THE OPIOID CRISIS AND SECTION 7: CHARTER IMPLICATIONS OF SAFE SUPPLY AND SIMPLE POSSESSION.

• Author: Diab, Robert

INTRODUCTION

Canada has grappled for many years with a high mortality rate among people overdosing on illicit substances or engaging in unsafe injection practices. British Columbia ("BC") and other provinces have sought to address part of the problem by providing safe injection sites, with some success. (1) But, in the past decade, BC, Ontario, Quebec, and New Brunswick have witnessed a sharp increase in the quantity of fentanyl found in the street supply of illicit drugs, causing fatality rates to soar. (2) BC declared a public emergency in 2016 and launched a series of initiatives. (3) By early 2019, BC's Provincial Health Officer estimated that measures employed since 2016 had saved as many as 60% of potential deaths by overdose, but found the mortality rate was still rising. (4) The crisis has since become more severe, with recent reports finding that 20 people were dying from drug overdose every day in Canada and 6.2 people every day in BC. (5) The COVID-19 pandemic has disrupted efforts to connect vulnerable persons with effective supports, and fentanyl continues to appear in the street supply in ever higher concentrations. (6) Many stakeholders point to the criminalization of simple possession as a further accelerant, by raising concerns that such criminalization leads to solitary and dangerous consumption patterns or impedes access to life-saving supports. (7)

BC and other provinces are presently attempting to address the crisis in two ways: (1) by continuing to provide a safe supply of narcotics, and (2) by lobbying for decriminalization of simple possession so as to encourage vulnerable persons to work with, rather than avoid, authorities. (8) Some doctors are skeptical of the merits of safe supply, but there is ample evidence demonstrating that it has been effective in saving lives. (9) A change in government at the provincial or federal level could jeopardise the program. (10) The Trudeau government has rejected calls to decriminalize simple possession, opting instead to table Bill C-22 in February 2021. (11) The bill codifies a policy that encourages police to consider diversion in cases where possession appears to relate to addiction rather than trafficking. (12) But some suggest that police discretion is not enough. Addicted persons will still fear police involvement, which will contribute to dangerous consumption patterns. (13) At the time of writing, the City of Vancouver and the Province of British Columbia have formally applied to the federal Health Minister to exempt Vancouver and/or all of BC from the application of the offence of simple possession in the Controlled Drugs and Substances Act ("CDSA"). (14)

We undertake in this paper to assess the constitutional validity of a decision to suspend the safe supply program and to refuse to issue a limited exemption from the offence of simple possession, as well as the validity of a new government's decision to suspend either exemption while the opioid crisis continues. Does Canada's Charter of Rights and Freedoms ("Charter") guarantee a right to safe supply if a province is willing to provide it? (15) Does evidence about the impact of criminalization on consumption patterns, in areas most affected by the opioid crisis, give rise to a Charter right to an exemption from prohibition in those areas? Is Charter litigation an appropriate tool for policy making in this context?

The Supreme Court's decision in Canada (Attorney General) v PHS Community Services Society, involving Charter rights in the context of safe injection sites, has direct implications for the future of the safe supply program and for decriminalization. (16) We argue that a case can be made for the continued right to a safe supply of controlled substances that is analogous to the arguments set out in Insite for safe injection. We contend that a ministerial decision to deny a continued exemption for safe supply would be arbitrary and grossly disproportionate in its effects in light of the evidence showing that it saves lives, does not result in a rise in crime rates, and that suspending it would cause more fatalities. With respect to decriminalization, the Court in Insite refused to find the offence of simple possession as it applied to anyone (not just clients of Insite) contrary to section 7, due to a lack of evidence at trial that it hindered access to health care. We suggest that the current crisis presents a new and substantially different evidentiary basis for making this case with respect to users in affected regions.

The continuation of the safe supply program or an exemption from prohibition for Vancouver or BC--should it be granted in the near term--would not render the assessment in this paper moot. By examining the validity of both potential Charter challenges in some detail, we hope to provide law scholars and policy makers alike a better sense of the legal boundaries of the viable policy options. Safe supply and exemption from prohibition may or may not be good policy, but if a clear case can be made that denying either would be unlawful, the debate proceeds on a different footing.

