondents
and
Vancouver Area Network
of Drug Users (VANDU) Respondent/Appellant on cross‑appeal
and
Attorney General of Quebec,
Dr. Peter AIDS Foundation,
Vancouver Coastal Health Authority,
Canadian Civil Liberties Association,
Canadian HIV/AIDS Legal Network,
International Harm Reduction Association,
CACTUS Montréal,
Canadian Nurses Association,
Registered Nurses’ Association of Ontario,
Association of Registered Nurses of British Columbia,
Canadian Public Health Association,
Canadian Medical Association,
British Columbia Civil Liberties Association,
British Columbia Nurses’ Union and REAL Women of Canada Interveners
Indexed as: Canada (Attorney General) v. PHS Community Services Society
2011 SCC 44
File No.: 33556.
2011: May 12; 2011: September 30.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Criminal law — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act (“CDSA ”) prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health — Clinic operating safe injection site pursuant to ministerial exemption granted under s. 56 of Act — Minister subsequently revoking exemption — Whether division of powers exempts clinic as health facility from application of CDSA as exercise of federal jurisdiction over criminal law — Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1) , 5(1) , 56 — Constitution Act, 1867, ss. 91(27) , 92(7) , 92(13) , 92(16) .
Constitutional law — Charter of Rights — Right to life, liberty and security of the person — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health — Clinic operating safe injection site pursuant to ministerial exemption granted under s. 56 of Act — Minister subsequently revoking exemption — Whether ss. 4(1) and 5(1) of Act contravene claimants’ rights to life, liberty and security of the person — Whether decision of Minister to revoke accords with principles of fundamental justice — Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1) , 5(1) , 56 — Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitutional law — Charter of Rights — Remedies — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health granted under s. 56 of Act — Clinic operating safe injection site pursuant to ministerial exemption — Minister subsequently revoking exemption — Appropriate remedy — Canadian Charter of Rights and Freedoms, s. 24(1) .
In the early 1990s, injection drug use reached crisis levels in Vancouver’s downtown eastside (“DTES”). Epidemics of HIV/AIDS and hepatitis C soon followed, and a public health emergency was declared in the DTES in September 1997. Health authorities recognized that creative solutions would be required to address the needs of the population of the DTES, a marginalized population with complex mental, physical, and emotional health issues. After years of research, planning, and intergovernmental cooperation, the authorities proposed a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply when they quit drugs for good. The proposed plan included supervised drug consumption facilities which, though controversial in North America, have been used with success to address health issues associated with injection drug use in Europe and Australia.
Operating a supervised injection site required an exemption from the prohibitions of possession and trafficking of controlled substances under s. 56 of the CDSA , which provides for exemption at the discretion of the Minister of Health, for medical and scientific purposes. Insite received a conditional exemption in September 2003, and opened its doors days later. North America’s first government‑sanctioned safe injection facility, it has operated constantly since then. It is a strictly regulated health facility, and its personnel are guided by strict policies and procedures. It does not provide drugs to its clients, who must check in, sign a waiver, and are closely monitored during and after injection. Its clients are provided with health care information, counselling, and referrals to various service providers or an on‑site, on demand detox centre. The experiment has proven successful. Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area. It is supported by the Vancouver police, the city and provincial governments.
In 2008, a formal application for a new exemption was made before the initial one expired. The Minister had granted temporary extensions in 2006 and 2007, but he indicated that he had decided to deny the application. When the expiry of the extensions loomed, this action was started in an effort to keep Insite open.
The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA violated the claimants’ rights under s. 7 of the Charter . He granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of interjurisdictional immunity applied.
Held: The appeal and the cross‑appeal are dismissed. The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.
The criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers. First, the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal criminal law power. The fact that they have the incidental effect of regulating provincial health institutions does not mean that they are constitutionally invalid. Second, provincial programmes designed to advance the public interest are not, by virtue of their public interest status, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited. The CDSA does not contain such a limit. Third, the doctrine of interjurisdictional immunity does not apply. Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference. In addition, the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Finally, as it is common ground that, absent a constitutional immunity, the federal law constrains operations at Insite and trumps any provincial legislation or policies that conflict with it, it is unnecessary to inquire into whether the doctrine of paramountcy applies.
The claimants’ lack of success on the division of powers issue does not doom their claim that the law deprives them of a s. 7 Charter right. There is no conflict between saying that a federal law is validly adopted under s. 91 of the Constitution Act, 1867 , and that the same law, in purpose of effect, deprives individuals of rights guaranteed by the Charter .
