Like many Canadians I was disappointed last Friday when the Supreme Court of Canada ruled against the federal government and its quest to close down the Insite Safe Injection Site, located in Vancouver’s notorious Downtown Eastside.
After having reviewed the unanimous decision in some detail, I concede I am less distressed by the result than I am in the processes that lead to that result. Although not entirely convinced, I do see merit in Insite’s goals of harm reduction, reduced transmission of deadly communicable diseases caused by dirty needles and overdose intervention. However, the federal government has deemed narcotics as controlled substances and their possession, minus a Minister of Health Permit, is strictly illegal. It was these exact conflicting priorities: enforcement of the criminal law vs. providing a safe site for addicts to inject, that was before the Supreme Court.
The Controlled Drugs and Substances Act in section 55 allows for regulations for medical, scientific and industrial use of controlled substances. This is Parliament’s deliberate attempt to balance the two competing interests of public safety and public health. Section 56 as written allows the minister of health unfettered discretion to issue exemptions in the public interest:
56. The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor of any class thereof from the application of all or any of the provisions of this Act or 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. (Emphasis added)
Two things should be clear from the plain wording of the statute: firstly, without a doubt, the ‘public interest’ is broad enough to include harm reduction at a safe injection site. However and equally clear, the word ‘may’ makes the granting of an exemption permissive not mandatory. If it were otherwise, Parliament would have used the word ‘shall’ and then set out a number of conditions which, if met, would have mandated the issuance of an exemption.
The Supreme Court, however, stated that although governments make policy, once those policies are translated into law, those laws are subject to Charter scrutiny. The court went on to conclude that the minister’s refusal to grant an exemption to Insite was “arbitrary and grossly disproportionate in its effects and hence not in accordance with the principles of fundamental justice.” The court ordered the minister of health to grant the exemption.
Admittedly, it is arguable that there are good policy reasons for granting the exemption:
• the site had the support of the local community;
• the risk of death and disease is reduced when addicts inject with clean needles and under the supervision of a health professional;
• Insite did not contribute to increased crime rates, increased incidents of public injection or relapse rates among injection drug users.
In fact the court concludes that, “the effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”
It is this last statement that troubles me; surely it ought to be Parliament that weighs the benefits of the harm reduction offered by safe injections sites versus the benefits of controlling those illegal substances in the first place. Both are valid policy objectives; but it is the role of government to rank and choose between competing policy priorities.
If, as the court suggests: “it is for the relevant governments, not the Court, to make criminal and health policy”, then certainly it is for legislatures, not the Court, to prioritize when those policies are in conflict.”
Brent Rathgeber, Q.C., MP Edmonton-St. Albert, is a member of the House of Commons Standing Committee on Justice and Human Rights.
