Safe Injection Sites - Vancouver

The Constitutional Obligation of the City of Vancouver to Support Safe Injection Facilities

From 1999 to 2002 I (Perry Bulwer) 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. The paper that follows this intro and news updates was a collaborative effort in response to government inaction in the face of a publicly declared health crisis. It was subsequently published on the website of Pivot Legal, and listed in the Legislative Library of British Columbia, however it is no longer available online. I have made it available here for researchers and activists in other jurisdictions. Pivot was at the time 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, the two related papers on Safe Injection Facilities on this website, as well as similar research were used by Pivot and other activists in the fight to force government action. In September 2003 North America's first legal supervised injection site, INSITE, began operating in Vancouver as a scientific pilot research project. The 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. On October 8, 2008 Pivot filed a complaint with the federal auditor general alleging that the RCMP secretly commissioned research in hopes of discrediting INSITE. Consequently, the RCMP announced an internal review of Pivot's allegations. This article, Vancouver's Radical Approach to Drugs, provides an updated overview of Vancouver's harm reduction approach to illicit drug use. And here is atranscript of a radio interview with Dr. Gabor Maté, a physician at INSITE, on the biological and socio-economic roots of addiction.

See related legal arguments in the following two articles on this blog:

SAFE INJECTION FACILITIES: COMPELLING GOVERNMENT TO ACT 

http://perry-bulwer.blogspot.ca/p/safe-injection-sites-bc.html

INTERNATIONAL LAW AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH CARE: Using Safe Injection Facilities to Control and Prevent Epidemics

http://perry-bulwer.blogspot.com/p/safe-injection-sites-international.html

FOR RELATED, ONGOING, UP-DATED MEDIA REPORTS ON THIS ISSUE SEE THE COMMENTS SECTION AFTER THE ARTICLE AT:  http://perry-bulwer.blogspot.ca/p/safe-injection-sites-bc.html

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DRAFT SUBMISSION TO VANCOUVER CITY COUNCIL

The Constitutional Obligation of the City of Vancouver to Support Safe Injection Facilities

DATE: May 2, 2002

AUTHORS: Perry Bulwer¹ Craig Jones² and John Richardson³

¹ LL.B., University of British Columbia (expected 2002)

² LL.B., University of British Columbia, 1998; LL.M., Harvard Law School (expected June 2002); of the Bar of British Columbia; Adjunct Professor of Law, U.B.C.

³ LL.B., University of Victoria, 1999, of the Bar of British Columbia

SUMMARY AND CONTENTS:

1. Drug addiction is a disability and drug addicts are protected from discrimination by Human Rights Codes and the Charter

2. Discrimination is the failure to provide reasonable accomodation for the disabilities of drug addicts

3. Providing reasonable accommodation for drug addicts means taking steps to provide alternative access to necessary medical services

4. Safe injection facilities are a necessary medical service for drug addicts

5. The failure to provide safe injection facilities for drug addicts is an unjustifiable violation of Human Rights Codes and the Charter

6. The City of Vancouver is bound by the Charter and must exercise its powers in conformity with the Charter

Conclusion: The Charter of Rights and Freedoms may require the City of Vancouver to support safe injection facilities within the scope of its power and jurisdiction

1. Drug addiction is a disability, and drug addicts are protected from discrimination by Human Rights Codes and the Charter

Both heroin and cocaine dependence are classified as psychiatric disorders under the authoritative diagnostic manual, DSM-IV, which sets out the characteristics of opioid and heroin addiction as follows:⁴

Opioid/heroin Abuse

A destructive pattern of opioid/heroin use, leading to significant social, occupational, or medical impairment. Must have three (or more) of the following, occurring when the opioid/heroin use was at its worst:

1. Opioid/heroin tolerance: Either need for markedly increased amounts of opioid/heroin to achieve intoxication, or markedly diminished effect with continued use of the same amount of opioid/heroin.