Section 4(1) of the CDSA engages the s. 7 Charter rights of the individual claimants and others like them, but, because the Minister has the power to grant exemptions from s. 4(1) , it does so in accordance with the principles of fundamental justice. Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA . It also directly engages the rights to life, liberty and security of the person of the clients of Insite. In order to make use of the lifesaving and health‑protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises. Prohibiting possession at large engages drug users’ liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person. However, because s. 56 gives the Minister a broad discretion to grant exemptions from the application of the CDSA if, “in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest”, s. 4(1) does not violate s. 7 . The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects.
On the facts, the prohibition on trafficking in s. 5(1) of the CDSA does not constitute a limitation of the claimants’ s. 7 rights because trafficking charges would not apply to the activities of Insite staff.
The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Minister’s decisions must conform to the Charter . If the Minister’s decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter , then the Minister’s discretion has been exercised unconstitutionally. In the special circumstances of this case, the Court should go on to consider whether the Minister’s decision violated the clamaints’ Charter rights. The issue is properly before the Court and justice requires that it be considered.
There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather than government action. The ability to make some choices does not negate the trial judge’s findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance. Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right. Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter . The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter .
The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety. It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.
If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed. The goals of the CDSA are the maintenance and promotion of public health and safety. The Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights.
As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy. In the special circumstances of this case, an order in the nature of mandamus is warranted. The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith. A declaration that the Minister erred in refusing the exemption would be inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite’s current constitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate.
On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter , aiming to strike the appropriate balance between achieving public health and public safety. In accordance with the Charter , the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.
VANDU’s cross‑appeal, which challenges the application of the prohibition on possession to all addicted persons, lacks an adequate basis in the record.
Cases Cited
Distinguished: R. v. Parker (2000), 188 D.L.R. (4th) 385; referred to: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Derrickson v. Derrickson, [1986] 1 S.C.R. 285; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751; R. v. Morgentaler, [1988] 1 S.C.R. 30; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Morgentaler, [1993] 3 S.C.R. 463; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. York, 2005 BCCA 74, 193 C.C.C. (3d) 331; R. v. Spooner (1954), 109 C.C.C. 57; R. v. Hess (No. 1) (1948), 94 C.C.C. 48; R. v. Ormerod, [1969] 4 C.C.C. 3; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24(1) .
Constitution Act, 1867, ss. 91(27) , 92(7) , (13) , (16) .
Constitution Act, 1982, s. 52 .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1) , (3) to (6) , 5(1) , 10(1) , 55 , 56 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 4(3) .
Authors Cited
Canada. Health Canada. Vancouver’s INSITE service and other Supervised injection sites: What has been learned from research? — Final report of the Expert Advisory Committee, March 31, 2008 (online: http://www.hc-sc.gc.ca/ahc-asc/pubs/_sites-lieux/insite/index-eng.php).
Canada. House of Commons. Evidence of the Standing Committee on Health, No. 032, 2nd Sess., 39th Parl., May 29, 2008 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=3529880&Language=E&Mode=1&Parl=39&Ses=2).
APPEAL and CROSS‑APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Huddart and D. Smith JJ.A.), 2010 BCCA 15, 100 B.C.L.R. (4th) 269, 314 D.L.R. (4th) 209, 250 C.C.C. (3d) 443, 207 C.R.R. (2d) 232, [2010] 2 W.W.R. 575, 281 B.C.A.C. 161, 475 W.A.C. 161, [2010] B.C.J. No. 57 (QL), 2010 CarswellBC 50, affirming the decisions of Pitfield J., 2008 BCSC 661, 85 B.C.L.R. (4th) 89, 293 D.L.R. (4th) 392, 173 C.R.R. (2d) 82, [2009] 3 W.W.R. 450, [2008] B.C.J. No. 951 (QL), 2008 CarswellBC 1043, and 2008 BCSC 1453, 91 B.C.L.R. (4th) 389, 302 D.L.R. (4th) 740, [2009] 3 W.W.R. 494, [2008] B.C.J. No. 2057 (QL), 2008 CarswellBC 2300. Appeal and cross‑appeal dismissed.
Robert J. Frater and W. Paul Riley, for the appellants/respondents on cross‑appeal.
Joseph J. Arvay, Q.C., Monique Pongracic‑Speier, Scott E. Bernstein and Jeffrey W. Beedell, for the respondents PHS Community Services Society, Dean Edward Wilson and Shelly Tomic.
