SAFE INJECTION FACILITIES: COMPELLING GOVERNMENT TO ACT
BY Perry Bulwer, B.A., LL.B.
From 1999 to 2002 I was a law student at the University of British Columbia in Vancouver, Canada. I was also involved with various community-based advocacy groups supporting the rights of drug addicts and sex-trade workers. This paper, written in December, 2001 for one of my courses, was a response to government inaction in the face of a publicly declared health crisis. It was subsequently published on the website of Pivot Legal, which at the time was a new legal advocacy organization serving Vancouver's most marginalized citizens. Pivot and its lawyers have since received several awards for outstanding community service. This paper, its companion piece on international law issues, as well as similar research were used by Pivot activists in the fight to force the government to act. In September 2003 North America's first legal supervised injection site, INSITE, began operating in Vancouver, Canada as a scientific pilot research project. The scientific evidence to date shows that such a facility saves lives by preventing overdose deaths and the spread of communicable diseases. However, the Conservative government under Stephen Harper has questioned the effectiveness of the service and has threatened to withdraw funding. In April 2008, the operaters of INSITE launched a constitutional case to test the federal government's power to close the facility. In May 2008, a letter leaked to the CBC revealed that doctors at the University of British Columbia's Department of Medicine last year unanimously urged Prime Minister Stephen Harper to keep INSITE open. On May 27, 2008 the B.C. Supreme Court struck down as unconstitutional sections of the Controlled Drugs and Substances Act. It gave Ottawa until June 30, 2009 to fix the law and bring it inline with the constitutional principle of fundamental justice. The court also granted INSITE an immediate exemption, allowing it to remain open. Ottawa must now update its laws to ensure provinces are free to provide health care services to addicts. Government opposition to effective harm reduction measures is nothing new, as this article explores. [This paper is cited several times in a report published by the Joseph Rowntree Foundation in the UK titled "Paper F: Setting up a drug consumption room" ]
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The purpose of this paper is to explore the possibility of compelling the British Columbia provincial government, through legal action, to establish and fund Safe Injection Facilities (SIFs) as part of a program of health services for injection drug users (IDUs). Before examining the legal issues I will provide a brief background to the problem of infectious diseases and fatal drug overdoses. I will then consider the government policy response to the existing health crisis. Following that is a description of the function of SIFs and their effectiveness in other jurisdictions. I will then discuss the current legal framework and the impediments to establishing SIFs. Next, I consider whether there is a cause of action under human rights legislation. Finally, I turn to constitutional issues, namely sections 7 and 15 of the Canadian Charter of Rights and Freedoms. I conclude that there is evidence and the legal basis, under human rights legislation and the Constitution, to support an action against the government compelling it to establish SIFs.
BACKGROUND
In 1997, the National Task Force on HIV, AIDS and Injection Drug Use declared that “Canada is in the midst of a public health crisis concerning HIV, AIDS and injection drug use…. The number of new HIV infections among injection drug users is increasing rapidly, with Vancouver now having the highest reported rate in North America”.1 In that same year the Vancouver/Richmond Health Board declared a public health emergency in response to the emergence of an HIV/AIDS epidemic, as well as the high rate of fatal overdoses among IDUs, centred primarily, but not exclusively, in the Downtown Eastside.2
Recent estimates put the HIV prevalence rate among IDUs in Vancouver between 23 and 28 percent, and IDUs account for 38 percent of new HIV infections.3 Another serious communicable disease transmitted easily from one needle-sharing IDU to another is Hepatitis C. It is estimated that 85 percent of IDUs in Vancouver are infected with that disease.4 Tuberculosis, Hepatitis A & B, and syphilis also occur at epidemic rates among Vancouver IDUs. Tuberculosis, for example, had a 38 percent prevalence rate among Vancouver IDUs in 1998.5 Included in this epidemic of diseases among IDUs is an epidemic of fatal drug overdoses. From 1996 to 2000, there was an annual average of 312 overdose deaths in the Vancouver region.6
These various statistics are alarming, and even more so in light of the fact that the provincial government has apparently done little to stem this rising tide of disease and death. The problems associated with illicit drug use, while magnified, are not unique to Vancouver. However, in several European cities governments long ago proactively developed comprehensive harm reduction programs to deal with the public health issues associated with injection drug use. As part of a continuum of health care and associated services for drug addicts, SIFs were opened in several cities. Evidence indicates that these facilities are associated with an array of positive health and social outcomes, including reducing disease transmission and fatal overdoses. Considering the serious problem in Vancouver, the provincial government should establish and fund SIFs.
