The Supreme Court of Canada s Decision in the Insite Case: CPHA s Role and Directions for the Future Andrea Gonsalves Stockwoods LLP 1
What the Insite case was about ISSUE: Does the federal prohibition on possession of controlled substances violate the Charter rights of Insite s clients? Subsection 4(1) of the Controlled Drugs and Substances Act prohibits possession of controlled substances Minister of Health may grant exemptions from the prohibition if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest 2
What the Insite case was about Section 7 of the Canadian Charter of Rights and Freedoms: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 3
CPHA s Involvement CPHA required to seek leave to intervene Application for leave to intervene focuses on the applicant s unique interest in the appeal and perspective on the issues CPHA was granted leave to intervene, along with 11 other interveners Only one of which supported the Attorney General of Canada s position 4
CPHA s Argument Focused on the public health dimensions of the case Not just a clash between individual claimants and government Permitting Insite to operate promotes both individual rights to life, liberty and security of the person and the health of the broader public Case is about evidence, science and public health not morality 5
CPHA s Argument Trial Judge s factual findings: Addiction is an illness Through Insite, persons addicted to drugs reduce their risk of overdose; avoid the risk of being infected or infecting others by injection; and can access counselling and consultation which may lead to abstinence and rehabilitation. Drugs consumed by injection do not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment, techniques, and procedures for injection permits the transmission of those infections. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals. Insite did not increase drug-related loitering, drug dealing, crime or drug use in the community. Insite has not sent a message that drug use is acceptable. Quite the contrary. 6
CPHA s Argument Concentrated on the principles of fundamental justice Objective of the law: public health and safety A law must be connected to its objective The possession law: Undermines its own public health objective (i.e. arbitrariness) Goes beyond what is necessary to meet the objective (i.e. overbreadth) Has effects that are too extreme for any legitimate government interest (i.e. gross disproportionality) An exemption would promote individual and public health 7
The Supreme Court s Decision First branch of s. 7: deprivation of the right to life, liberty and security of the person If no exemption granted, Insite will not operate Insite s clients would be deprived of life-saving medical care, engaging their rights to life and security of the person Security of the person includes a right to access medical treatment for a condition that endangers one s life or health, without fear of criminal sanction SCC rejected Canada s choice argument Risk to life and health is caused by the prohibition, not by the choice to use drugs 8
The Supreme Court s Decision Second branch of s. 7: deprivation not in accordance with principles of fundamental justice Problem not the legislation, but rather the fact that the Minister of Health refused to grant an exemption to Insite Refusal to grant an exemption was not in accordance with the principles of fundamental justice Arbitrariness Grossly disproportionality 9
Arbitrariness Minister s decision to grant an exemption or not must target the purpose of the legislation Purpose: protection of health and public safety Decision not to exempt Insite undermined the purpose Risk of death and disease is reduced when injection drug users inject under supervision of a health professional Insite did not contribute to increased crime rates, increased incidents of public injection, or relapse rates Exempting Insite would have furthered the objectives of public health and safety 10
Gross Disproportionality Benefits of Insite have been proven No discernable negative impact on Canada s public safety and health objectives Effect of denying Insite s services to the population it serves is grossly disproportionate to any benefit that Canada might derive 11
Remedy Minister of Health ordered to grant an exemption to Insite Extraordinary for the SCC to order a Minister to do something Minister not precluded from withdrawing the exemption should changed circumstances at Insite so require Order that he grant the exemption does not fetter the Minister s discretion with respect to future applications for exemptions, whether for other premises, or for Insite 12
Implications Insite is a paradigm case Minister had granted exemptions for 5 years Insite is supported by local authorities and the province Insite has been subjected to in-depth study over a number of years Success less certain in other cases without the body of evidence proving the success and lack of negative effects 13
Implications Not clear from the SCC decision: Under what circumstances the Minister is required to grant other exemptions What change of circumstances could justify Minister withdrawing the exemption Nothing in SCC decision compels a government to create a supervised injection site 14
Implications Other public health issues may lend themselves to a successful Charter challenge Key considerations in framing a public health issue as a Charter case Only negative rights Danger to life or health State action must cause the deprivation of the right Court will expect evidence of the public health benefits Relationship between individual rights and public health 15
Implications Potential applications: Prostitution laws Bedford v Canada (2012 decision of the Ontario Court of Appeal; Canada seeking leave to appeal to the SCC) Medical marijuana Clean drinking water Imprisonment Mandatory minimum sentences Prison conditions 16