Fate of supervised injection in legal limbo

The Supreme Court of Canada is likely to shut down Insite, Vancouver’s safe injection site, if it considers the case later this year — despite a B.C. court ruling that deemed closing the site unconstitutional.

That’s the prediction one law expert is making after Justice Minister Rob Nicholson asked the Supreme Court to overturn the B.C. court’s decision that allowed the safe injection site to remain open.

When there is a jurisdictional conflict between provincial and federal governments, federal usually prevails, according to Benoit Pelletier, law professor at the University of Ottawa and former Quebec intergovernmental affairs minister.

Insite, North America's first supervised injection facility, is located at 139 Hastings St., in Vancouver's Dowtown Eastside.

Pelletier explains that “there is no obvious reason” why the federal level usually prevails, but that it is “established” in the Supreme Court.

“The Supreme Court just is what it is,” he says.

Insite, North America’s first legal supervised injection site, started in 2003 as a pilot project in Vancouver’s Downtown Eastside.

Since Insite first opened its doors, there have been more than 40 peer-reviewed academic papers published in scientific medical journals confirming its success.

The studies found Insite prevents overdose deaths and limits the spread of infectious disease.

The safe injection site first opened under a temporary exemption to federal drug laws. Under current federal drug laws, it is illegal for Insite to continue operating.

When the exemption was due to expire in 2008, the B.C. Supreme Court ruled that closing a health care service that can prevent death and the transmission of infectious disease goes against the right to life and security in Canada's Charter of Rights and Freedoms.

As a result, the court struck down sections of Canada's federal drug laws as unconstitutional, and Insite was allowed stay open.

In a Feb. 9 statement, Nicholson announced the federal government’s intention to appeal that B.C. court ruling. He said the federal government has asked the Supreme Court to look at who has jurisdictional power over the safe injection site.

Insite is considered a health service, Pelletier says.

The question of jurisdiction: many shades of grey

While the actual delivery of health services is a provincial responsibility, broad pieces of federal legislation also provide guidance for each provincial health system.

“Not only will it mean a new interpretation of the Charter of Rights and Freedoms in Canada, but also a new interpretation of the distribution of powers”

The issue is further complicated by funding, as the federal government provides funding to the provinces to help pay for health care services.

In a statement, Nicholson said Insite goes against the National Anti-Drug Strategy, which focuses on prevention, treatment and enforcement as a solution to Canada’s drug problem.

Insite operates on a harm reduction model, where drug users are provided with clean syringes to inject while under supervision by a health care worker, which some critics see as condoning illegal drug use.

Although the federal government cited a conflict of jurisdiction as reasoning behind asking the Supreme Court to look at the case, Libby Davies, New Democrat MP for Vancouver East, said she is “skeptical” about this being the only reason.

“They say it’s a jurisdictional issue, but the truth is they’ve always been against harm reduction,” she said.

The National Anti-Drug Strategy once included harm reduction, but it was dropped from the strategy in 2007.

Davies said Canada had been moving closer in step with Europe’s drug strategy, which she described as “much more pragmatic.”

When harm reduction was dropped, the emphasis shifted to enforcement.

In the Feb. 9 statement, Nicholson said the government's policy is to get tough on "drug dealers and producers who threaten the safety of our children and communities.”

“Our message is clear: If you sell or produce drugs, you will face jail time,” said Nicholson.

Davies disagrees with that approach.

“They’re so compelled by this idea of tougher sentencing and tougher laws, which is not going to solve the drug problem, that they refuse to look at the real evidence that proves Insite works.”

Right to ‘shoot up’ safely a constitutional right?

However, Pelletier says while some may think the Insite case is simply a conflict between conservative and liberal philoosophies, there are also clear legal issues at stake.

“There really is a conflict between two powers. On one side, the federal competence over criminal law, and on the other side, the provincial competence over health care.” 

Getting addicts off the streetPelletier says there are also constitutional issues in this case. Section 7 of the Canadian Charter of Rights and Freedoms states everyone should have the right to life, security and liberty.

Pelletier says he was surprised by the B.C. court’s interpretation of Section 7. He described it as “extremely innovative and very much favourable to provincial autonomy.”

He doesn’t expect the Supreme Court to come to the same decision as the B.C. court, but if it does, Pelletier says the case will set a major precedent.

“Not only will it mean a new interpretation of the Charter of Rights and Freedoms in Canada, but also a new interpretation of the distribution of powers,” he said.

“If the Supreme Court confirms the B.C. court’s decision, it will open new doors and will be applied not only in B.C. but also in all of Canada,” he said.