PROVINCIAL POLICY ON ADDICTION ISSUES
Under the previous provincial government, responsibility for addiction and other drug-related services fell to the Ministry for Children and Families. According to a 1998 review of alcohol and drug services in Vancouver by that Ministry there were major problems with existing service delivery, particularly in terms of accessibility, scope and the number of services available.7 That report stated:
The impact of the lack of adequate resources cannot be overstated. The simple fact is: there is not enough of anything, there are waiting lists for everything and we are chronically under-serving many. There is not only a need for more of the same, but new and innovative approaches need to be developed to attend to emerging trends and issues.8
The problem is especially acute for the most vulnerable populations such as IDUs who have difficulty accessing health care. A 1999 study suggested that “…access to drug and alcohol treatment, methadone maintenance and counseling services has been woefully inadequate in the downtown eastside and had diminished even further since 1995”.9
The new provincial government transferred responsibility for addiction services to the Ministry of Health Services, however, the range and level of services has not increased in response to the ongoing crisis. According to the previous Ministry’s
“strategic purposes”, the priorities for addiction services include supporting “…education and harm reduction strategies to prevent the spread of HIV and other related infectious diseases”.10 Perusal of the current Ministry’s website indicates that of the addiction services carried over from the previous government, very few are based on harm reduction, but are instead abstinence-based programs.11 This means that not only is the range and level of addiction services “woefully inadequate”, but those most in need, and most likely to perpetuate the cycle of disease, will not access what services are available due to the requirement of abstinence. Apparently, the recommendation that “new and innovative approaches need to be developed” 12 has not been carried out.
A recent comparative study observed that in Europe during the 1990s, following the implementation of broad harm reduction prevention measures, including SIFs, there was a steady decrease in IDU-related harm. During that same period, the opposite trend occurred in Canada, including Vancouver. There was very limited harm reduction programming, consisting mostly of limited needle exchange and methadone programs, while IDU-related harm continued to increase at alarming rates.13 Perhaps, then, a brief look at the European experience will help determine the appropriateness of SIFs for dealing with the health crisis here.
THE EFFICACY OF SIFS IN OTHER JURISDICTIONS
There are presently over 40 SIFs operating in various European countries, including Germany, Switzerland and the Netherlands. Other countries planning or in the process of setting up SIFs include Spain and Australia.14 There are three primary goals of SIFs: to prevent the spread of drug-related disease by providing sanitary conditions and clean equipment for injection drug use; to prevent overdose deaths by providing supervision of drug injections by medically trained staff who can immediately intervene when problems occur; and the reintegration of drug users within mainstream society by providing a gateway through which injection drug users can access the health care system.15
Evidence suggests that those goals are being met in places where SIFs are operating. In Germany and Switzerland, large reductions in overdose deaths were reported in areas served by SIFs. As well, HIV/AIDS prevalence rates in drug users showed significant declines where SIFs were part of a comprehensive harm reduction strategy. Furthermore, various research data indicate that SIFs are an effective way of contacting the most marginalized drug users and connecting them to a wide array of health services they wouldn’t otherwise access.16 A comprehensive review of the literature reveals that SIFs are significantly reducing disease, hospitalization and death in those cities that have them. Moreover, they “have contributed to a stabilization of or improvement in general health and social functioning of clients” as a result of, among other things, the improved access to health services for addicts.17
I have presented here only a cursory view of the evidence as to the efficacy of SIFs. In any legal action brought against the government in an effort to compel it to establish SIFs, a great deal more evidence would be introduced on both sides of the issue. I am confident, however, based on the research, surveys and studies to date that there is evidence sufficient to establish that SIFs can effectively reduce death and disease transmission among IDUs. Therefore, the provincial government has at least a moral obligation to put people’s lives ahead of politics and establish SIFs. Whether or not it has a legal obligation remains to be seen, but first I will examine the current legal framework and the possible impediments to establishing SIFs.
OBSTACLES TO SIFS WITHIN THE EXISTING LEGAL FRAMEWORK
Under existing Canadian laws many of the activities associated with SIFs are illegal. The Controlled Drugs and Substances Act (CDSA) is the federal law that criminalizes certain conduct related to numerous prohibited substances listed in several schedules attached to the Act. Included in the list is heroin and cocaine, the two drugs most likely to be consumed in SIFs. While drug use by itself is not illegal, it is illegal to possess (s.4), traffic (s.5(1)), possess for the purpose of trafficking (s.5(2)), import and export (s.6), and produce a prohibited substance (s.7). Section 2(2)(b)(ii) of the CDSA specifies that
(b) a reference to a controlled substance includes a reference to
(ii) anything that contains or has on it a controlled substance and that is used or intended or designed for use
(A) in producing the substance, or
(B) in introducing the substance into a human body
Of concern to employees of SIFs would be the offences related to possession and trafficking. For the purposes of the CDSA, the definition of ‘possession’ is that found in section 4(3) of the Criminal Code:
(a) a person has anything in “possession” when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Subsection (a)(i) & (ii) describes what is referred to as ‘constructive’ possession and subsection (b) refers to ‘joint’ possession. Although it is extremely unlikely staff of SIFs would be guilty of personal possession, given the broad definition of possession it appears they could still be held criminally liable for possession of prohibited substances. However, a conviction for constructive or joint possession would depend on proof that the staff had a measure of control over the drugs. As long as clients of SIFs were responsible for obtaining, holding and administering their drugs without staff involvement then it is unlikely that staff would be found to have the necessary control. Although staff could also technically be charged with possession of certain drug paraphernalia such as syringes, this is extremely unlikely. Needle exchange programs across Canada are operating with impunity and there is no reason to believe SIFs would be any different in that regard.
Staff of SIFs might also be exposed to a charge of trafficking. Trafficking is defined in section 2(1) of the CDSA as selling, administering, giving, transferring, transporting, sending or delivering a prohibited substance. It also includes offering to do any of those things. Because staff would be providing equipment such as syringes they could be considered as administering the substance. However, as above, this would contradict the current enforcement standard regarding syringes. As long as strict guidelines are adhered to by staff, and they are merely observers, intervening only in emergencies, then trafficking charges should not arise.