2. Opioid/heroin withdrawal symptoms: Either (a) or (b).

(a) Two (or more) of the following, developing within several hours to a few days of reduction in heavy or prolonged opioid/heroin use:

• sweating or rapid pulse

• increased hand tremor

• insomnia

• nausea or vomiting

• physical agitation

• anxiety

• transient visual, tactile, or auditory hallucinations or illusions

• grand mal seizures

(b) Opioid/heroin is taken to relieve or avoid withdrawal symptoms

3. Greater use of opioid/heroin than intended: opioid/heroin was often taken in larger amounts or over a longer period than was intended

4. Unsuccessful efforts to cut down or control opioid/heroin use: Persistent desire or unsuccessful efforts to cut down or control opioid/heroin use

5. Great deal of time spent in using opioid/heroin, or recovering from hangovers

6. Opioid/heroin caused reduction in social, occupational or recreational activities: Important social, occupational, or recreational activities given up or reduced because of opioid/heroin use.

7. Continued using opioid/heroin despite knowing it caused significant problems: Continued opioid/heroin use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been worsened by nicotine

Associated Features

Learning Problem, Psychosis, Euphoric Mood, Depressed Mood: Somatic or Sexual Dysfunction, Hyperactivity, Addiction, Sexually Deviant Behavior, Odd or Eccentric or Suspicious Personality, Dramatic or Erratic or Antisocial Personality

Human rights instruments in Canada protect disabled persons from discrimination based on disability. Canadian courts have found that drug addiction constitutes a mental disability, and drug addicts are protected from discriminatory practices by government and by private persons such as employers and landlords.

Canadian Human Rights Act

The Canadian Human Rights Act clearly defines substance addiction as a disability:

"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.⁵

In Toronto Dominion Bank v. Canadian Human Rights Commission the majority of the court held that the protected disability of "drug dependence" included addiction to illegal drugs. Robertson, J.A. stated:

In my view, it would be contrary to the Supreme Court's approach to the interpretation of human rights legislation to construe section 25 of the Act narrowly by reading in the word "legal" so as to modify the phrase "dependence on [legal] drugs": see Robichaud v. Canada, [1987] 2 S.C.R. 84 at 89, 40 D.L.R. (4th) 577. Surely, it is accepted that dependence on illegal substances is just as, if not more, common than dependence on legal drugs. The comments made before the Standing Committee by then Minister of Justice, Mark MacGuigan, were based on an analysis of the American approach which developed in the context of that country's "war on drugs" policy of the 1980's. Our legislation is not influenced by the same politics. In any event, to my mind it would be impractical to protect only those dependent on so-called "legal" drugs as some of those might be obtained or used in an "illegal" fashion.⁶

Provincial Human Rights Codes

The Ontario Human Rights Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour: ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status,family status or disability.⁷

The British Columbia Human Rights Code is similar to that of Ontario, prohibiting discrimination on the basis of:

...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.⁸

In Entrop v. Imperial Oil Ltd., the Ontario Court of Appeal accepted that drug and alcohol addiction, although not specifically enumerated in the Ontario Human Rights Code, constituted a disability and a prohibited ground of discrimination:

The Board found, on uncontradicted expert evidence: that drug abuse and alcohol abuse -- together substance abuse -- are each a handicap. Each is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning." Drug dependence and alcohol dependence, also separately found by the Board to be handicaps, are severe forms of substance abuse. Therefore; on the findings of the Board, which are not disputed on this appeal, substance abusers are handicapped and entitled to the protection of the Code.⁹

Outside of the provincial and national human rights codes, illegal drug addiction has been recognized as a disability in proceedings around criminal sentencing. In R. v. Nguyen, Ryan J.A. quoted with approval a description of illegal drug addicts as 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".¹⁰

The Charter of Rights and Freedoms

Section 15(1) of the Canadian Charter of Rights and Freedoms states:

Every individual is equal before and under 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.¹¹

Canadian courts have not yet been asked to rule on the issue of whether drug addiction constitutes a prohibited ground of discrimination under the Charter. However, the outcome is likely to be the same as that in Human Rights cases, given the similarities in language and the uniformity of principles of interpretation. In Andrews v. Law Society of British Columbia, the Supreme Court of Canada considered the application of equality principles developed in human rights cases to cases invoking the Charter. McIntyre J. said for the court:

