The Insite Decision in a Nutshell

Unless you’ve been hiding with the radio and TV off and avoiding the web, you’ve already heard the Supreme Court of Canada decision on Insite – North America’s only sanctioned safe injection facility.  In short, this morning we won a remarkable victory that will allow Insite to continue to operate and save lives, prevent disease, provide access to health care and recovery services and a host of other proven benefits.  It was an important victory of evidence-based science over ideology.  Importantly, we’re hopeful that this historic decision may open the doors to similar services throughout Canada and possibly into the United States where the results of the SCC are being watched by harm reduction advocates.

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In May, I attended the Supreme Court of Canada as one of four lawyers representing PHS Community Services, Dean Wilson and Shelly Tomic – the three parties who began the legal action in BC Supreme Court in 2007 when faced with threats from the federal government to close down Insite.  Sitting in the Ottawa airport, I blogged about the journey that took me through this case, first as a law student and then a lawyer.  As my first trip to the Supreme Court of Canada, I was thrilled and honoured to be a part of this important case that affects so many people and to assist the talented senior lawyers who put so much passion into this case, Joseph Arvay and Monique Pongracic-Speier.

The media, of course, have been reporting on the decision this morning with gusto.   But, understandably, there has been some confusion in the reporting of the actual legal decision that was handed down by the Court.  For the record, let me give a brief explanation of what was decided (and what wasn’t) by the SCC:

In this case, we made two big arguments.  The first was that Insite was health care and health care is a “protected core” of provincial power.  As a protected core, health care decisions (like creating Insite) couldn’t be negated by a federal law (the Controlled Drugs and Substances Act or CDSA) . This constitutional doctrine is termed “interjurisdictional immunity” (impress your friends with this if you dare) and has been relied on by the courts less and less frequently in recent times and has never worked in favour of provincial powers, only federal ones to date.  We lost this argument in the BC Supreme Court, and then surprisingly won it in the Court of Appeal.  In the Supreme Court of Canada, we lost it again.  The SCC said in this case to “apply it here would disturb settled competencies and introduce uncertainties for new ones.”  So, when the media say that the SCC decision found that health care was in the purview of the province and can’t be ousted by the criminal law, that’s not really true.  The SCC says that – absent any Charter issues – the CDSA applies and can oust health care because of another constitional doctrine: paramountcy.

The second argument, though, relied on the Charter.  We said that the CDSA sections were unconstitutional because they violate the Section 7 rights to not be deprived of life, liberty or security of the person without being in accord with the “principles of fundamental justice” (continue impressing your friends).  OR, the Minister’s failure to continue an exemption of the CDSA was a Section 7 infringement.  In the end, the SCC found that while the prohibition on possession of drugs (but not trafficking) does engage life, liberty and security of the person, it wasn’t contrary to those principles because there was a mechanism in place where the Minister could grant an exemption for purposes of science, reasearch, etc.  But, because the Minister refused to grant an exemption, this was contrary to the Charter Section 7 because this decision was arbitrary (undermining the purposes of the CDSA) and grossly disproportionate.  So, in the end, the Court ordered the Minister (“an order in the nature of mandamus” – if you still have friends left after the first two, try this one out) to issue the exemption forthwith.

And, that’s the decision in a nutshell.

As for what the Insite decision means for the Minister allowing other facilities in Canada and what steps Pivot will take in the future in this area,  I’ll leave that for a future blog post.  But, the SCC seems to have left open a door or at least a crack (paragraphs 152 and 153):

The dual purposes of the CDSA – public health and public safety – provide some guidance to the Minister.  Where the Minister is considering an application for exemption for a supervised injection facility, he or she will aim to strike the appropriate balance between achieving the public health and public safety goals.  Where, as here, the evidence indicates that 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. 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.