In some situations staff of SIFs might also be open to charges of criminal negligence causing bodily harm or death. These offences are set out in sections 219-221 in the Criminal Code. In order to establish this offence the crown must prove the accused did or failed to do something they had a legal duty to do. It also must be shown that the accused showed “wanton or reckless disregard for the lives or safety of other persons”. However, case law suggests that for criminal negligence to apply the accused’s conduct must demonstrate a marked departure from the standard of behaviour expected of a reasonably prudent person in the circumstances.18 Standards of practice for SIFs are well established in all the European facilities. Though no SIF yet exists in Canada, standards of practice established in various health care services would be comparable to those required in a SIF. Some examples include needle exchange programs, the Street Nurse program in Vancouver, and hospital emergency rooms. Together, these various standards would define the standard of behaviour of a reasonably prudent person in the context of providing health services to IDUs.
A SIF or employee might also be vulnerable to civil action. If the facility allows the possession and use of illegal drugs and a patient suffers some harm, for example by overdosing, the facility might be liable for negligent care of the patient. The same would hold true if a patient harmed another patient using those drugs. However, to avoid both criminal and civil liability a facility or individual could claim the defence of necessity of treatment. The claim would be “…that allowing the use of illegal drugs was a necessity for the treatment of the patient and/or that, in the circumstances, it would be negligent to prohibit possession of a controlled substance by a patient, as this might interfere with essential medical treatment”.19 Supporting this defence is all the compelling evidence showing the benefits and reductions in harm associated with SIFs. Such evidence suggests that IDUs are at much greater risk of harm when injecting outside of SIFs as compared to inside them.
Furthermore, with regard to criminal liability, the Crown has the discretion whether or not to lay a charge. Current enforcement standards involving health care services operating in a “gray” area of the law, such as needle exchanges,20 suggest the same standard would apply to SIFs. Public funding of SIFs and the lack of moral blameworthiness on the part of staff working to reduce harm to IDUs are two other reasons why the Crown is unlikely to lay criminal charges. The exception might be in those rare situations where an employee caused harm by failing to meet the required standard of behaviour of the reasonable person in similar circumstances.
EXEMPTIONS AVAILABLE UNDER THE CDSA
Section 55(1)(a) of the CDSA permits the Governor in Council to make regulations respecting the circumstances in which controlled substances may be imported, exported, produced, packaged, sent, transported, delivered, sold provided, administered, possessed, obtained or otherwise dealt in. Section 55(1)(b) allows the identification of persons or classes of persons who may be authorized to conduct these activities. Section 56 of the CDSA allows the Minister of Health to
…exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.
The Minister’s power to exempt is extremely broad. It is almost unfettered discretion to make such an exemption based merely on his or her opinion. Even if the Minister does not accept that SIFs constitute a medical purpose, SIFs could still be exempted as serving the public interest. These two provisions could be applied to SIFs, their staff and clients thereby protecting them from criminal charges.
HUMAN RIGHTS LEGISLATION: THE DUTY TO ACCOMMODATE
In considering whether there is a foundation for taking legal action against the provincial government for failing to establish SIFs, I start with a look at human rights legislation. The B.C. Human Rights Code21 provides that
8(1) A person must not, without a bona fide and reasonable justification
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
The Canadian Human Rights Act,22 in section 3, also includes disability as a prohibited ground of discrimination. Section 25 of that Act defines ‘disability’ as including a “previous or existing dependence on alcohol or a drug”. Canadian courts have also, on several occasions, characterized drug dependency as a disability.23 For example, in R. v. Nguyen, Ryan J.A. quoted with approval a description of the “…sub-class of people who, by falling prey to heroin addiction, become effectively disabled from functioning as useful, self-supporting, productive members of society”.24
In saying that drug addicts, as disabled persons, are being discriminated against because SIFs are not available, the argument is that they are being denied reasonable access to quality health care services, something customarily available to the public. Due to the nature of their disability, drug addicts, as documented above, have difficulty accessing health care services. However, SIFs in other jurisdictions have proven highly effective in connecting drug addicts to essential health services that meet their particular needs and successfully reduce the rates of disease transmission and death by overdose. Does this mean, then, that the provincial government has a duty to accommodate the medical needs of IDUs by providing SIFs?
