Simons et al. v Minister of Public Safety et al.
Earlier this month, Pivot had our long-awaited day in the Ontario Superior Court of Justice, where we intervened alongside our coalition partners in a precedent-setting case about the right of prisoners to access life-saving prison needle exchange programs (PNEP).
As part of a coalition with the Vancouver Area Network of Drug Users (VANDU) and West Coast Prison Justice Society (which operates Prisoners’ Legal Services), we argued that the lack of effective access to PNEP in Canada is unconstitutional, violating prisoners’ equality right under the Canadian Charter of Rights and Freedoms. Led by pro bono counsel Dan Sheppard (of Goldblatt Partners LLP), our coalition joined the Applicants and four other interveners in calling for effective, evidence-based PNEP as essential healthcare in all federal prisons.
We expect the Court to deliver its judgment in the coming months, but you can read on to learn more about the case and our argument.
Pro bono counsel Dan Sheppard of Goldblatt Partners LLP and Pivot Staff Lawyer Caitlin Shane at the Ontario Superior Court of Justice in Toronto | March 6, 2020
About the Case
At the heart of the Simons case is a fight for the healthcare rights of federal prisoners.
Does the Canadian government’s severe restriction on confidential and effective access to prison needle exchange programs violate the life, liberty, security, and equality interests of prisoners?
We argue it does.
The Applicants comprise four HIV organizations and Steven Simons, a former prisoner who was infected by Hepatitis C (HCV) and exposed to the risk of HIV infection while incarcerated as a result of inadequate access to sterile injection equipment.
Click here to read the Applicants’ full submissions
The all-too-common experience of the Applicant, Mr. Simons, is precisely why domestic and international experts and advocates have for decades pressured Correctional Services Canada (CSC) to ensure access to PNEP. These programs are proven to decrease needle-sharing and in turn prevent the spread of bloodborne infections. Rather than take up these recommendations, however, CSC has chosen to rely on ineffective and dangerous “bleach programs,” which provide bleach as a harm reduction measure to clean drug injection equipment. This approach persists despite the United Nations Office on Drugs and Crime (UNODC) Guidelines stating that the use of bleach is unethical and despite a warning from CSC’s own advisory board over twenty years ago that bleach does not adequately protect against HIV/HCV transmission. Not surprisingly, the HIV prevalence rate for federal prisoners is some ten times the rate for the general Canadian population, and the rates of needle-sharing and HCV continue to soar throughout the prison system.
Photo: Caitlin Shane | Applicants and advocates for prisoners’ healthcare rights gathered outside the Court, shortly before the hearing was adjourned | December 9, 2019
In addition to ignoring calls for effective PNEP, the federal government has made repeated efforts to delay a proper hearing on the matter, which was first filed in 2012. Since then, we have continued to fight against procedural delays, and for government accountability. In 2018—likely motivated by this litigation—CSC conceded to a slow-moving rollout of pilot PNEP in a few select prisons.
Why the current PNEP is not enough
The federal government’s implementation of limited pilot PNEP is a step in the right direction, but it is not enough. To date, only a handful of prisons across Canada provide such services, and as the Applicants and interveners argued last week, these pilot programs are sorely inefficient and ineffective.
Prison needle exchange programs are essential healthcare.
Prison needle exchange programs are essential healthcare. They should be characterized, designed, and implemented like other forms of healthcare in the prison system - confidentially, without stigma, discrimination, or judgment, and under the direction of CSC Health Services, not prison security staff.
The PNEP currently on offer through the pilot program is exceptionally securitized. Prisoners seeking access to the program must undergo a “threat/risk” assessment, which requires a warden to approve their participation irrespective of clinical need. PNEP participants are moreover subject to multiple daily “visual inspections” and their access to kits is heavily limited, despite the fact that many prisoners will use drugs multiple times a day and thus have to re-use equipment. This securitization poses obvious health, safety, and confidentiality risks and is otherwise a clear barrier to access. It flies in the face of an evidence-based drug policy amid an opioid epidemic that kills thousands of people in Canada each year, including people in prisons.
The persistence of austere restrictions on PNEP is a testament to the stigma that continues to plague our state facilities and services. There is no reason to exceptionalize the delivery of health care to prisoners who use drugs via harsh securitization. PNEP must be low-barrier and properly within the spectrum of healthcare services.
It’s totally contradictory - CSC says “use these programs” but then they punish you.
No one is better placed to explain the inefficacy of CSC’s current approach than people who are directly impacted. SK was recently released from one of the few prisons in Canada where PNEP is offered:
"On one hand, you’re offering to give us something for harm reduction - this needle exchange program is a harm reduction measure. Yet, on the other hand you’re putting it down in our paperwork and that shows up when we talk to our case management team to request support or appear before the National Parole Board of Canada. We are then punished for our involvement in the “drug subculture.” Using the program will be used against us to show that we are “actively involved” and “seeking out” or “immersing ourselves in” the drug subculture. These labels can and will have disciplinary consequences. When you’re labeled as someone who is actively involved in the “drug subculture” you will not receive support for community-based programs because CSC will hold your drug use against you. Making use of this program inside an institution actually undermines people seeking harm reduction.
It’s totally contradictory - CSC says “use these programs” but then they punish you. We know the guards don’t like the program, and because of this they will try to get the program removed - this means they could give people a hard time trying to access it, or conduct extra searches, or write up observation reports that claim inmates were “under the influence.” Guards have their forms of intimidation, coercion - of everything. Believe me, I’ve seen this before - when guards wanted smoking banned from the institutions they would lay charges against inmates and bring up personal concerns about “second-hand smoke.” They are so savvy - they will take a positive program like this and turn it into a negative thing. Even though the needle exchange program is designed for the best interests of inmates and staff alike, guards are turning it into harm alone. The current approach has taken the “reduction” right out of it." - SK
SK was released from a women’s federal penitentiary in January 2020. At the time of her release, no one had accessed the program in her institution, due to the possible disciplinary measures they would incur.
Our Argument: how PNEP prohibitions and restrictions violate prisoners’ equality rights
As a coalition, Pivot, VANDU, and Westcoast Prison Justice Society made the case that prohibitions against or restrictions on PNEP disproportionately harm individuals along lines of sex, race, and “disability”—in particular, women, Indigenous people, and people who use drugs.
In other words, while it harms all prisoners to deny access to clean needles, it harms some more than others. Women, people experiencing addiction, and Indigenous people are already more likely to be exposed to HIV or HCV, more likely to share or re-use needles, and more likely to be incarcerated (with the exception of women). The fact that these groups require needle exchange programs the most means they also suffer the most under the current restrictive regime. This, we told the Court, violates section 15 of the Charter, which guarantees equal benefit and protection under the law.
After our day in Court we are left wondering: how can our federal government continue to call for reconciliation with Indigenous peoples; gender equity; and a public health approach to drug use all the while fighting, tooth and nail, since 2012 to keep essential healthcare out of the hands of people who use drugs in prisons?
We demand an end to heavy-handed and securitized PNEP. We want easy, confidential, and effective harm reduction in prisons today! We are hopeful that the Court heard our movement’s calls. We will keep you posted once a decision is delivered.
Special thank you to Dan Sheppard and of course to the Applicants. We are indebted to Steven Simons, Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network, Canadian Aboriginal Aids Network, and Catie for bringing this important case forward.
Photo Credit: Canadian HIV/AIDS Legal Network
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Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.