In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under s. 15(1).¹²

2. Discrimination is the failure to provide reasonable accommodation for the disabilities of drug addicts

In Law v. Canada (Minister of Employment and Immigration), lacobucci 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).¹³

The Supreme Court of Canada applied that approach in a subsequent case involving a claim of discrimination based on temporary disability. In Granovsky v. Canada, Binnie J. expanded on what constitutes discrimination:

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.¹⁴

Binnie J. emphasized the state's obligation under section 15(1) to actively address disability:

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 remedialcomponent" (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. [emphasis added]¹⁵

The effect of the "ameliorate purpose" and "remedial component" of section 15(1) is that government must make reasonable accommodation for disabled persons, and the adverse effects suffered by disabled persons as a result of a failure to do so amounts to discrimination. Sopinka J. for the Supreme Court of Canada, in Eaton v. County Board of Education, stated:

The principles that not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability. Avoidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons. InAndrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the "accommodation of differences . . . is the true essence of equality''. This emphasizes 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.

Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie on the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. 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. The discrimination inquiry which uses 'the attribution of stereotypical characteristics' reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.¹⁶

An example of accommodating disabled persons in relation to the provision of a service is in Chipperfield v. British Columbia (Ministry of Social Services).¹⁷ 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.

3. Providing reasonable accommodation for drug addicts means taking steps to provide alternative access to necessary medical services

Accommodation means changing a rule or a practice, making adjustments or making alternative arrangements to remove discriminatory effects on an individual or a group. Safe injection facilities ("SIFs") would be an alternative arrangement allowing drug users to access essential health services that, due to their disability, they have been unable to access through traditional channels.
Section 3 of the Canada Health Act ¹⁸ describes the primary objective of Canadian health care policy as protecting, promoting and restoring the physical and mental well-being of residents of Canada and facilitating reasonable access to health services without financial or other barriers. Pursuant to section 5 of that Act, the federal government makes cash contributions towards the funding of B.C.'s health care system. Those cash contributions are contingent on provincial compliance with the criteria described in sections 8 to 12 of the Act respecting (a) public administration; (b) comprehensiveness; (c) universality; (d) portability; and (e) accessibility.

The preamble to the Medicare Protection Act states that the people and government of British Columbia believe that medicare is one of the defining features of Canadian nationhood, and "wish to confirm and entrench universality, comprehensiveness, accessibility, portability and public administration as the guiding principles of the health care system ... and are committed to the preservation of these principles in perpetuity."¹⁹ The preamble also emphasizes the fundamental value that an individual's access to necessary medical care must be based solely on need and not the individual's ability to pay. Section 2 of the Act states:

The purpose of this Act is to preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual's ability to pay.

The requirement that government provide access to necessary medical services in a manner that accommodates disability creates positive obligations. In Eldridge v. British Columbia (Attorney General),²⁰the Court ordered the British Columbia government to fund deaf interpretation services, where appropriate, to ensure that the deaf claimants had equal access to health care. Because of their physical disability, deaf persons were unable to communicate with their doctors and thus unable to receive universally available health benefits. The Court held that the government had violated s. 15(1) by failing to recognize the added burdens faced by deaf persons in accessing the core medical services provided to every other user. That failure to accommodate deaf persons constituted adverse effects discrimination. The government was required to provide interpreters for that purpose.

In Auton (Guardian ad litem of) v. British Columbia, the Court applied Eldridge in the case of funding for alternative medical treatment for autistic children. Alan J. 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.²¹

In Auton the court again found that government had a positive obligation under the Charter to provide a necessary medical service. However, this decision went further than Eldridge, and is particularly relevant in the case of safe injection facilities for two reasons:

a) The court found that government was required to fund an entirely different system of treatment as opposed to merely providing access to an existing system.

b) The court rejected arguments that the schedule created by British Columbia's Medical Services Committee was an all-inclusive list of ''necessary medical services. It found that the term "medically necessary" was broader in scope, encompassing "whatever cures or ameliorates illness," and determined, based on the expert evidence, that government was in violation of the Charter by failing to provide Lovaas Autism Treatment for autistic children. In particular, the court found that it was not restricted in making this finding by an absence of broadly accepted or established scientific information.

