The Law of Safe Injection Drug Sites.

AuthorBowal, Peter


Vancouver, British Columbia consistently ranks as one of the most livable cities in the world. However, its Downtown Eastside (DTES) community of approximately 18,000 crammed into a few square blocks of social housing units, derelict buildings and temporary shelters--all in the shadow of an affluent downtown--is a glaring exception to livability.

Some 260 different agencies in the DTES offer programs and services. One such agency is the Portland Hotel Society (PHS) which manages social housing units for the provincial government. PHS also manages Insite, North America's first legal supervised injection site for illegal drugs.

Insite was established in 2003 as an experimental pilot project by health authorities to contain the spread of HIV and Hepatitis C, which had been an epidemic in the DTES throughout the 1990's. Insite became the flagship component of a comprehensive harm reduction strategy to tackle addictions.

Harm reduction is controversial. It provides clean needles to reduce harm from illegal drug use. Harm reduction strives to engage with drug addicts, keep them alive, offer treatment options when they confront their addiction and reduce the spread of disease. The federal government exempted Insite from the application of the Controlled Drugs and Substances Act. Staff and users of Insite were not subject to trafficking and possession laws.

By 2008, the Conservative government, elected on a law and order mandate, no longer supported harm reduction. When the exemption came up for renewal, the federal government decided not to continue with the experiment.

A court battle ensued between PHS, the provincial government and social advocates on one side and the federal government on the other side. It ended in 2011 at the Supreme Court of Canada in Canada v PHS Community Services Society. Could the federal government shut down the supervised drug injection, a health care facility, on constitutional grounds?

Federal or Provincial Authority?

The federal government has constitutional authority to create crimes around dangerous drugs, but the province also claimed authority over delivery of health care services. Under the doctrine of Inter-jurisdictional Immunity, the federal government was held to be immune from provincial health laws which interfered with the ability of the federal government to enact and enforce drug crimes.

Charter of Rights and Freedoms

PHS argued that drug addicts had a Charter right to the safe injection...

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