In October 2008 I wrote a bit about my personal opinions and experiences with Insite, a unique, government-funded legal safe injection site that has been on the front lines of Vancouver’s drug epidemic. Insite was also recently the source of much attention at the First Annual Interprofessional Health Law Conference, covered by Omar. To my surprise, Insite and the legal issues surrounding it recently became the subject matter of a memorandum assigned to me by my “senior partner” (Legal Research and Writing professor). What I found in the course of writing this memo was a defective and hypocritical law, the Controlled Drugs and Substances Act (“CDSA”), and a brave decision in the Supreme Court of British Columbia that might one day change Canada’s drug laws for the better.
The pretend facts:
My client has a life story so tragic you’d swear there was an intelligent (and sinister) designer. Childhood epilepsy, bullying, learning disabilities: these are his sorry foundations. As a teenager, his sister became a domestic terrorist until she accidentally blew herself up. Unfortunately, she managed to poison his reputation before her death such that he could barely get employed as an adult. In a previous memo, I even learned that he has even had his human rights violated. Because of confidentiality, I can’t go into imaginary details. Recently, chronic back pain and despair drove him to heroin. Being the classic underdog good-guy that he is, he soon went to an addiction treatment clinic in Happy Valley, Ontario and, with the help of staff, reduced his dose to the smallest amount possible to prevent withdrawal symptoms and his chronic pain. Better still, staff at the clinic placed him at the top of a waiting list to become a patient at their legal safe injection site set to launch pending its approval from the Minister of Health (not gonna happen).
After a visit at the clinic, my client was arrested and charged with simple possession of heroin, contrary to section 4(1) of the CDSA. His only chance, other than pleading guilty, was a Charter challenge against the very heart of Canada’s drug control law…
The Controlled Drugs and Substances Act:
Section 4(1) prohibits possession of controlled substances, including heroin. Section 5(1) prohibits possession for the purposes of trafficking. Lastly, section 56 provides a source for the legal possession of a controlled substance by exemption from the Minister of Health (“Minister”) where necessary for a medical or scientific purpose or where otherwise in the public interest.
The case law:
The three most pivotal cases on the constitutionality of section 4(1), 5(1), and 56 of the CDSA are R. v. Parker, R. v. Malmo-Levine, and PHS Community Services Society v. Canada (Attorney General).
R. v. Parker is a landmark Ontario Court of Appeal decision in which the charge of possession and cultivation of marijuana was successfully defended on Charter grounds. The accused suffered from epilepsy and life-threatening seizures. He found that he could substantially reduce the incidence of seizures by smoking marijuana. As he could not locate a lawful source of marijuana, he grew his own. The accused was charged with possession of marijuana under the CDSA.
The court found that the accused’s section 7 Charter rights to life and security of the person were deprived by the threat of criminal sanction which prevented him from accessing a treatment necessary to his health.
The court considered whether the violations of the accused’s rights were in accordance with the fundamental principles of justice. Rosenberg J.A., writing for the court, found that, among other breaches, “the principles of fundamental justice are breached where the deprivation of the right in question does little or nothing to enhance the state’s interest”. Rosenberg J.A. then turned to the facts of the case:
The blanket prohibition on possession and cultivation, without an exception for medical use, does little or nothing to enhance the state interest. To the extent that the state’s interest in prohibiting marihuana is to prevent the harms associated with marihuana use including protecting the health of users, it is irrational to deprive a person of the drug when he or she requires it to maintain their health. As in Morgentaler, the court must consider the actual effect of the legislation. While the exemption for therapeutic abortions was designed to preserve the pregnant woman’s health, it had the opposite effect in some cases by imposing unreasonable procedural requirements and delays If the purpose of the marihuana prohibition is to protect the health of users and thereby eliminate the related costs to society, the overbroad prohibition preventing access to the drug to persons like Parker, who require it to preserve their health, defeats that objective.
The court then looked closely at the ministerial exemption provision in section 56 of the CDSA. The court noted that the legislation does not require the Minister to give an exemption in the case of a medical necessity. The court found that due to the lack of an adequate legislated standard for medical necessity, the lack of procedure, and the vesting of an unfettered discretion in the Minister, the deprivation of the accused’s right to security of the person was arbitrary and in breach of the principles of fundamental justice.