4. Safe injection facilities are a necessary medical service for drug addicts

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. 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.²²

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.²³ 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.²⁴

Safe injection facilities are a medically necessary accommodation for providing drug users access to medical services because:

a) Unsupervised intravenous drug use is dangerous to life and health, through risk of overdose, transmission of disease; and direct physical effects such as vein collapse and abscesses. Providing injection supervision has been shown to ameliorate the deleterious health effects of drug addiction.

b) Supervised injection facilities provide a gateway for drug addicts to access non-emergency medical treatment, such as addiction counseling, rehabilitation, and treatment. It has been shown that, due to the nature of their addiction, drug addicts as a group do not obtain significant benefit through traditional delivery of such services. Government is obligated to accommodate this characteristic of addiction disability by taking special steps to provide access to services through alternative avenues such as safe injection sites.

5. The failure to provide safe injection facilities for drug addicts is an unjustifiable violation of Human Rights Codes and the Charter

Neither the Human Rights Codes nor the Charter afford persons failing within a protected category an unrestricted right to access any government service which might alleviate the effects of their disability. Once a claimant establishes a prima facie case of discrimination, the burden shifts to the government is to justify the discrimination, and policy considerations such as budgets may be introduced along with arguments pointing to the intent of the legislation and the purpose of the discriminatory provisions.

Justification under Human Rights Codes

In a recent decision considering justification in the context of the British Columbia Human Rights Code,British Columbia (Public Service Employees Relations Comm.) v. B.C.G.E.U.²⁵. also known as Meiorin, the Supreme Court of Canada clarified the law regarding the duty to accommodate. That case, which concerned the occupational requirements for female firefighters, eliminated the distinction between direct discrimination and adverse effect discrimination. Moreover, it required an employer, when arguing that the discrimination created by a particular occupational requirement was justified, to prove that:

(1) the standard had been adopted for a purpose rationally connected to the performance of the job;

(2) the particular standard had been adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose, have been fulfilled; and

(3) it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),²⁶ also known as Grismer, the Supreme Court of Canada reaffirmed the test in Meiorin and applied it, and in particular part three of the test, to the provision of government services. In Grismer, the issue was vision testing for a driver's licence, and the refusal of the Superintendent of Motor Vehicles to take special steps to evaluate the performance of a visually impaired person who desired to be tested wearing specially-designed prism glasses. The Court held that the Superintendent of Motor Vehicles discriminated by refusing licenses to people with the particular optical disorder suffered by the claimant, and that it had failed to demonstrate that it would suffer undue hardship if required to test persons individually.

Once it is established that a lack of safe injection facilities constitutes a violation of the provincial Human Rights Codes or the Canada Human Rights Act, the government could argue that to create safe injection sites would result an undue hardship due to budgetary constraints or the increased risk of safety to neighbouring residents from potential increases to drug user populations in the area.

An argument of undue hardship is unlikely to succeed against safe injection facilities. In evaluating safety risks, the court will weigh outcomes, and arguably the demonstrated harm-reducing effects of safe injection facilities will outweigh speculation of safety risks to neighbourhoods. There is no evidence that safe injection facilities create community safety risks; in fact, overseas experience suggests that the opposite is the case.²⁷ Nor are budgetary factors likely to result in a finding of undue hardship; the costs of maintenance for safe injection facilities are low compared with other addiction treatment services. Moreover, general economic analysis favours harm reduction measures. 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".²⁸

Justification under the Charter

In , the claimants appealed to section 15(1) of the Charter in seeking medically recommended treatments that would ameliorate their condition of infertility and promote, if not attain, equality with the fertile. Chipman J.A., for the majority, stated at p. 654-5:

The government has failed to ameliorate the position of the infertile compared with fertile people. They are unequally treated because they are denied a medically recommended treatment appropriate for them.²⁹

However, although the majority of the Court concluded that the government's failure to fund in vitro fertilization violated the petitioners' s.15 rights, it found that the policy was justified under s. 1. Section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.³⁰

The question of what constitutes a "reasonable limit" that is "demonstrably justified in a free and democratic society" has formed perhaps the largest component of judicial consideration of the Charter to date.

