Thursday, 6 June 2013

The A to Z.1 of Safe Injection Sites in Canada

In late 2011, the Canadian federal government suffered a defeat at the Supreme Court of Canada. In Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134, the government was ordered to give an exemption from the application of criminal prohibitions on drug possession to a safe injection site called Insite. This facility served drug users (many of whom were chronic drug users) in Vancouver, British Columbia.

Though factually dramatic, the legal import of the case is somewhat limited. Under the then-existing legal framework, a previous government had given an exemption, using a discretionary power in the Controlled Drugs and Substances Act to protect Insite's staff and clients from the effect of the criminal law. The current federal government refused to renew the exemption (probably, in reality, for ideological reasons). However, as the site operators were able to demonstrate at trial, there were significant health benefits to their facility.


For a unanimous court, McLachlin C.J. held that the refusal to renew the exemption breached s. 7 of the Charter by depriving the operators of the facility and its users of liberty and security of the person. In so holding, McLachlin C.J. placed heavy reliance on Insite's demonstrably positive record (see e.g. paras. 91-93).

There was no question of the Court announcing a positive right to safe injection sites. Indeed, the Court did not even conclusively treat the argument that a blanket criminal prohibition on drug possession breached s. 7 of the Charter (see paras. 108-109). All the Court said was that the prohibition plus the provision for an exemption had to be considered together. Viewed in the round, the legal framework was consistent with the Charter, because the discretionary power to grant exemptions functioned as a "safety valve" (see para. 113).

However, the power had to be exercised in a constitutional manner. Based on the record, McLachlin C.J. held that refusing to grant the exemption was arbitrary: the facts "suggest not only that exempting Insite from the application of the possession prohibition does not undermine the objectives of public health and safety, but furthers them" (see para. 131).

The common theme throughout the judgment was that there was no basis in the evidence before the minister to justify refusing to grant the exemption. We are a long way from any claimed "right" to safe injection sites.

Today, the federal government responded to the Insite decision. It could have tried to tough it out by abolishing the power to grant exemptions altogether, but that would have invited challenge (on the ground not conclusively treated in Insite). Instead, it has proposed that the discretionary power to exempt should be exercised based on the consideration of 27 factors ((a)-(z.1)). Well, 25, really: (z) is "any other information that the Minister considers relevant to the consideration of the application" and (z.1) is "any prescribed information that is submitted in the prescribed manner". As if the preceding 25 were not sufficiently comprehensive!

Indeed, no exemption may even be considered by the minister until information relating to the 25 factors has been submitted. This is onerous: the applicant must meet with local community groups, for example, and get letters of support from the municipal authority and police officials. The applicant must also provide evidence about the need for the facility and previous drug-related problems in the area.

None of the 25 factors is unreasonable per se. It is entirely sensible to want applicants for a safe injection site to consult with police, municipalities and community groups. Evidence-based policy-making is also unobjectionable.

In their totality, however, the 25 factors (plus the minister's authority to require extra information) place significant hurdles in front of anyone wishing to develop a safe injection site. Just satisfying the requirements for consultation and evidence-gathering is likely to sap the resources of the most committed and well-funded organizations. Plainly, the federal government does not want to encourage the proliferation of such sites. As a matter of policy, it is perfectly entitled to take that position.

Is the position lawful (with due regard for the possibility it might change)? A constitutional challenge would be difficult. A federalism challenge is virtually doomed. In pith and substance, the 25 factors are designed to regulate the granting of exemptions from the criminal law, a federal competence. It would be difficult to argue that the federal government is trespassing unduly on provincial jurisdiction: the input of provincial ministers and municipalities is a condition precedent to the granting of an application for an exemption (though these bodies are not compelled to give their input; if they refuse, then the applicant will be unable to give information relating to several of the 25 factors).

The argument on Charter grounds would have to be something like this: the overly onerous application procedure makes it virtually impossible to get an exemption, which deprives people with drug problems of life and security of the person, contrary to s. 7. In the new scheme, evidence of harm to life and security of the person is only one factor to be considered by the minister -- but if there is evidence that granting an exemption will protect individuals' s. 7 interests, how can it be outweighed by, say, the views of unhappy community groups or provincial politicians?

The federal government would doubtless respond that the 25 factors are designed to allow consideration of a range of appropriate interests, including the life and security of the person interests of other people in the community. Indeed, the 25 factors are designed to fulfill the public health and safety purposes of the exemption provision. And in any event, exemptions from the criminal law ought not to be lightly granted.

Such multi-factor statutes have previously been upheld against constitutional challenge, in situations where individuals' Charter rights were implicated (see Lake, 2008 SCC 23, albeit that the "Cotronti" factors were judicially developed). For example, in Divito, 2011 FCA 39 (under reserve at the Court), the Federal Court of Appeal gave the imprimatur of constitutionality to a similar provision in the International Transfer of Offenders Act. I think the same result would likely be reached here. Ultimately, proponents of safe injection sites will likely find political channels more rewarding than legal ones.

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