The B.C. Medicare Protection Act25 echoes the Canada Health Act26 by stating in the preamble an intention to “confirm and entrench universality, comprehensiveness, accessibility, portability and public administration as the guiding principles of the health care system”. Section 3 of that Act ensures “reasonable access…to quality medical care, health care and diagnostic services” to everyone in B.C., with no financial or other barriers. B.C.’s Health Act27 goes further and imposes a duty on the Minister of Health to do the following:
7(1)(a) take account of the interests of health and life among the people of B.C.,
(b) especially study the vital statistics of B.C.,
(c) endeavour to make an intelligent and profitable use of the collected records of death and sickness among the people,
(d) make sanitary investigations and inquiries about the cause of disease, and especially of an epidemic,
(e) inquire into the causes of varying rates of mortality and the effect of locality, employment and other circumstances on health,
(f) make suggestions as to the prevention and interception of contagious and infectious diseases the minister believes most effective and proper, and as will tend to prevent and limit as far as possible the rise and spread of disease…
There is a positive duty on the Minister beyond merely suggesting an opinion as to what the “most effective and proper” interventions are. The Minister is required to make studies, investigations and inquiries into the causes of epidemics such as are occurring in the Vancouver region. The Minister must also “endeavour [that is, make an earnest attempt] to make an intelligent and profitable use of” those investigations, inquiries and studies. The evidence to date overwhelmingly points to the fact that SIFs, especially as part of a comprehensive harm reduction program “will tend to prevent and limit as far as possible the rise and spread of disease”. There is strong support, therefore, for the proposition that the government must accommodate the special health needs of drug addicts, as disabled persons, not only to ensure their access to required health services, but also to prevent and control contagious diseases.
Accommodation means changing a rule or a practice, making adjustments or making alternative arrangements to remove the discriminatory effects on an individual or a group. SIFs would be an alternative arrangement allowing IDUs to access essential health services that, because of their disability, they have been unable to access. Of course, the government could defend against a claim of discrimination, but it would have to demonstrate that a complainant or a group of complainants could not be accommodated without undue hardship.
In a recent decision, British Columbia (Public Service Employees Relations Comm.)v. B.C.G.E.U.,28 also known as Meiorin, the Supreme Court of Canada clarified the law regarding the duty to accommodate. The result of that decision was to make the distinction between direct discrimination and adverse effect discrimination irrelevant, and to make the duty to accommodate to the point of undue hardship a key element of any defence to a claim of discrimination. Shortly after the Meiorin decision the same court, in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),29 also known as Grismer, reaffirmed its new test in Meiorin and applied it to the provision of services. In the new three-part test
…the defendant must prove that:
(1) it adopted the standard for a purpose or goal
that is rationally connected to the function
being performed;
(2) it adopted the standard in good faith, in the
belief that it is necessary for the
fulfillment of the purpose or goal; and
(3) the standard is reasonably necessary to
accomplish its purpose or goal in the sense
that the defendant cannot accommodate persons
with the characteristics of the claimant
without incurring undue hardship.30
In Grismer the Court held that the Superintendent of Motor Vehicles discriminated against Mr. Grismer by refusing licenses to all people with his particular optical disorder. The Superintendent was under a duty to accommodate Mr. Grismer by allowing him to be tested individually. Another example of accommodating disabled persons with regard to the provision of a service is in Chipperfield v. British Columbia (Ministry of Social Services).31 In that case the Ministry of Social Services had a duty to provide a transportation subsidy to persons receiving social assistance who have disabilities which prevent them from using public transit. The subsidy must be equivalent to the transportation subsidy provided to those who can use public transit.
There is a limit to the obligation to accommodate, that is, if it creates undue hardship on the service provider. This implies that some hardship is acceptable, but what constitutes undue hardship is a question of fact and will vary with the circumstances. There is no exhaustive list of factors, but in the context of SIFs two factors that a government resisting the establishment of SIFs might raise, other than the legal objections answered above, are safety and cost. However, it is difficult to imagine convincing arguments that SIFs would pose a safety risk to either employees or clients, or that the cost of funding SIFs would impose undue hardship on the government.
First of all, the very nature of SIFs is to promote safety, for both IDUs and the general public. The staff in SIFs would be at no greater risk than those in similar medical clinics and services. The evidence supports the contention that SIFs dramatically reduce harm. To oppose SIFs is, in essence, to prefer the current unsafe practices of injection drug use and all the serious, negative consequences that fall from that. Secondly, regarding costs, the government will actually save money in the long run by establishing SIFs. The Rand Institute in the U.S.A. has conducted numerous studies for several years on drug control policy. “A 1994 study commissioned by the U.S. office of National Drug Control Policy found that treatment is 10 times more cost effective than interdiction in reducing the use of cocaine in the United States. The same study found that every additional dollar invested in substance abuse treatment saves taxpayers $7.46 in societal costs and that additional domestic law enforcement efforts cost 15 times as much as treatment to achieve the same reduction in societal costs”.32 There is no reason to believe those figures would be substantially different in Canada. From a fiscal, as well as a public health policy point of view, it makes perfect sense for the B.C. government to fulfill its obligation to accommodate IDUs by establishing SIFs.
CONSTITUTIONAL ISSUES – SECTIONS 7 AND 15 OF THE CHARTER
A) SECTION 7
Any legal action taken to compel the government to establish SIFs should include constitutional arguments based on the right to security of the person and equality found in sections 7 and 15 respectively of the Canadian Charter of Rights and Freedoms. Section 7 provides that
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.
It may be that the provincial government is depriving IDUs of their constitutional rights by not establishing health care facilities, such as SIFs, that provide medically necessary services vital to the security of their person. In arguing this position the challenge would not be to any statute, but to government inaction in the face of a legislated duty to act. It is unlikely a challenge to the laws themselves, that is, those laws that stand in the way of establishing SIFs, would be successful. For one thing, there are valid defences to those laws. There is also the exemption in section 56 of the CDSA, even though that exemption is rarely given. By not exempting SIFs from application of the law the government is effectively denying IDUs their right to security of the person in the form of necessary medical services.