The court then considered whether the violations of the accused’s right under section 7 of the Charter could be justified under section 1. The Crown, in fact, did not attempt to argue this. The court found that the purpose of the CDSA was to prevent harm to the health of Canadians and the resulting costs to society. However, the broad nature of the marijuana prohibition had the effect of impairing the health of the accused and others who require it for medical purposes. In this sense, the CDSA worked in opposition to one of its primary objectives and thus could be described as “arbitrary” or “unfair”. This arbitrariness or unfairness could not be remedied by the section 56 exemption, since it, too, was arbitrary in that it vested plenary discretion in the Minister. The court also found that the broad prohibition failed the minimal impairment condition set out in R. v. Heywood. Prosecution of those who require marihuana for medical purposes did not achieve any of the three objectives of the CDSA identified by the Crown: preventing harm, international treaty obligations, and control of the trade in illicit drugs.
The trial judge’s decision to stay the charges against the accused was upheld. The court held that the appropriate remedy was to declare the prohibition on the possession of marijuana in the CDSA to be of no force or effect and to suspend the declaration of invalidity for one year.
R. v. Malmo-Levine; R. v. Caine is a leading Supreme Court of Canada (“SCC”) decision on constitutional law. The decision involved two cases. In the first case, the accused (“M”) was charged with trafficking in marijuana under the former Narcotic Control Act. In the second case, the accused (“C”) was charged with possession of marijuana under the former Act. Both accused challenged the constitutionality of the criminalization of marijuana under the Act. The SCC rejected these challenges and upheld their convictions.
The court considered the issue of whether the marijuana prohibition, and in particular the possibility of imprisonment, violated the Charter. The court found that the desire to build a lifestyle around the recreational use of marihuana did not attract Charter protection.
M argued that the violation of his section 7 right to liberty caused by the marijuana prohibition and resulting imprisonment did not accord with a principle of fundamental justice. M posited a new principle of fundamental justice, which he called the “harm principle”. In rejecting M’s argument, the court found that a rule or principle constitutes a principle of fundamental justice for the purposes of section 7 if it is a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and that it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
PHS Community Services Society v. Canada (Attorney General) is a recent British Columbia Supreme Court decision on the constitutionality of sections 4(1) and 5(1) of the CDSA. In this case, the plaintiffs sought relief that would obviate the need for exemptions under section 56 of the CDSA necessary to operate the Vancouver Safe Injection Site (“Insite”). As already discussed, when within the confines of Insite, drug users are not liable to prosecution for possession or trafficking of a controlled substance. Insite’s ability to operate was dependent upon this exemption, and it was set to expire in just one month.
Pitfield J. recognized drug addiction as an illness which if not managed may lead to death. He noted that this illness does not always arise from an avoidable and thus blameworthy personal choice:
Ms. Tomic [a plaintiff] is 39 years of age. She was born and raised in the vicinity of Calgary, Alberta, addicted to speed because her mother had been addicted to the substance throughout pregnancy. Ms. Tomic’s first experience with illegal drugs occurred when she was seven years old. A relative injected her with speed which she continued to use throughout her childhood.
Ms. Tomic first came to Vancouver when she was 13 or 14 years of age. She continued to use speed and a combination of Talwin and Ritalin throughout her teens. She began injecting cocaine at the age of 19 or 20 when she was living in the downtown eastside. An acquaintance gave her the first injection. Ms. Tomic resorted to prostitution in order to obtain funds to buy cocaine.
Ms. Tomic first experienced heroin when she was 26 or 27 years of age. She bought drugs from a dealer believing she was buying cocaine. Shortly after injection, she realized that she had been provided with heroin which has since been her drug of choice, although she admits to smoking crack cocaine since it became readily available in the downtown eastside.
[…] With respect, the subject with which these actions are concerned has moved beyond the question of choice to consume in the first instance. As I have said elsewhere in these reasons, the original personal decision to inject narcotics arose from a variety of circumstances, some of which commend themselves to choice, while others do not. However unfortunate, damaging, inexplicable and personal the original choice may have been, the result is an illness called addiction. The failure to manage the addiction in all of its aspects may lead to death, whether from overdose or other illness resulting from unsafe injection practices.
Pitfield J. found that section 4(1) of the CDSA engages the right to life and security under section of the Charter because it prevents healthier and safer injection where the risk of mortality resulting from overdose can be managed, and forces the user who is ill from addiction to resort to unhealthy and unsafe injection in an environment where there is a significant and measurable risk of morbidity or death.
Moving to the principles of fundamental justice, Pitfield J. found that section 4(1) of the CDSA, which applied to possession for every purpose without discrimination or differentiation as to its effect, was arbitrary. Particularly, it prohibited the management of addiction and its associated health risks at Insite. It treated all consumption of controlled substances, whether addictive or not, and whether by an addict or not, in the same manner. Pitfield J. cited reasons in R. v. Parker as to why this arbitrariness was not remedied by section 56 of the CDSA. It was also found that instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributed to the very harm it sought to prevent. It was inconsistent with the state’s interest in fostering individual and community health, and preventing death and disease. Lastly, this infringement was not saved by section 1 of the Charter, for reasons similar to those found in R. v. Parker. Pitfield J. held that sections 4(1) and 5(1) of the CDSA unjustifiably infringed section 7 of the Charter and were therefore to be of no force and effect.
