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Canadian court approves drug injection facility. Is sex work next?

The Canadian Supreme Court issued a landmark decision today in Canada v PHS Community Services, a case concerning the Vancouver supervised drug injection facility Insite.

Insite had been operating for several years, and there was both anecdotal and scientific evidence to demonstrate its effectiveness in keeping injecting drug users alive, improving their access to safe injection information and encouraging them into treatment – without leading to increased numbers of new or relapsed users. It operated under a discretionary exemption to federal drug laws, an exemption which the Conservative government eventually decided not to renew.

The Court had a few questions to answer, but the key one from my perspective was whether this decision breached Insite users’ rights under Section 7 of the Canadian Charter of Rights and Freedoms, which states:

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.

The Court unanimously ruled that it did. It stated:

 The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision…would have been to prevent injection drug users from accessing the health services offered by Insite, threatening the health and indeed the lives of the potential clients.  The Minister’s decision thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights…this limit is not in accordance with the principles of fundamental justice.  It is arbitrary, undermining the very purposes of the CDSA, which include public health and safety.  It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.

In response to Canada’s argument that it was a “policy question” whether or not to grant such exemptions – you can read this argument as saying “we know we haven’t got a leg to stand on as far as evidence is concerned, but we should be able to impose our moral and ideological view anyway” – the Court stated:

The issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. There is room for disagreement between reasonable people concerning how addiction should be treated.  It is for the relevant governments, not the Court, to make criminal and health policy. However, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter…The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use.  It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with Charter.

So strongly did the Court feel about the matter that it did not, as I had feared it might, take the easy way out and issue a mere declaratory order (essentially, one that acknowledges a right was violated without requiring any concrete action on the government’s part). Instead, it mandated the Minister for Health to grant the exemption. Although exemptions are discretionary, it stated, that discretion must be exercised in a manner compatible with the Charter – and

 On the trial judge’s findings of fact, the only constitutional response to the application for a s. 56 exemption was to grant it.

Clearly, this is a massive victory for the users of the Insite facility, for harm reduction principles, and for simple common sense. It’s also a welcome step along Canada’s slow path of developing a constitutional right to health (like Iarnród Éireann, they’re not there yet, but they’re getting there). And finally, it points in a favourable direction for the outcome of another landmark case, Bedford v Canada, a challenge to laws that criminalise various aspects of sex work.

To summarise Bedford briefly, it concerns provisions of the Canadian Criminal Code that outlaw keeping a “bawdy-house” (which basically means any place regularly used for commercial sex, even if by only one sex worker), living off the proceeds of another person’s sex work, or communicating in public for the purposes of engaging in paid sex. These provisions were struck down by an Ontario Court on the basis of absolutely mounds of evidence showing that they materially contributed to sex workers’ risk of violence – without having any demonstrable effect on the amount of paid sex actually taking place. Judge Susan Himel found that

there are ways of conducting prostitution that may reduce the risk of violence towards prostitutes, and that the impugned provisions make many of these “safety-enhancing” methods or techniques illegal.

The parallels to the Insite case should be obvious. Both concern behaviours that the government wishes to condemn on moral grounds, and the use of criminal laws as a tool of its condemnation. Though in both cases a deterrent effect was also alleged, this was not supported by the evidence before the court. To the contrary, the only effects demonstrated were threats to the lives and safety of vulnerable people affected by the laws – in violation of their Charter rights to life, liberty and security of the person.

Of course, the two cases aren’t entirely analogous. Insite concerns the direct provision of a type of medical care, while Bedford is really about avoidance of harms caused by third parties (there is a significant body of evidence linking criminalisation of sex work with diminished access to health care, but the plaintiffs didn’t make that argument). And it was significant in Insite that addiction is viewed as a disease: the Court saw this as undermining Canada’s claim that it is not drug laws, but rather drug users’ behaviours, that give rise to the dangers they would face if the injecting facility was shut down. In the ongoing Bedford case, Canada is continuing to blame sex workers for their own risks, and “disease” is obviously not something the plaintiffs can (or would want to) come back with.

Nonetheless, it’s hard not to see the Insite judgment as a decisive victory for evidence over ideology, a rejection of the imposition of laws that have a demonstrably harmful effect on a particular population and no apparent beneficial effect apart from making some people feel good about the morally-derived “message” conveyed. And that has to bode well for the future of Bedford (currently awaiting an appellate decision, which itself is likely to be appealed to the federal Supreme Court). It’s still always possible that the courts will find the Criminal Code provisions against sex work so materially different to the withdrawal of Insite’s exemption that a different ruling must apply. But if I was Terri Jean Bedford, or any Canadian sex worker, I think I’d be wearing a hopeful smile today.

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About Wendy Lyon

Fighting a lonely battle for evidence-based policy and the proper use of apostrophes.

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