Contextual Analysis

In Edmonton Journal v. Alta.,³¹ Wilson J spoke of the importance of a placing a particular right or freedom within its factual and social context when undertaking a section 1 analysis, and placing a value on the right. In R. v. Keegstra,³² Dickson C.J. referred to that judgment:

It is important not to lose sight of factual circumstances in undertaking a s.1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract. As Wilson J. said in Edmonton Journal, supra, referring to what she termed the "contextual approach" to Charter interpretation (at pp. 1355-56):

... a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.

Though Wilson J. was speaking with reference to the task of balancing enumerated rights and freedoms, I see no reason why her view should not apply to all values associated with a free and democratic society. Clearly, the proper judicial perspective under s. 1 must be derived from an awareness of the synergetic relation between two elements: the values underlying the Charter and the circumstances of the particular case.

A contextual analysis of the arguments for and against safe injection sites in Vancouver will require consideration of the health situation amongst drug users in the city, particularly in the Downtown Eastside. 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".³³ 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 intravenous drug users (''IDUs"), centred primarily, but not exclusively, in the Downtown Eastside.³⁴ 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.³⁵ It is estimated that 85 percent of IDUs in Vancouver are infected with Hepatitis C.³⁶ 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 1998.³⁷ Included with 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.³⁸

The fact that the context of drug addiction in the Vancouver area reduces to litany of critical health concerns is particularly important in a section 1 Charter analysis. In considering context, the Court must be informed by the values that underlie the Charter. One of the foremost of these is the right to life and health, and is set out in section 7:

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.³⁹

In the Charter hierarchy of values that can be used to frame the context of drug addiction, illegal drug use, and safe injection sites, security of the person outweighs the two major competing values that are held up in arguments against such facilities: economic values and the values underlying criminal prohibitions.

Economic rights, such as the right to conduct a prosperous business in the neighbourhood of the Downtown Eastside, are not protected by the Charter, and economic values are not included among the Charter values. Economic values do receive consideration in a later stage of the section 1 analysis, but they are not weighed during the "contextual analysis."

In R. v. Morgentaler, Beetz J. clearly outlined the supremacy of security of the person over criminal law in cases involving access to health care:

If a rule of criminal law precludes a person from obtaining appropriate medical treatment when his or her life or health is in danger, then the state has intervened and this intervention constitutes a violation of that man's or that woman's security of the person. "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 if an act of Parliament forces a person whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand: inadequate treatment or no treatment at all, the right to security of the person has been violated. ⁴⁰

In Rodriguez v. British Columbia (.A.G.),⁴¹ 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.⁴²

Section 7 is strong enough to permit medical treatment with illegal drugs. In R. v. Parker,⁴³ a case involving the use of a prohibited substance, marijuana, for medical purposes, Rosenburg J.A., relied 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.

It is not a difficult to conclude from R. v. Parker and its preceding case law that denying a confirmed drug addict with access to a medical facility where drugs - even illegal drugs - could be safely injected constitutes a violation of the security of their person under section 7 the Charter. In this manner, section 7 could stand as an independent cause of action against the failure of government actors to establish safe injection facilities.

The Oakes Test

Once the factual context is established through reference to the Charter values, the government must establish that the decision or legislation that resulted from the discrimination constitutes a limit on equality rights that is reasonable and demonstrably justified in a free and democratic society. In R. v. Oakes ⁴⁴ Dickson C.J. set out what has become the standard test. It has four parts:

1. The law or decision must pursue an objective that is sufficiently important to justify limiting the Charter right;

2. The law or decision must be rationally connected to the objective;

3. The law or decision must impair the right no more than is necessary to accomplish the objective; and

4. The law or decision must not have a disproportionately severe effect on the persons to whom it applies.

A government decision which has been shown to violate the Charter must satisfy each arm of the Oakes test. Without going into detail here, substantial arguments can be marshaled against any attempt to justify the failure of government to establish safe injection facilities under this test. In the case of Eldridge v. British Columbia,⁴⁵ the court engaged in only the most superficial of section 1 analyses once it had been determined that the failure to provide translation services for deaf persons compromised their access to health care. In that case La Forest J. did not go through the steps of the Oakes 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 was not 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"....