There have been successful section 7 challenges to government decisions to deny services. In New Brunswick (Minister of Health & Community Services) v. G.J.,33 the Supreme Court of Canada found that the provincial government had deprived the appellant of her right to security of the person by denying her legal aid in a complex child custody case. Lamer C.J. for the majority said:
the subject matter of s.7 is the state’s conduct
in the course of enforcing and securing compliance with the law, where the state’s conduct deprives an individual of his or her right to life, liberty or security of the person. I hasten to add, however, that s.7 is not limited solely to purely criminal or penal matters.34
In R. v. Morgentaler, Beetz J. stated:
“Security of the person” must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction.35
In Rodriguez v. British Columbia (A.G.), Sopinka J., speaking for the majority said
There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.36
In R. v. Parker, a case involving the use of a prohibited substance, marijuana, for medical purposes, Rosenburg J.A., relying on the decisions in Morgentaler and Rodriguez, concluded
that deprivation by means of a criminal sanction of access to medication reasonably required for the treatment of a medical condition that threatens life or health constitutes a deprivation of the security of the person…. Depriving a patient of medication in such circumstances, through a criminal sanction, also constitutes a serious interference with both physical and psychological integrity.37
The criminal sanctions that prevent the establishment of SIFs deprive IDUs, whose medical condition represents a danger to their life or health, access to appropriate medical services. The sanctions also interfere with their psychological integrity and basic human dignity by denying them a clean, safe environment staffed with medically trained personnel in which they can self-administer treatment for their illness of addiction.38 Therefore, IDUs are being deprived of their right to security of the person by not having available medical services, in the form of SIFs, that are reasonably required for their medical condition. However, the criminal sanctions standing in the way of SIFs can easily be avoided if the Minister of Health simply exempts them from application of the law as being “necessary for a medical purpose or…in the public interest” under section 56 of the CDSA. If the government chooses not to establish SIFs then its action, or lack thereof, can be said to deprive IDUs of their right to security of the person.
If a court finds that the section 7 right to security of the person is violated it is unlikely the government’s position can by saved by section 1 of the Charter. It is rare that a violation of the principles of fundamental justice will be upheld as a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”. The government could argue that its decision not to set-up SIFs was prescribed by law, that the objective of the policy was pressing and substantial (for example, budgetary concerns), that the decision was rationally connected to the objectives and that it constituted a minimal impairment of section 7. However, despite, these arguments, it is likely a court would find that the deleterious effects of the decision, namely denying necessary medical treatment to control epidemics of disease and overdoses, far out-weigh any salutary effects such as potential budgetary savings. While a section 7 challenge is certainly possible, an even stronger challenge with more likelihood of success is a section 15 argument that IDUs are denied their equality rights.
B) SECTION 15
Section 15(1) of the Charter provides that
Every individual is equal before and under the law the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Government failure to make reasonable accommodation for disabled persons amounts to discrimination against them. Sopinka J. for the Supreme Court of Canada, in Eaton v. County Board of Education, stated
…discrimination does not lie on the attribution of untrue characteristics to the disabled individual. … Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation which results in discrimination against them.39
I have already established above that drug addiction amounts to a disability in Canadian law, so failure to accommodate IDUs special health care needs by providing SIFs is arguably discrimination.
In Law v. Canada (Minister of Employment and Immigration), Iacobucci J. articulated what was, in his view, the proper approach to analyzing a claim of discrimination under section 15:
First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s.15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated or analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s.15(1) of the Charter in remedying such ills as prejudice, stereotyping and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s.15(1).
The Supreme Court of Canada applied that approach in a subsequent case involving a claim of discrimination based on temporary disability.40 In Granovsky v. Canada (Minister of Employment and Immigration, Binnie J. stated:
The true focus of the s.15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances. It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” (Andrews v.Law Society of B.C. , [1989] 1 S.C.R. 143, at p.171) or “ameliorative purpose” of s.15(1) (Eaton v. County Board of Education, [1997] 1 S.C.R. 241, at para 66; Law v. Canada, [1999] 1 S.C.R. 497, at para 72; Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624, at para 65) that creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition.41
Binnie J., at paragraph 80, reiterates the emphasis on the state’s response to the disability:
The “purposive” interpretation of s.15 puts the focus squarely on the third aspect of disabilities, namely on the state’s response to an individual’s physical or mental impairment. If the state’s response were, intentionally or through effects produced by oversight, to stigmatize the underlying physical or mental impairment, or to attribute functional limitations to the appellant that his underlying physical or mental impairment did not warrant, or to fail to recognize the added burdens which persons with temporary disabilities may encounter in achieving self-fulfillment, or otherwise to misuse the impairment or its consequences in a discriminatory fashion that engages the purpose of s.15, an infringement of equality rights would be established. (emphasis added)
In the case of SIFs the government, by “oversight”, has failed to adequately respond to the health crisis affecting IDUs. This lack of response further stigmatizes IDUs, who are already one of the most marginalized groups in society, and who are, in essence, criminalized as a result of their disease. This failure to respond to the crisis by establishing SIFs is also a failure “to recognize the added burdens” IDUs face in accessing the health care system. The failure to accommodate the health care needs of IDUs perpetuates the view that they are somehow less worthy of health care services than other Canadians. SIFs are one of the only approaches to the epidemics facing IDUs that have shown to effectively provide them access to the health care system. They are an alternative arrangement that would effectively accommodate the health care needs of IDUs as disabled persons.