We begin by providing a brief overview of the empirical facts relevant to the possible Charter challenges we examine, with a focus on BC. In Part 2, we summarize the trial and Supreme Court of Canada ("SCC") holdings in the Insite case, highlighting findings of fact and aspects of the Court's ruling on section 7 relevant in the present context. In Part 3, we set out arguments for a Charter right to a continued exemption under the CDSA to facilitate safe supply and a right to a geographically limited exemption from simple possession. We conclude by considering the merits of using the Charter as a tool for policy making in this context.

1. CONTEXT

   The potential Charter challenges we explore in this paper should be grounded upon a larger factual and evidentiary matrix. These facts include the nature and severity of the opioid crisis in BC and other parts of Canada, the operation and effects of the safe supply program, and the role that the criminalization of simple possession plays in exacerbating the opioid crisis. We canvas each of these points briefly to lend context to what follows.

   Overdose deaths from illicit drug use in BC and other parts of Canada have long been a concern, but in the past decade, the scale of the problem has vastly increased. From 2005 to 2009, 815 people died in Canada from drug overdoses. (17) An extensive report published in 2019 by BC's Provincial Health Officer, Dr. Bonnie Henry, notes that deaths due to drug overdoses have risen in BC since 2012 and "accelerated exponentially since 2015." (18) Dr. Henry describes a "significant increase both in number and in geographic spread of overdose deaths that has continued to impact every corner of the province." (19) In April 2016, BC declared a public health emergency under the Public Health Act, enabling the Provincial Health Officer to marshal additional resources. (20) Despite various efforts, by 2019 over 3700 people had died in the province from illicit drug overdose, as many as 4 deaths per day. (21) The deceased included persons of various socio-economic backgrounds, including a disproportionate number of men between ages 30 to 59 and Indigenous persons. (22) The "vast majority" of overdose deaths involved people "using drugs alone and indoors." (23)

   COVID-19 has exacerbated the opioid crisis in BC. In 2020, the number of emergency medical service responses to suspected overdoses leapt from 2,927 between January and March to 4,356 between April and June. (24) Some 1,767 people died of overdose in 2020, and 2,232 in 2021. (25) The number of people dying per day has risen from 4.8 in 2020 to 6.2 in 2 0 21. (26) COVID-19 has complicated or diminished access to health services by causing harm reduction sites to close or provide fewer services, placing drug users at increased risk of contracting HIV or Hepatitis C, overdosing, contracting infection, or experiencing other harms. (27) The pandemic has also exacerbated a tendency among most illicit drug users to consume in solitude, making life-saving intervention less likely. (28)

   The numbers nationally show a similar surge in overdose deaths in recent years, under similar conditions. (29) The federal government's Public Health Infobase reports "24,626 apparent opioid toxicity deaths" from January 2016 to March 2021, with 90% in between January and June 2021 occurring in BC, Alberta, and Ontario. (30) While 90% of deaths in the first half of 2021 "involved a non-pharmaceutical opioid," 87% of deaths involved fentanyl. (31) A 2019 study by the Public Health Agency of Canada found that "[C]haracteristics more frequently observed among those who died: included.... being alone at the time of overdose". (32)

   The chief cause of the opioid crisis is the increasing amount and toxicity of fentanyl in the street supply of opioids. Fentanyl is a synthetic opioid analogous to morphine in its neurochemical effects, but roughly 50 to 100 times more powerful. (33) Initially prescribed in clinical settings to relieve pain, it came to be produced in underground labs and introduced into the street supply by being laced with various other drugs to render them more powerful in smaller doses and more profitable. (34) As Dr. Henry's report indicates, in 2012 fentanyl was found in only 5% of illicit drug overdose deaths, whereas by 2018, it was found in 85% of cases. (35) Buyers tend to be unaware of the fentanyl content in the heroin, cocaine, or methamphetamine they purchase on the street, and even a two milligram dose of fentanyl is considered lethal. (36) The lack of quality control, the amount of fentanyl in general circulation, and the ease of inadvertent consumption of lethal amounts have all contributed to a death rate that continues to grow.

   In 2019, the federal government began funding various safe supply pilot projects, often involving the use of hydromorphone, a legal...