The force behind this argument comes from the importance of the right to security of the person. It is perhaps the most deeply rooted Charter value, and 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 safe injection facilities 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, the facts of the situation framed in the context of Charter values make it likely that a court would find that the deleterious effects of the decision, namely that the denial of necessary medical treatment to control epidemics of disease and overdoses;
outweigh any salutary effects such as budgetary savings.

In summary, it is uncertain that government would be able to justify the failure to establish safe injection sites under either Human Rights Codes or the Charter; however, there are persuasive arguments available that support a constitutional mandate for such facilities.

6. The City of Vancouver is bound by the Charter, and must exercise its powers in conformity with the Charter

The City of Vancouver is bound by the Charter, and required to observe its obligations and restrictions within the bounds of its power and jurisdiction: in the same manner as the provincial and federal governments. In Godbout v. Longueuil (City), LaForest J. stated:

While this Court has never before expressly endorsed that proposition: we have done so inferentially, inasmuch as we have already applied the Charter to municipal by-laws without specifically engaging in an analysis of the application issue; see Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. Moreover., the view that municipalities are subject to the Charter is not only sound, but also wholly consistent with the case law I have been discussing. Indeed, municipalities -- though institutionally distinct from the provincial governments that create them -- cannot but be described as "governmental entities". I base this finding on a number of considerations.

First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent. To my mind, this itself is a highly significant (although perhaps not a decisive) indicium of "government" in the requisite sense. Secondly, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as "government", is indistinguishable from the taxing powers of Parliament or the provinces. Thirdly, and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction. Thus, while I expressed no specific opinion inMcKinney as to whether municipalities are, in fact, subject to the Charter, I nevertheless had this to say, at p. 270 of that case:

... I agree with the Court of Appeal that, if the Charter covers municipalities, it is because municipalities perform a quintessentially governmental function. They enact coercive laws binding on the public generally, for which offenders may be punished.... [Emphasis added.]

Finally, and most significantly, municipalities derive their existence and law-making authority from the provinces; that is, they exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves. Since the Canadian Charter clearly applies to the provincial legislatures and governments, it must, in my view, also apply to entities upon which they confer governmental powers within their authority. Otherwise, provinces could (in the manner outlined earlier) simply avoid the application of the Charter by devolving powers on municipal bodies.⁴⁶

The City of Vancouver is not the governmental body with primary jurisdiction over the establishment and maintenance of safe injection facilities, However, it is a government body with the power to impede or facilitate SIFs, and as a government bound by the Charter it is required to facilitate and support them to the limits of its jurisdiction.

Conclusion: The Charter of Rights and Freedoms may require City of Vancouver to support safe injection facilities within the scope of its power and jurisdiction.

When voting on the question of safe injection facilities, the City Council is acting pursuant to its statutory authority under the Vancouver Charter and other Acts. There is no doubt that such decisions must be consistent with the Charter of Rights and Freedoms, and indeed with 'quasi-constitutional' sources of authority such as the B.C. Human Rights Code.

This submission has briefly made the case that governments may have a constitutional imperative to act towards making safe injection facilities a reality.⁴⁷ If this is the case, then decisions of the City must be consistent with that obligation. It is our respectful submission that the current resolution before Council is consistent with the constitution, and that obstruction or interference with the provision of appropriate medical services to this vulnerable segment of the population would not be. We therefore urge support for a pilot safe injection project in Vancouver without further delay.

ENDNOTES:

4 Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM-IV), published by the American Psychiatric Association. Washington D .C., 1994ss. 304 (opiod dependency) and 304.2 (cocaine dependency)

5 Canadian Human Rights Act, R.S.C. 1985. C. H-6, s.25

6 Toronto Dominion Bank v. Canadian Human Rights Commission (1998), 163 D.L.R. (4th) 193 (FCA) at paras. 15,16

7 Ontario Human Rights Code, R S.O. 1990, c. H.19, s.1

8 British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, ss. 7-11,13,14

9 Entrop v. Imperial Oil, Ltd., [2000] O.J. 2689 (Ont. CA), 50 O.R. (3d) 18, at para 89

10 R. v. Nguyen (1995), 56 B.C.C.A. 290, at para 13, citing Oliver J. in R. v. Ping Li (unreported, November 19, 1993) Vancouver Registry No. CC930521