Case law suggests that where discrimination based on an enumerated ground in s.15(1) is made out, government can be required to take positive action to remedy the problem. In Eaton, Sopinka J. stated that
…the purpose of s.15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons.42
In Eldridge v. British Columbia43 the Supreme Court of Canada held that the failure of provincial health authorities to provide funding for sign language interpreters for the deaf violated s.15(1). In that case the appellants sought and won equal access to health care services that are available to everyone. The government was required to provide interpreters for that purpose. A case involving IDUs would also claim the right to equal and effective access to health care services, but that purpose would be achieved through SIFs as opposed to interpreters.
Another helpful case is Auton (Guardian ad litem of) v. British Columbia (A.G.). Alan J. applied Eldridge and found that
[t]he petitioners are the victims of the government’s failure to accommodate them by failing to provide treatment to ameliorate their mental disability. That failure constitutes direct discrimination. Further, the petitioner’s disadvantaged position stems from the government’s failure to provide effective health treatment to them, not from the fact that their autistic condition is characterized, in part, by an inability to communicate effectively or at all.44
The petitioner’s in that case forced the government to provide funding for effective early treatment of autistic children. This decision goes further than Eldridge in the sense that the government was forced to fund an entirely different system of treatment as opposed to merely providing access to an existing system.
Accommodating IDUs by establishing SIFs would go a long way to ameliorating the dreadful conditions they face. SIFs would drastically reduce the prevalence and transmission rates of communicable diseases among IDUs. They would also greatly reduce the unconscionably high fatal overdose rates. SIFs would not only save lives and improve the physical health of IDUs, but they would also contribute to their mental health and social well-being by connecting them to an array of social services.
As for a section 1 analysis if it is found that a failure to accommodate IDUs with SIFs is an infringement of their section 15 right, it appears from Eldridge that such an analysis may not be necessary. In that case La Forest J. did not go through the steps of the Oakes45 test. Instead, he found that the decision not to fund medical interpretation services for the deaf did not constitute a minimum impairment of their section 15(1) right. Having decided that, it wasn’t necessary to go through the elements of the Oakes test. At paragraph 94 he stated:
…I am of the view that the failure to fund sign language interpretation is not a "minimal impairment" of the s. 15(1) rights of deaf persons to equal benefit of the law without discrimination on the basis of their physical disability. The evidence clearly demonstrates that, as a class, deaf persons receive medical services that are inferior to those received by the hearing population. Given the central place of good health in the quality of life of all persons in our society, the provision of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a "reasonable accommodation" of the appellants' disability. In the language of this Courts' human rights jurisprudence, it has not accommodated the appellants' needs to the point of "undue hardship”….
If a court finds that by not establishing SIFs the government is failing to reasonably accommodate disabled persons under s.15(1) then such discrimination could not meet the minimal impairment test and thus could not be saved by section 1.
CONCLUSION
There is no doubt that a health crisis of epidemic proportions has existed for several years among injection drug users in the Vancouver region. The provincial government has not taken effective measures to control the spread of disease or reduce the death rate associated with injection drug use. Evidence demonstrates that SIFs are effective at doing both. The government is discriminating against IDUs by not providing them with effective access to essential health care in the form of SIFs.
The litigative strategy most likely to succeed in compelling the government to establish SIFs would proceed on two fronts: under human rights legislation and by constitutional challenge under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Under human rights legislation the basic argument is that the government has a duty to accommodate IDUs as disabled persons by establishing SIFs and thereby removing the discriminatory effect of lack of access to necessary medical services. A section 7 challenge will argue that IDUs are deprived of their right to security of the person by not having access to necessary medical services in the form of SIFs. The section 15 argument is essentially the same as the human rights argument. The government failure to make reasonable accommodations for IDUs, as disabled persons, amounts to discrimination and is a violation of their Charter rights. The evidence and arguments set forth in this paper demonstrate that there is a strong case for compelling the government to establish and fund SIFs.
ENDNOTES:
1 Canadian National Task Force on HIV, AIDS and Injection Drug Use, “HIV/AIDS and Injection Drug Use: A National Action Plan (1997)”, at 3-4, online: www.cfdp.ca/hivaids.html.
2 Penny Parry, “Something to Eat, A Place to Sleep and Someone Who Gives a Damn”, HIV/AIDS and Injection Drug Use in the DTES, Final project report to the DTES Community, Minister of Health and V/RHB, 1997.
3 Supra note 1, at 5; Fischer, B., Rehn, J., Blitz-Miller, T., (2000), “Injection Drug Use and Preventive Measures: A Comparison of Canadian and Western European Jurisdictions Over Time”, Canadian Medical Association Journal, 162(12), 1709-1713.
4 Canada Communicable Disease Report, “Hepatitis C – Prevention and Control: A Public Health Consensus”, Vol. 2552 (Supplement, June 1999; online: www.hc-sc.gc.ca/hpb/lcdc/publicat/ccdr/99vol25/25s2/index.html.
