Law & Order Lied to You, but Real Life Criminal Law might still be Exciting - reflections on saf
As a newbie law student at Robson Hall, I am not embarrassed to say that I have no idea what I am talking about when it comes to criminal law. Well, that’s not entirely true. If I were quizzed on the adventures of Olivia Benson throughout her career working for New York City’s sexual victim’s unit, then I would pass that test nine times out of ten. However, this is real life (apparently), and there is a difference between the exciting world of criminal law that gets spotlighted on nighttime drama series’ and the reality of true crime within the Canadian legal system. This is not to say that the field of Canadian criminal law is not exciting; all I am saying is that I just don’t know yet. (But if I were to guess, if real criminal law were touted on Netflix, I probably would not ‘chill’ to it for days on end.) This is all to preface that I don’t consider myself an expert, but here are my unadulterated thoughts on the subject anyways.
I am going to scratch the surface of the world of safe injection facilities and how it operates within the Canadian criminal legal system. I find the whole concept entirely captivating, provocative, and mystifying. The notion of safe injection facilities strikes upon many nerves both socially and legally. On one hand, drugs are bad! Why would we want people to do drugs, never mind facilitate their us? How can we, as proper Canadians, advocate “don’t do drugs!” while also advertising “legally do drugs here!”? On the other hand, however, people are dying. People who use drugs, people who are addicted to drugs, are dying from overdoses, HIV/Aids, and violence at exceedingly high rates. Is it moral to let those individuals die when lifesaving intervention is readily at our disposal?
After years of research in favor of the safe facilitation of illegal drugs as a means of decreasing drug related deaths, a safe injection facility called Insite was established in Vancouver’s downtown eastside. It was the first government-sanctioned safe injection facility of the sort in North America. In 2003, they were granted an exemption from the Controlled Drugs and Substances Abuse Act (CDSA) on the basis that, in order to operate, the staff and clients of Insite ought to be exempt from ss. 4 and 5 of the Act which prohibit the possession and trafficking of illegal substances. The exemption can only be granted by the Federal Minister of Health.
In 2008, the Minister refused to renew Insite’s exemption. The facility took the issue to the BC Supreme Court, where the trial judge found that the CDSA infringed on the facility’s staff and clients s. 7 Charter rights (the right to life, liberty and security of person). The government appealed to the BC Court of Appeal (leading to the Supreme Court's ultimate decision in PHS Community Services below), where the judge dismissed the appeal on the basis of interjurisdictional immunity. What is particularly interesting (if you get your jollies from the riveting world of case law), when the case was appealed to the Supreme Court of Canada, it was thrown out, not on the grounds of the unconstitutionality of the CDSA or interjurisdictional immunity, but rather, because the Minister’s decision infringed on the claimant’s s. 7 Charter rights. It seems to me that the SCC judges believed that the claimants were right, but they knew that the CDSA was not unconstitutional under a federalism framework and that interjurisdictional immunity did not apply. They sought to find a third way to justify Insite’s operations within the Canadian legal system. It was a decision that did the least amount of harm on the basis of federalism, while also finding in favour of a vulnerable group.
The SCC’s decision persuades me to believe that the use of safe injection facilities is seen as a moral good by those who inhabit the highest level of the Canadian legal pyramid. Obviously, this is a speculation because it would be juvenile to assume that Supreme Court judges make decisions based on personal beliefs. However, the way the judges found in favour of the claimant seems to evoke a message that, yes, drugs are bad, yes, we ought to prevent the use of illegal substances, but prevention may not be the most effective means of reducing the harms (socially and individually) of drug abuse.
So, why aren’t safe injection facilities popping up all over the country? Extensive research combined with substantial judicial precedent would normally provoke these consequences. The slow-paced change may be due to negative social assumptions surrounding illicit drug abuse. However, Canadian attitudes towards the use of safe injection facilities are beginning to shift. In January of this year, a Mainstreet Research poll revealed that forty-six percent of Winnipeggers were in favour of opening a safe injection facility in the city. Thirty-three percent were against it, and twenty-one percent were unsure. Canadian beliefs about why people abuse drugs is beginning to shift, and Canadians may be beginning to view addiction as a disease rather than individual fault.
Although it is a slow process, we are starting to see how Canadian perspectives and Canadian laws on harm-reduction facilities are beginning to alter. In fact, Health Canada has approved the creation of ten safe injection sites across Canada this year alone. This may be due to a new bill that passed in May. Bill C-37 reduces the burden on applicants to prove substantial medical and scientific information in order to be approved for a CDSA exemption. Alongside Vancouver, Montreal and Toronto will soon see the development of safe drug injection facilities in neighbourhoods with the highest rates of illegal drug users. In fact, each city has been approved for three different facilities each. Insite is still in operation in Vancouver and it has since been joined by a second facility. Two more facilities have also been approved in the surrounding Surrey area.
What will be next for the criminal laws which encompass the use and control of illegal substances? Will the CDSA need to be amended in light of the numerous exemptions being granted by the Health Minister? If so, how would that come about and what would it mean for the future of Canadian criminal law? This whole law school thing may not have me at the edge of me seat after each episode, but it keeps me earnestly intrigued; and considering this is real life, I think that’s good enough.
“46% of Winnipeggers want safe injection site: poll” CBC News (18 January 2017), online: <http://www.cbc.ca/news/canada/manitoba/safe-injection-site-winnipeg-poll-1.3940637>.
Cameron, Peter. “Health Canada approves three safe injection site in Toronto”, CTV News ( 2 June 2017), online: <http://www.ctvnews.ca/health/health-canada-approves-three-safe-injection-sites-in-toronto-1.3441598>.
Kirkup, Kristy. “Bill to make it easier to create safe injection sites becomes law” The Star (18 May 2017), online: <https://www.thestar.com/news/canada/2017/05/18/bill-to-make-it-easier-to-create-safe-injection-sites-becomes-law.html>.
PHS Community Services v Canada (Attorney General), 2011 SCC 44,  3 SCR 134.