October 8, 2020

Via Email

Mayor and Council

RE: Vancouver City Council Motion R6. Lease for RainCity Housing and Support Society for Overdose Prevention Site at 1101 Seymour Street

Dear Mayor and Council of City of Vancouver:

We write on behalf of Pivot Legal Society and the Canadian Drug Policy Coalition (CDPC) urging you to approve the lease for the prospective overdose prevention site (OPS) at 1101 Seymour Street. We also wish to underscore that the paramountcy of public health over community input in the approval process for harm reduction services is established in law and should be followed here. In the case of this and other OPS, neither the lease agreement nor any other decision regarding OPS’ operations requires “community consultation” beyond the current public consideration at City Hall.

This Council is aware of the life-saving impact of OPS in Vancouver, especially during a now four-years-long overdose crisis. The BC Centre for Disease Control estimates that overdose fatality rates would have been 2.5 times higher without the rapid expansion of harm reduction services (of which OPS were a primary component) in the first 20 months of BC’s emergency.^[1] There is ongoing, desperate need for OPS in Vancouver, as evidenced by escalating overdose fatalities, which have reached a record high since the onset of the COVID-19 pandemic.^[2]

Pivot and CDPC are confident that Mayor and Council will not forgo this opportunity to save more lives and will approve the lease in question. This is the only outcome that aligns with the City’s stated support for harm reduction and continued treatment of the overdose crisis as a matter of public health. It is critical, however, that this and future decisions relating to Vancouver-based OPS not be burdened or delayed by community consultations; public health must be the foremost consideration. This is a requirement of law.

Community Consultation in Vancouver

The City of Vancouver prides itself on public consultation, community engagement, and other modes of civic participation. We affirm the role of directly-impacted communities to provide direction, critique, and feedback regarding decisions about their lives.^[3] However, community consultation has become a tool for certain groups to inappropriately exercise power over marginalized communities, subjecting them to further stigma and harassment and, at times, actually compromising their health care. In recent years, this has become evident at hearings related to government decisions regarding people who use drugs and/or rely on public space.^[4]

The caselaw is clear, however, that when government is contemplating decisions about health care services, including OPS, public health takes precedence over considerations of negative impacts on the local community.

Legal precedent: Chinatown & Area Business Association v Canada (Attorney General), 2019 FC 236

Recently, Pivot represented CDPC as an intervenor at the Federal Court of Canada in a case known as “CABA”, Chinatown & Area Business Association v Canada (Attorney General). In that case, an Edmonton-based business association attempted to prevent the opening of a supervised consumption site (SCS) on the basis that it was not adequately consulted in Health Canada’s decision to approve the site. We argued, and the Court agreed, that community organizations are not owed the right to weigh in on such matters because they are principally health care issues. The Court adopted our submission that decision-makers’ single most important consideration is a site’s potential to benefit public health:

“The process [to approve a SCS] is both discretionary and non-adjudicative. The principal and mandatory focus of the legislation is on the question of whether an exemption would provide public health benefits. Any consideration of negative impacts on the local community is secondary and discretionary.”^[5] 

On this basis, the Court dismissed the business association’s application and allowed the SCS to continue providing life-saving care. As a decision of the Federal Court of Canada interpreting federal legislation, the 2019 CABA case is binding on the actions of the City of Vancouver.

Order of the Minister of Health No. M488

Requiring (much less prioritizing) community consultation for OPS’ approval or operations would be inconsistent not only with Federal Court precedent, but also with the Order of the Minister of Health in effect since December 9, 2016 (No. M488) regarding OPS.