5 Thomas Kerr, Safe Injection Facilities: Proposal for a Vancouver Pilot Project (Vancouver: Harm Reduction Action Society, 2000) at 3 [citing the Vancouver Injection Drug Users Study (VIDUS), 1998 report]
6 Selected Vital Statistics and Health Status Indicators, 1996-2000: Drug induced deaths by age and gender. Victoria: British Columbia Vital Statistics Agency.
7 Supra note 5, at 23.
8 Ministry for Children and Families. (1998) Report on the Status of the Implementation of the Recommendations of: The Review of Alcohol and Drug Services in Vancouver.
9 Martin Schechter, et al, “Do Needle Exchange Programmes Increase the Spread of HIV Among Injection Drug Users?: An investigation of the Vancouver Outbreak”. AIDS, 1999, 13:F45-F51, at F50.
10 Ministry for Children and Families. Addiction Services: Our Mission and Mandate. (Victoria: Ministry of Children and Families, September 2000) at 1.
11 www.healthservices.gov.bc.ca/addictions/programsandservices.html. Last revised September 20, 2001.
12 Supra note 8.
13 Supra note 3, Fischer et al.
14 Kate Nolan et al., “Drug Consumption Facilities in Europe and the Establishment of Supervised Injecting Centres in Australia”, (2000) 19 Drug and Alcohol Review, 337 at 338-340.
15 For a description of SIF models see Kerr, supra note 5, at 29-30 and Appendix 1.
16 Kerr, supra note 5, at 32-35; Lindesmith Centre, Research Summary: Safe Injection Rooms, (1999) online: www.lindesmith.org/cites_sources/brief17.html ; Lindemsith Centre, Research Brief: Safer Injection Rooms, (1999) online: www.lindesmith.org/cites_sources/cites.html.
17 Supra note 14, at 340-341.
18 R. v. Anderson (1990), 53 CCC (3d) 481 (SCC); R. v. Waite (1989), 69 CR (3d) 323 (SCC); R. v. Tutton (1989), 69 CR (3d) 289 (SCC); R. v. Barron (1985), 23 CCC (3d) 544 (Ont. CA); R. v. Nelson (1990), 54 CCC (3d) 285 (Ont. CA); R. v. Gingrich (1991), 65 CCC (3d) 188 (Ont. CA); R. v. Ubhi (1994), 27 CR (4th) 332 (BCCA).
19 Ralph Jurgens & Richard Elliot, eds., Injection Drug Use and HIV/AIDS: Legal and Ethical Issues (Montreal: Canadian HIV/AIDS Legal Network, 1999).
20 The B.C. Compassion Club Society and its 1700 members are also technically violating the law, but the Vancouver Police Department and the Crown have exercised their discretion by not arresting members or laying charges.
21 Human Rights Code, R.S.B.C. 1996, C.210 proclaimed in force 1997.
22 Canadian Human Rights Act, R.S.C. 1985, C. H-6.
23 Entrop v. Imperial Oil Ltd., [2000] O.J. 2689 (Ont. CA), 50 O.R. (3d) 18, at para 89; Toronto Dominion Bank v. Human Rights Commission (1998), 163 D.D.R. (4th) 193 (FCA) at paras 1,15,16 of majority decision.
24 R. v. Nguyen (1995), 56 B.C.A.C. 290, at para 13, citing Oliver J. in R. v. Ping Li (unreported, November 19, 1993) Vancouver Registry No. CC930521.
25 Medicare Protection Act, R.S.B.C. 1996 c.286.
26 Canada Health Act, R.S.C. 1985, c. C-6.
27 Health Act, R.S.B.C. 1996 C.179.
28 British Columbia (Public Service Employees Relations Comm.)v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257.
29 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 36 C.H.R.R. D/129.
30 Ibid. at D/136, para 20.
31 Chipperfield v. British Columbia (Ministry of Social Services) (No.3) (1998), 33 C.H.R.R. D/340 (B.C.H.R.T.).
32 The Lindesmith Centre-Drug Policy Foundation, online: www.soros.org/lindesmith/news/DailyNews/06_29_01RAND2.html, cited December 10, 2001.
33 New Brunswick (Minister of Health & Community Services) v. G.J., [1999] 3 S.C.R. 46.
34 Ibid. at para 65.
35 R. v. Morgentaler,[1988] 1 S.C.R. 30, at para 90.
36 Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519, at 587-88.
37 R. v. Parker, [2000] O.J. No. 2787 (Ont. CA), at para 97.
38 It could be argued that feeding an addiction is not the same as treating it. Nevertheless, it is a form of treatment since addicts become violently ill if they do not receive the drug, and the only way to receive the drug is to administer it themselves. Obviously, one goal of a SIF is to ultimately wean an addict from his dependency, but whether or not that goal is achieved the SIF still provides a medically necessary service.
39 Eaton v. County Board of Education, [1997] 1 S.C.R. 241, at para 67.
40 Whether drug addiction is characterized as a temporary or immutable disability the same analysis would apply.
41 Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, at para 26.
42 Supra note 51, at para 66.
43 Eldridge v. British Columbia, [1997] 3 S.C.R. 624.
44 Auton (Guardian ad litem of) v. British Columbia (A.G.) (2000), 78 B.C.L.R. (3d) 55 (Auton #2).
45 R. v. Oakes, [1986] 1 S.C.R. 103.
BIBLIOGRAPHY
LEGISLATION
Canada Health Act, R.S.C. 1985, c. C-6.
