I’ve mentioned the controversy surrounding the safe injection sites before.  But I went in for a closer look recently in Vancouver, when I attended the appeal by the Crown of the decision of Pitfield J. last year in PHS Community Services Society v. Canada, [2008] B.C.J. No. 951; 293 D.L.R. (4th) 392 (B.C. S.C.) that allowed the facility to stay open.

The Respondents in this case were seeking the extension of an exemption for the Insite facility under the Controlled Drugs and Substance Act (CDSA).

The opposition to the exception by the Federal Crown, appealing the decision made by the B.C. trial court last summer, was based on the rationale that the science on harm reduction was mixed, and the money could be better allocated elsewhere, according to information by the Minister publicly found on the website.

The Appellants themselves characterized their objections slightly differently. The CDSA formed a regulatory scheme to protect the public from many different types of dangerous substances. In this context of protecting the public, they were well within their jurisdiction of Federal powers to target the program for termination.

The Appellants also rebuffed Federalism arguments of this being a health service exclusively in the provincial jurisdiction by stating that there was no legal requirement by the province to provide this type of service. If harm reduction strategies were explicitly mentioned by statute the situation would be very different.

However, the province argued that part of the reason for having health services administered provincially is to allow a more regionalized approach to health care. Different provinces can take different approaches to health problems and learn from each other’s successes and failures, thereby saving resources and energy and providing the public better health services.

The Appellants also rebuffed the claim about science on harm reduction being mixed, stating there is a near complete consensus that these approaches are effective in reducing the transmission of diseases. The Federal Crown also failed to realize that this program acted as a gateway to other services like counseling and addiction treatment.

The analogy from R v. Parker (2000), 49 O.R. (3d) 481, [2000] O.J. No. 2787 (Ont. C.A.) used in this case was mischaracterized, according to the Appellants. In that case, the marijuana in question was not used to cure the epilepsy, it was used to treat seizures. The illicit substances in this case were being used directly to address the disease in question, namely a drug addiction.

Position of B.C. Civil Liberties Association

The B.C. Civil Liberties Association acted as interveners in the case, and made submissions that the CDSA was contrary to the principles of fundamental justice in its application to Insite.  In addition to the arbitrariness undermining the principles of fundamental justice in s. 7 of the Charter recognized at trial, the interveners also argued that it was overly broad and grossly disproportionate to its goals.

Interveners also said that closing Insite would violate s. 15 of the Charter, because it was related to human dignity.  They cited the recent Federal Court decision of Khadr v. Canada, [2009] F.C.J. No. 462, which came out last April,

The Duty to Protect is a Principle of Fundamental Justice

71 I find that the three criteria from D.B., above, support the recognition of a duty to protect persons in Mr. Khadr’s circumstances as a principle of fundamental justice.

72 First, it is a legal principle, expressed in clear and forceful language in the international instruments discussed above.

73 Second, given the broad international support for those instruments, I conclude that they represent a consensus that the duties contained in them have a fundamental character. I also note that the Supreme Court of Canada has already recognized that special treatment of young persons caught up in the legal system is a principle of fundamental justice given their diminished moral culpability. In doing so, it relied in part on the Convention on the Rights of the Child (D.B., above, at para. 60). Further, the Court has also invoked the CRC in recognizing the “importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 71).

74 Third, the scope of the duty to protect can be adequately identified and manageably applied to deprivations of life, liberty and security of the person. In this context, I rely on the special circumstances that apply to Mr. Khadr’s case and the multiplicity of departures from international norms that have taken place. Certainly, the scope of the duty to protect can be clearly articulated and applied to the facts before me.

75 I find, therefore, that the principles of fundamental justice obliged Canada to protect Mr. Khadr by taking appropriate steps to ensure that his treatment accorded with international human rights norms.

A similar duty should be extended to intravenous drug users who are attempting to seek help for their condition.  They rejected the notion that the scope of one Charter right does not limit the scope of another right, pointing to para. 29 of the Re B.C. Motor Vehicle Act.  S. 15 does not have a threshold, and the comparative analysis should be more individualized.

The Decision

Although there were some interesting legal arguments presented that I’ve omitted for the sake of brevity, the decision should be an interesting one, especially if they expound or decide on any of the positions taken by the parties.

The decision is expected within a few months.  The case is high profile enough and addresses important legal issues that it could potentially be appealed to the SCC.

Cross-posted from Slaw