Craig E. Jones and Karrie Wolfe, for the respondent the Attorney General of British Columbia.
John W. Conroy, Q.C., and Stephen J. Mulhall, Q.C., for the respondent/appellant on cross‑appeal.
Hugo Jean, for the intervener the Attorney General of Quebec.
Andrew I. Nathanson and Brook Greenberg, for the intervener the Dr. Peter AIDS Foundation.
Sheila M. Tucker, for the intervener the Vancouver Coastal Health Authority.
Paul F. Monahan and Antonio Di Domenico, for the intervener the Canadian Civil Liberties Association.
Michael A. Feder, Angela M. Juba and Louis Letellier de St‑Just, for the interveners the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal.
Rahool P. Agarwal, John M. Picone and Michael Kotrly, for the interveners the Canadian Nurses Association, the Registered Nurses’ Association of Ontario and the Association of Registered Nurses of British Columbia.
Owen M. Rees and Fredrick Schumann, for the intervener the Canadian Public Health Association.
Guy J. Pratte, Nadia Effendi and Jean Nelson, for the intervener the Canadian Medical Association.
Ryan D. W. Dalziel and Thomas J. Moran, for the intervener the British Columbia Civil Liberties Association.
Marjorie Brown, for the intervener the British Columbia Nurses’ Union.
Michael A. Chambers, for the intervener REAL Women of Canada.
The judgment of the Court was delivered by
[1] The Chief Justice — Since 2003, the Insite safe injection facility has provided medical services to intravenous drug users in the Downtown Eastside of Vancouver (“DTES”). Local, provincial and federal authorities came together to create a legal framework for a safe injection facility in which clients could inject drugs under medical supervision without fear of arrest and prosecution. Insite was widely hailed as an effective response to the catastrophic spread of infectious diseases such as HIV/AIDS and hepatitis C, and the high rate of deaths from drug overdoses in the DTES.
[2] In 2008, the federal government failed to extend Insite’s exemption from the operation of criminal laws in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA ”). Faced with the threat that Insite would have to stop offering services, the claimants brought an action for declarations that the CDSA is inapplicable to Insite and that its application to Insite resulted in a violation of the claimants’ s. 7 rights under the Canadian Charter of Rights and Freedoms , or, in the alternative, that the federal Minister of Health, in refusing to grant an extension of Insite’s exemption, had violated the claimants’ s. 7 rights.
[3] 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.
I. Introduction and Background
[4] The DTES is home to some of the poorest and most vulnerable people in Canada. Its population includes 4,600 intravenous drug users, which is almost half of the intravenous drug users in the city as a whole. This number belies the size of the DTES. It is in fact a very small area, stretching for a few blocks in each direction from its heart at the intersection of Main and Hastings.
[5] There is no single reason for the concentration of intravenous drug users in this urban neighbourhood. Contributing factors include the presence of several single room occupancy hotels, the de-institutionalization of the mentally ill, the effect of drug enforcement policies over the years, and the availability of illicit narcotics at street level.
[6] The injection drug use problem of the DTES is not hidden. At any given time of day drug transactions can be witnessed in the open air on the very steps of the historic Carnegie Community Centre at Main and Hastings. In alleys steps away, addicts tie rubber bands around their arms to find veins in which to inject heroin and cocaine, or smoke crack from glass pipes.
[7] The residents of the DTES who are intravenous drug users have diverse origins and personal histories, yet familiar themes emerge. Many have histories of physical and sexual abuse as children, family histories of drug abuse, early exposure to serious drug use, and mental illness. Many injection drug users in the DTES have been addicted to heroin for decades, and have been in and out of treatment programmes for years. Many use multiple substances, and suffer from alcoholism. Some engage in street-level survival sex work in order to support their addictions. It should be clear from the above that these people are not engaged in recreational drug use: they are addicted. Injection drug use is both an effect and a cause of a life that is a struggle on a day to day basis.
[8] While some affordable housing is available in the DTES, living conditions there would shock many Canadians. The DTES is one of the few places where Vancouver’s poorest people, crippled by disability and addiction, can afford to live. Twenty percent of its population is homeless. Of those who are not homeless, many live in squalid conditions in single-room occupancy hotels. Residents of single-room occupancy hotels live with little in the way of security, privacy or hygienic facilities. The residents of one building often have to share a single bathroom. Single-room occupancy hotels are commonly infested with bedbugs and rats. Existence is bleak.