Canadian Charter of Rights and Freedoms, Constitution Act, 1982.
Canadian Human Rights Act, R.S.C. 1985, C. H-6.
Controlled Drugs and Substances Act, R.S.C. 1996, c.19.
Criminal Code, R.S.C. 1985, c.46.
Health Act, R.S.B.C. 1996, c.179.
Human Rights Code, R.S.B.C. 1996, C.210.
Medicare Protection Act, R.S.B.C. 1996, c.286.
JURISPRUDENCE
Auton (Guardian ad litem of) v. British Columbia (A.G.) (2000), 78 B.C.L.R. (3d) 55 (Auton #2).
British Columbia (Public Service Employees Relations Comm.)v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 36 C.H.R.R. D/129.
Chipperfield v. British Columbia (Ministry of Social Services) (No.3) (1998), 33 C.H.R.R. D/340 (B.C.H.R.T.).
Eaton v. County Board of Education, [1997] 1 S.C.R. 241.
Eldridge v. British Columbia, [1997] 3 S.C.R. 624.
Entrop v. Imperial Oil Ltd., [2000] O.J. 2689 (Ont. CA), 50 O.R. (3d) 18.
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.
New Brunswick (Minister of Health & Community Services) v. G.J., [1999] 3 S.C.R. 46.
Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519.
R. v. Anderson (1990), 53 CCC (3d) 481 (SCC).
R. v. Barron (1985), 23 CCC (3d) 544 (Ont. CA).
R. v. Gingrich (1991), 65 CCC (3d) 188 (Ont. CA).
R. v. Morgentaler,[1988] 1 S.C.R. 30.
R. v. Nelson (1990), 54 CCC (3d) 285 (Ont. CA).
R. v. Oakes, [1986] 1 S.C.R. 103.
R. v. Parker, [2000] O.J. No. 2787 (Ont. CA).
R. v. Tutton (1989), 69 CR (3d) 289 (SCC).
R. v. Ubhi (1994), 27 CR (4th) 332 (BCCA).
R. v. Waite (1989), 69 CR (3d) 323 (SCC).
R. v. Nguyen (1995), 56 B.C.A.C. 290, at para 13, citing Oliver J. in R. v. Ping Li (unreported, November 19, 1993) Vancouver Registry No. CC930521.
Toronto Dominion Bank v. Human Rights Commission (1998), 163 D.D.R. (4th) 193 (FCA).
SECONDARY MATERIAL: ARTICLES, MONOGRAPHS, REPORTS
Canada Communicable Disease Report, “Hepatitis C – Prevention and Control: A Public Health Consensus”, Vol. 2552 (Supplement, June 1999; online: www.hc-sc.gc.ca/hpb/lcdc/publicat/ccdr/99vol25/25s2/index.html.
Canadian National Task Force on HIV, AIDS and Injection Drug Use, “HIV/AIDS and Injection Drug Use: A National Action Plan (1997)”, at 3-4, online: www.cfdp.ca/hivaids.html.
Fischer, B., Rehn, J., Blitz-Miller, T., (2000), “Injection Drug Use and Preventive Measures: A Comparison of Canadian and Western European Jurisdictions Over Time”, Canadian Medical Association Journal, 162(12), 1709-1713.
Jurgens, R. & Elliot, R. eds., Injection Drug Use and HIV/AIDS: Legal and Ethical Issues (Montreal: Canadian HIV/AIDS Legal Network, 1999).
Kate Nolan et al., “Drug Consumption Facilities in Europe and the Establishment of Supervised Injecting Centres in Australia”, (2000) 19 Drug and Alcohol Review, 337.
Kerr, Thomas, Safe Injection Facilities: Proposal for a Vancouver Pilot Project (Vancouver: Harm Reduction Action Society, 2000)
Lindesmith Centre, Research Summary: Safe Injection Rooms, (1999) online: www.lindesmith.org/cites_sources/brief17.html
Lindemsith Centre, Research Brief: Safer Injection Rooms, (1999) online: www.lindesmith.org/cites_sources/cites.html.
Lindesmith Centre-Drug Policy Foundation, online: www.soros.org/lindesmith/news/DailyNews/06_29_01RAND2.html, cited December 10, 2001.
Martin Schechter, et al, “Do Needle Exchange Programmes Increase the Spread of HIV Among Injection Drug Users?: An investigation of the Vancouver Outbreak”. AIDS, 1999, 13:F45-F51.
Ministry for Children and Families. (1998) Report on the Status of the Implementation of the Recommendations of: The Review of Alcohol and Drug Services in Vancouver.
Ministry for Children and Families. Addiction Services: Our Mission and Mandate. (Victoria: Ministry of Children and Families, September 2000) at 1.
www.healthservices.gov.bc.ca/addictions/programsandservices.html. Last revised September 20, 2001.
Parry, Penny “Something to Eat, A Place to Sleep and Someone Who Gives a Damn”, HIV/AIDS and Injection Drug Use in the DTES, Final project report to the DTES Community, Minister of Health and V/RHB, 1997.
Selected Vital Statistics and Health Status Indicators, 1996-2000: Drug induced deaths by age and gender. Victoria: British Columbia Vital Statistics Agency.