RSS FeedSafe injection facilities and arbitrary government decisions
I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?
But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.
Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.
The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.
In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.
The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.
Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.
Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Intervenors for Insite
IHRA joins International Coalition Intervening to save Vancouver Safe-Injection Site:
An international coalition of harm reduction experts — comprised of the International Harm Reduction Association (IHRA), the Canadian HIV/AIDS Legal Network, and CACTUS Montréal — has today been granted intervener status to appear before the Supreme Court of Canada to support Insite, Vancouver’s supervised injection site, against the Canadian government’s attempts to shutter it. [...]
Adding insult to injury, a 2009 provincially funded report acknowledging the benefits of safe-injection sites and calling for their implementation was recently revealed to have been suppressed for a full year by Quebec’s Minister of Health. Despite this climate of resistance, CACTUS has announced its intention to open a supervised injection site in Montréal later this year.
Dr. Gabor Maté of Insite
Democracy Now has an interview with Dr. Gabor Maté of Insite,
AMY GOODMAN: The Obama administration’s budget proposal for the Office of National Drug Control Policy sets aside nearly twice the amount of funding for law enforcement and criminalization than for treatment and prevention of drug addiction. Out of a total of $15.5 billion, some $10 billion are used for enforcement. National Drug Control Policy Gil Kerlikowske praised the numbers as reflecting a “balanced and comprehensive drug strategy.”
Well, just last year, the newly appointed drug czar and former Seattle police chief had called for an end to the so-called “war on drugs,” raising hopes among advocates of harm-reduction approaches to curbing drug use. In an interview with the Wall Street Journal last May, Kerlikowske said, “People see a war as a war on them. We’re not at war with people in this country.”
Well, I’m joined right now here in the Democracy Now! studio by a doctor who has spent the last twelve years working with one of the densest populations of drug addicts in the world. Dr. Gabor Maté is the staff physician at the Portland Hotel, a residence and harm reduction facility in Vancouver, Canada’s Downtown Eastside. Dr. Maté also treats addicts at the only safe-injection site in North America, a center that’s come under fire from Canada’s Conservative government led by Stephen Harper.
Dr. Gabor Maté is the bestselling author of four books. His latest, just out in the United States, is called In the Realm of Hungry Ghosts: Close Encounters with Addiction…
DR. GABOR MATÉ: Well, the first point to get there is that if people who become severe addicts, as shown by all the studies, were for the most part abused children, then we realize that the war on drugs is actually waged against people that were abused from the moment they were born, or from an early age on. In other words, we’re punishing people for having been abused. That’s the first point.
The second point is, is that the research clearly shows that the biggest driver of addictive relapse and addictive behavior is actually stress. In North America right now, because of the economic crisis, a lot of people are eating junk food, because junk foods release endorphins and dopamine in the brain. So that stress drives addiction.
Now imagine a situation where we’re trying to figure out how to help addicts. Would we come up with a system that stresses them to the max? Who would design a system that ostracizes, marginalizes, impoverishes and ensures the disease of the addict, and hope, through that system, to rehabilitate large numbers? It can’t be done. In other words, the so-called “war on drugs,” which, as the new drug czar points out, is a war on people, actually entrenches addiction deeply. Furthermore, it institutionalizes people in facilities where the care is very—there’s no care. We call it a “correctional” system, but it doesn’t correct anything. It’s a punitive system. So people suffer more, and then they come out, and of course they’re more entrenched in their addiction than they were when they went in.
Interviews on Insite at the B.C. C.A.
The Solution is Insite, Part II
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.
Jason Lamarche on the Insite Program
As a follow-up to the previous post on the Insite program, here is some commentary from Jason Lamarche of the Liberal Minute.
The Harm Reduction Controversy & Injection Sites
Third post in a series on the First Annual Interprofessional Health Law Conference.
The harm reduction panel spoke about strategies for reducing communicable diseases. Most of the discussion focused on the controversy over injection sites.
The first legal injection site in North America was Insite in Vancouver, B.C. The downtown eastside area where the clinic is based was considered by the Canadian Community
Epidemiology Network on Drug Use (CCENDU) as the center of an injection drug epidemic.
The US Office of National Drug Control Policy called it “state-sponsored suicide,” and Harper later said, “We as a government will not use taxpayers’ money to fund drug use.”
The Solution is Insite
With an unabating drug epidemic and the winds of political change in the air, interest is growing in the United States for a less punitive and more liberal war on drugs.
One battle in this war is being fought, and won, in Canada by the City of Vancouver, British Columbia—and the tactics being used are controversial, to say the least.
No, not torture. In September 2003 Vancouver opened the first “safe injection site,” a legal facility for users of illegal narcotics. The facility is run by healthcare workers and funded by the provincial government, and it is the only facility of its kind in North America. It is called ‘Insite‘.
In July 2002 I travelled with a friend to Vancouver. We walked the streets of the then-notorious Downtown Eastside. Literally stepping over bodies and discarded needles, and politely declining invitations to enter alleyways, we met a young drug addict named Rob from Peterborough, Ontario. Boasting of his honesty, this former marathon runner told us he needed “$5 for crack.” We obliged, and were treated to a guided tour of misery, desperation, and sickness that exceeded anything I have ever seen in the developed world.
At the time of our visit, Insite had just been established; it was highly controversial and still illegal. I remember doubting that it would survive but coming to believe that it was Vancouver’s only hope.
In a terrific (though slightly dated) article entitled The needle and the damage undone, Mark Follman from Salon.com considers the challenges and successes of Insite since its establishment, as well as its potential application in the United States. Check it out.