[9] A survey of approximately 1,000 drug users living in the DTES was presented to the federal Minister of Health in a 2008 report (Vancouver’s INSITE service and other Supervised injection sites: What has been learned from research? — Final report of the Expert Advisory Committee, March 31, 2008 (online)), and summarized by the trial judge at para. 16 of his reasons (2008 BCSC 661, 85 B.C.L.R. (4th) 89). Generally, he found that:
· those surveyed had been injecting drugs for an average of 15 years;
· the majority (51%) inject heroin and 32% inject 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.
[10] For injection drug users, the nature of addiction makes for a desperate and dangerous existence. Aside from the dangers of the drugs themselves, addicts are vulnerable to a host of other life-threatening practices. Although many users are educated about safe practices, the need for an immediate fix or the fear of police discovering and confiscating drugs can override even ingrained safety habits. Addicts share needles, inject hurriedly in alleyways and dissolve heroin in dirty puddle water before injecting it into their veins. In these back alleyways, users who overdose are often alone and far from medical help. Shared needles transmit HIV and hepatitis C. Unsanitary conditions result in infections. Missing a vein in the rush to inject can mean the development of abscesses. Not taking adequate time to prepare can result in mistakes in measuring proper amounts of the substance being injected. It is not uncommon for injection drug users to develop dangerous infections or endocarditis. These dangers are exacerbated by the fact that injection drug users are a historically marginalized population that has been difficult to bring within the reach of health care providers.
[11] Although injection drug use is by no means a new problem in Vancouver, or for that matter in the rest of the country, in the early 1990s it reached crisis levels in the DTES. In just six years, the number of annual deaths from overdose in Vancouver increased exponentially, from 16 in 1987 to 200 in 1993. In 1996, Vancouver’s medical health officer reported an increase in infectious diseases in the DTES, including HIV/AIDS, hepatitis A, B and C, skin and blood-borne infections, endocarditis and septicaemia, as well as fatal and non-fatal overdoses. All were related to injection drug use. The same year, the British Columbia Centre for Excellence in HIV/AIDS reported an HIV/AIDS epidemic in the neighbourhood. The following year, an epidemic of hepatitis C was reported. A public health emergency was declared in the DTES in September 1997.
[12] The decision to implement a supervised safe injection site was the result of years of research, planning, and intergovernmental cooperation. The process of research and planning is described in the affidavit of Heather Hay, the Director of Addictions, HIV/AIDS and Aboriginal Health Services for the Vancouver Coastal Health Authority (“VCHA”). In her affidavit, Ms. Hay describes the response of the various government agencies to the crisis in the DTES. From the beginning, health authorities recognized that creative solutions would be required to address the needs of the difficult-to-reach population of the DTES.
[13] In 1997, the Vancouver/Richmond Health Board adopted the “Vancouver Downtown Eastside HIV/AIDS Action Plan”, which introduced harm reduction strategies such as the creation of the Vancouver Area Network of Drug Users (VANDU) (“VANDU”) to provide peer outreach and support, and the establishment of needle exchanges. In 1999, VCHA issued a report identifying injection drug use as the root of the health concerns in the DTES, and recommended an integrated health approach that had as its focus harm reduction: expansion of primary care services, the development of creative interventions to address communicable disease, the development of a scheme of drug and alcohol services including harm reduction strategies, and improved access to stable housing. In accordance with this plan, new low threshold health clinics were opened in the DTES, needle exchange services were expanded, methadone service was increased, and access to antiretroviral drugs was improved.
[14] In April 2002, the Province transferred responsibility for adult alcohol and drug services to the regional health authorities, allowing the VCHA to integrate its approach to addictions treatment. In September 2002, the VCHA proposed a new addictions plan for Vancouver that adopted harm reduction strategies and moved away from traditional abstinence-based programmes. The plan envisioned a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply at the exit point when they quit drugs for good. The proposed plan included supervised drug consumption facilities.
[15] The notion of a supervised injection facility, although politically contentious in North America, has precedent elsewhere. Supervised injection sites have been used with success to address health issues associated with injection drug use in other parts of the world. Safe injection sites operate in 70 cities in 6 European countries, and in Sydney, Australia. These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services. Successful treatment requires acknowledgment of the difficulties of reaching a marginalized population with complex mental, physical, and emotional health issues.