The declaration of constitutional invalidity was suspended until June 30, 2009. In the interim, users and staff at Insite were granted a constitutional exemption from the application of sections 4(1) and 5(1) of the CDSA.
Federal Health Minister Tony Clement immediately appealed the decision. The appeal will be heard in April 2009.
The new defence:
There’s no need to go through the rest of the memo because, since the Insite decision, it’s already begun to play out in reality.
A Victoria, B.C. defence lawyer is arguing that the Charter rights of a homeless heroin addict were violated when he was arrested with a needle and 0.3 mm if morphine in his hand (the amount required to stop addiction sickness) and charged with possession of a controlled substance. Citing the Insite decision, Katherine Tyhurst maintains that his Charter rights were violated because the CDSA does not recognize his drug addiction as a health issue, and because he does not have access to a supervised injection site like Insite. “How can someone’s conduct be criminal in Victoria, but not in Vancouver where drug addicts have access to Insite?” she asked.
The trial began a few weeks ago.
For the record, the words “treatment” and “rehabilitation” are each used just once in the entire 18,340 words long statute. Perhaps, to some, this isn’t surprising. The CDSA is solely a drug control and enforcement law after all. Therefore, its content should reflect that. In fact, that was not Parliament’s sole intention when the CDSA was just a bill about to be passed in to law.
Listen now to the ghosts of good intentions, for they represent the living:
House of Common Debates, No. 250 (30 Oct 1995) at 15950 (Hon. Hedy Fry).
The Acting Speaker (Mr. Kilger): When shall the bill be read the third time? By unanimous consent now?
Some hon. members: Agreed.
Hon. David Dingwall (for the Minister of Health, Lib.) moved that the bill be read the third time and passed.
Ms. Hedy Fry (Parliamentary Secretary to Minister of Health, Lib.): Mr. Speaker, I rise to speak in support of Bill C-7.
The revisions to the bill, the changes made since it passed second reading in the House, combine two quite different approaches to the control of drugs. The approaches are different but they are actually complementary.
The first enshrines an attitude of tolerance, compassion and concern for the drug addicted person. The government believes that someone convicted of a drug offence, a user who shows genuine desire to recover from his or her addiction deserves the chance and opportunity to rebuild and renew their lives on a healthy, law-abiding basis.
This component speaks therefore of rehabilitation and speaks to the health aspect of drug use.
Drugs and drug abuse are basically social and health problems. They find their way, however, into the criminal justice system not because they naturally and necessarily belong there, but because we have yet to devise a better method of control.
By including the concepts of treatment and rehabilitation, this bill also acknowledges the important health dimensions of drug abuse. It begins to rebalance that emphasis on substance over user and coercion over persuasion. It is not a new policy and it is not even a big change, but it is an important shift in perspective. It opens the way to alternate approaches and choices in addressing a disease that afflicts hundreds of thousands of Canadians and the social well-being of Canada. [emphasis added]
It’s enough to make you want to do drugs or fight it out in court. For the time being at least, many people will still be doing both.
The Rate of detoxification service use and its impact among a cohort of supervised injecting facility users report states that the opening of Insite was associated with a greater than 30% increase in the rate of detoxification service use among users in comparison to the year prior to Insite’s opening. Furthermore, subsequent analysis found that detoxification service use was associated with increased use of methadone and other forms of addiction treatment, as well as reduced injecting at Insite. According to the authors of the report,
The proposed mechanism for this marked increase in residential detoxification is that Insite facilitates sustained contact between the health-care system and a population which is normally highly marginalized and difficult to reach with conventional addiction treatment services.
Another report, Impact of a medically supervised safer injection facility on community drug use patterns, found that the opening of Insite did not adversely affect community drug use, including the rates of relapse into injected drug use, stopping injected drug use, or seeking treatment. The report also found that Insite appears to have improved public order and reduced syringe sharing.
Addiction has also been identified as a factor contributing to crime. The Impact of a medically supervised safer injecting facility on drug dealing and other drug-related crime report examined crime rates in the neighbourhood surrounding Insite during the year before versus the year after Insite opened. The report found no increases in drug trafficking, assaults/robbery (measured as a single category), and a decline in vehicle break-ins/vehicle theft (measured as a single category).