October 2, 2011

Landmark case: the InSite safe injection site

Administrative Law
Health Law

InSite, a pilot project that provides a safe injection site for intravenous drug addicts in Vancouver, has received the backing of the Supreme Court of Canada in its fight to remain open. In a decision released on Friday, the Court held that the services provided by the harm-reduction facility cannot be justifiably denied to those who depend on them, as this would undermine the claimants’ guaranteed right to “life, liberty, and security of the person”.

The litigation over InSite’s future began over three years ago. In order to provide its services, InSite requires an exemption from the provisions of the Controlled Drugs and Substances Act, which ordinarily prohibits activities related to drug use. Such an exemption may be granted at the discretion of the federal Minister of Health. While InSite received temporary extensions of its initial mandate in 2006 and 2007, by 2008 it became evident that its enabling exemption would not be renewed, In order to avoid being shut down, InSite took its case to court. While InSite’s exemption officially expired in 2008, its challenge was upheld by both the B.C. Supreme Court and the Court of Appeal, which has allowed InSite to remain open in the interim.

In its initial application for relief, InSite sought to challenge the applicability of the CDSA to provincial programs, the validity of the Minister’s decision not to renew the exemption, and the constitutionality of the CDSA itself. Although a majority of the Court of Appeal had previously found that InSite could be saved under the doctrine of interjurisdictional immunity, which would have protected InSite as a creation of the province’s purported “core” legislative power in respect of health issues, the Supreme Court rejected this argument. The Court found that recent jurisprudence has tended to allow for an overlap in legislative responsibility, and that ousting the criminal law from the domain of health could potentially create problematic “legal vaccums”. However, while the Court held the CDSA as a whole was still valid and applicable legislation, the Minister’s decision to deny an exemption to InSite violated the claimants’ section 7 Charter rights. In fact, the Court found the Minister’s decision was “arbitrary”, in that it bore no relation to the CDSA’s stated objectives, and the foreseeable harm to the claimants arising from that decision was “grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.” As such, the decision could not be justified under section 1 of the Charter. In the unique circumstances of the case, the Court issued an order of mandamus requiring the Minister to grant an exemption to InSite forthwith.

While the Court insisted that its ruling should not serve to fetter the Minister’s discretion over future decisions, the Court noted the exercise of such discretion must be consistent with the requirements of the Charter. In particular, the Court found the Minister is obliged to consider relevant factors for future decisions, including “evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.” With the findings of fact on the record firmly in InSite’s favour, this ruling suggests that InSite’s future is, if not wholly secure, then at least much brighter than it was three years ago.

For the full text of the Supreme Court’s decision, click here.