11 The Constitution Act, 1982, The Canadian Charter of Rights & Freedoms

12 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143

13 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 39

14 Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, at para. 80

15 Ibid., para. 26

16 Eaton v. County Board of Education, [1997] 1 S.C.R. 241, at paras. 66, 67, emphasis added

17 Chipperfield v. British Columbia (Ministry of Social Services) (No.3) (1998), 33 C.H.R.R D/340 (B.C.H.RT.)

18 Canada Health Act, R.S.C. 1985, Chap. C-6

19 Medicare Protection Act, R.S.B.C. 1996, c. 286

20 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

21 Auton (Guardian ad litem of) v. British Columbia (A.G.) (2000), 78 B.C.L.R. (3d) 55 at para. 132

22 Thomas Kerr, Safe Injection Facilities: Proposal for a Vancouver Pilot Project (Vancouver Harm Reduction
Action Society, 2000)

23 Thomas Kerr, Safe Injection Facilities: Proposal for a Vancouver Pilot Project (Vancouver Harm Reduction Action Society, 2000); Drug Policy Alliance, Research Summary: Safe Injection Rooms, (1999) online: http://www.soros.org; Drug Policy Alliance, Research Brief: Safer Injection Rooms, (1999) online: http://www.soros.org (last visited: April 28, 2002)

24 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

25 British Columbia (Public Service Employees Relations Comm.) v. B.C.G.E.U., [1999] 3 S.C.R. 3

26 British Columbia (Superintendent of Motor- vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868

27 R. Broadhead et al "Safer Injection Rooms in Public Policy and Health Initiatives" Journal of Drug Issues(forthcoming)

28 Drug Policy Alliance, online: http//www.soros.org (last visited April 27, 2002)

29 Cameron v. Attorney General of Nova Scotia (1999), 177 D.L.R. (4th) 611 (N.S.C.A.)

30 The Constitution Act, 1982, The Canadian Charter of Rights & Freedoms

31 Edmonton Journal v. Alta, [1989] 2 S.C.R. 1326

32 R. v. Keegstra, [1990] 3 S.C.R. 697

33 Canadian National Task Force on HIV, AIDS and Injection Drug Use: A National Action Plan (1997)", at 3-4, online: www.cfdp.ca/hivaids.html

34 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

35 Supra note 33; Fischer, B., Rehn, J., Blitz-Miller, T., (2000). "Injection Drug Use and Preventive Measures: A Comparrison of Canadian and Western European Jurisdictions over Time", Canadian Medical Association Journal, 162(12), 1709-1713.

36 Canada Communicable Disease Report, "Hepatitis C - Prevention and Control: A Public Health Consensus". Vol. 2552 (Supplement, June 1990; online: www.hc-sc.gc.ca/hpb/lcdc/publicat/ccdr/99vol25/25s2/index.html

37 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]

38 Selected Vital Statistics and Health Status Indicators, 1996-2000: Drug induced deaths by age and gender. Victoria: British Columbia Vital Statistics Agency

39 Canadian Charter of Rights and Freedoms, Constitution Act, 1982, s.7

40 R v. Morgentaler, [1988] 1 S.C.R. 30 at para 90

41 Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 at 587-8

42 Ibid.

43 R. v. Parker, [2000] O.J. No 2787 (Ont. CA) at para. 97

44 R. v. Oakes, [1956] 1 S.C.R. 103

45 Eldridge v. British Columbia, [1997] 3 S.C.R. 624

46 Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; [1997] S.C.J. No. 95 (three concurring judgments)

47 For more discussion of the constitutional, civil and international law issues, see generally Craig Jones, "Fixing to Sue: is There a Legal Duty to Establish Safe Injection Facilities in British Columbia?" (2002)U.B.C. Law Review (forthcoming), and Perry Bulwer, "International Law and the Right to the Highest Attainable Standard of Health Care: Using Safe Injection Facilities to Control and Prevent Epidemics" and "Safe Injection Sites: Compelling the Government to Act", both available online at www.perrybulwer.com