Even permitting community consultation is inconsistent with Order No. M488, which nowhere stipulates consultation as a pre-condition of OPS, and directs “British Columbia Emergency Health Services and the regional health boards to provide, on the advice of the provincial health officer … overdose prevention services for the purpose of monitoring persons who are at risk of overdose, and providing rapid intervention as and when necessary, as ancillary health services, in any place there is a need for these services, as determined by the level of overdose related morbidity and mortality.”^[6]

Rather, in line with Canada’s SCS legislation, the Minister of Health identifies public health need (as determined by overdose rates and attendant harms) as the key consideration for determining where and when OPS are required. Were community organizations in Vancouver suddenly given an extra-legislative right to provide input in OPS determinations (an exceptional right not afforded in relation to other health services in Canada),^[7] the decision-making powers afforded by Order to the provincial health officer, BC Emergency Health Services, and the regional health boards would be fettered. 

Community Consultation for OPS is inconsistent with the Canadian Charter of Rights and Freedoms

In Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, the Supreme Court of Canada found that decisions to approve SCS must align with the Charter rights of people who use drugs:

“[T]he Minister[‘s] discretion in determining whether to grant exemptions…must be exercised in accordance with the requirements of 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.”^[8]

As we argued in CABA, the prioritization of public health in decisions regarding supervised consumption is the only way to proportionately protect drug users’ right not to be unlawfully deprived of access to life-saving health care at those sites.

Just like SCS, OPS constitute a life-saving health service. Under section 7 of the Charter (the right to life, liberty, and security of the person), delaying access to medical care, imposing restrictions that lead to inadequate access to services, and causing physical health risks or mental suffering are all state actions that have been deemed unconstitutional.^[9] Moreover, under section 15, access to health services must be equal and not discriminatory on the basis of illness or disability.

Community groups opposed to life-saving supervised consumption have long been a barrier to setting up SCS and OPS, which are already frequently burdened by numerous bureaucratic and political roadblocks. To require or permit additional community consultation here may amount to an unconstitutional roadblock not only to this and future OPS, whose operations could be jeopardized were this Council to depart with legal precedent. As the former federal Minister of Health, Jane Philpott, emphasized when streamlining the legislation for approving SCS, “the more requirements or rules that are added to the process for accessing supervised consumption sites, the less accessible this service becomes to the vulnerable population it is meant to serve.”^[10]

The City has publicly supported evidence-based drug policy. This would be an excellent opportunity to deliver action, rather than mere sentiments. We trust that Mayor and Council’s decision will reflect efforts to de-stigmatize desperately-needed health services that are too often the target of stigma and intolerance.

Should you have any questions, please do not hesitate to be in touch.

Sincerely,

Caitlin Shane
Staff Lawyer - Pivot Legal Society
[email protected]

Donald Macpherson & Scott Bernstein
Executive Director & Director of Policy
Canadian Drug Policy Coalition

cc:            
Dr. Patricia Daly
Chief Medical Health Officer
Vancouver Coastal Health

Catharine Hume & Greg Richmond
Executive Directors
RainCity Housing and Support

[1] https://www.onlinelibrary.wiley.com/doi/10.1111/add.14664

[2] https://www.cbc.ca/news/canada/british-columbia/overdose-deaths-bc-august-2020-1.5735247; https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf 

[3] This aligns with guidelines set out by the International Association for Public Participation: https://vancouver.ca/your-government/how-we-do-community-engagement.aspx#definition

[4]https://www.pivotlegal.org/community_outcry_should_not_block_health_and_safety_measures_for_people_who_are_homeless

[5] CABA, at para 100. Emphasis added.

[6] https://www.bclaws.ca/civix/document/id/mo/hmo/m0488_2016

[7] http://www.aidslaw.ca/site/wp-content/uploads/2014/10/C2-QA_Oct2014-ENG.pdf at pages 9-10.

[8] Attorney General v PHS Community Services Society, 2011 SCC 44 at para 153.

[9] R v Morgentaler, [1988] 1 SCR 30; Blencoe v British Columbia, 2000 SCC 44; Chaoulli v Quebec (Attorney General), 2005 SCC 35.

[10] Canada, Parliament, House of Commons, House of Commons Debates, 42^nd Parl., 1^st Sess., no. 176 (12 May 2017), at p. 11130.