[16] Ms. Hay prepared a proposal for a supervised injection site, which received the approval of the Board of the VCHA in March 2003. In May 2003, the proposal was submitted to Health Canada for consideration. Federal approval was required in order to obtain an exemption from the prohibitions on possession and trafficking of controlled substances in the CDSA . The scheme of the CDSA provides for such exemptions, at the discretion of the Minister of Health, under s. 56 . Health Canada gave final approval for conditional exemption of the facility from possession and trafficking laws as a pilot research project under s. 56 of the CDSA on September 12, 2003.
[17] Insite opened its doors on September 21, 2003. It was North America’s first government-sanctioned safe injection facility. It has operated constantly since then, seven days a week, 18 hours a day. Its operations are described at paras. 71-77 of the trial judge’s reasons:
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.
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.
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.
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.
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.
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.
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.
[18] This passage describes a strictly regulated health facility. It operates under the authority of the VCHA, and its personnel are guided by strict policies and procedures. It does not provide drugs to its clients, who must check in, must sign a waiver, and are closely monitored during and after injection. There are guidelines for staff to follow in the disposal of used injection equipment and the containment of leftover drugs.
[19] Insite was the product of cooperative federalism. Local, provincial and federal authorities combined their efforts to create it. It was launched as an experiment. The experiment has proven successful. Insite has saved lives and improved health. And it did those things without increasing the incidence of drug use and crime in the surrounding area. The Vancouver police support Insite. The city and provincial government want it to stay open. But continuing the Insite project will be impossible without a federal government exemption from the laws criminalizing possession of prohibited substances at Insite.
[20] The federal CDSA is the federal government’s response to the problem of illegal drug use across Canada. By way of the CDSA , the federal government has chosen an approach that favours a blanket prohibition on possession and trafficking in illegal drugs. At the same time, Parliament has recognized that there are good reasons to allow the use of illegal substances in certain circumstances. The federal Minister of Health can issue exemptions for medical and scientific purposes under s. 56 of the CDSA . Section 55 of the CDSA allows for the Governor in Council to make regulations for the medical, scientific and industrial use of illegal substances. In this manner, Parliament has attempted to balance the two competing interests of public safety and public health. In 2008, the federal exemption for Insite from the operation of the criminal drug laws expired. This action was started in an effort to keep Insite open.
II. Procedural History
[21] This action was brought by Dean Edward Wilson, Shelly Tomic, PHS Community Services (“PHS”), and VANDU. PHS is a non-profit organization that oversees the operation of Insite. VANDU is a non-profit society that advocates on behalf of drug users.
[22] The individual claimants, Mr. Wilson and Ms. Tomic, are residents of the DTES and are (or have been) clients of Insite. Mr. Wilson is 55 years old and has been injecting heroin since he was 13. He has been injecting cocaine for almost as long. His drug use has had serious health consequences: he is hepatitis C positive, and is frequently ill. He has tried to stop or reduce his drug use many times, but has been unable to go completely clean. Mr. Wilson has translated his own experiences into a positive role in helping to educate and improve the health situation of other drug users in the community. He was the first person to use Insite’s facilities, and continues to go back when he relapses into heroin use. He considers Insite to be an important resource for injection drug users in the DTES, and believes that he has reduced his own risk of serious overdose by injecting there. Most importantly, he says, “Insite has given dignity to people who have to struggle to have their humanity recognized” (A.R., vol. II, at p. 44).
[23] Ms. Tomic is 43 years old, and was born addicted to speed. She began injecting cocaine when she was 19 or 20, heroin when she was 26 or 27. She has turned to sex work at times to support her addiction. Like Mr. Wilson, she is hepatitis C positive. She is treating her addiction with methadone, but occasionally relapses and uses heroin. Ms. Tomic started injecting at Insite as soon as it opened in 2003, and immediately noticed that she stopped getting abscesses when she injected there. She also credits Insite with getting her started on methadone treatment. Like Mr. Wilson, she attests to the psychological and emotional support that Insite and its staff provide, and its role in keeping her on the path to recovery.
[24] Ms. Tomic, Mr. Wilson and PHS seek a declaration that ss. 4(1) and 5(1) of the CDSA are constitutionally inapplicable to Insite, because as a health facility it is under exclusive provincial control, making an exemption under s. 56 unnecessary. They also allege that the application of the criminal prohibitions in the CDSA to Insite violates their constitutional rights under s. 7 of the Charter , and to this extent are invalid under s. 52 of the Constitution Act, 1982 . In