Denis Coderre vs. Ottawa on supervised-injection sites

Montreal Mayor Denis Coderre said last Thursday that Ottawa’s approval of four proposed supervised-drug-injection facilities—which allow heroin users to take the drug under the direction and care of medical professionals—“should be a formality.” Rona Ambrose, the federal minister who’d be doing the approving, made it clear she doesn’t see it that way. A showdown is looming. 

There is legitimate concern that the federal government’s refusal to provide speedy approval for future supervised-injection facilities flies in the face of the Charter of Rights and Freedoms and a 2011 Supreme Court decision. The Harper government has faced accusations about playing fast and loose with the Constitution across a myriad of issues. Many constitutional experts have argued that legislation pushed through Parliament, such as the anti-terror legislation (Bill C-51) and new criminal law on prostitution (Bill C-36), are likely in contravention of the Charter. The government has also compiled an impressive series of losses before the court on matters ranging from Senate reform to assisted suicide. (It’s getting so hard to remember this government’s last major win at the court. I’m starting to think of them as the Toronto Maple Leafs of constitutional law.)

But it’s not clear that the federal government is on similarly shaky constitutional ground this time around.

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The federal government has shown contempt for supervised injection, regarded by health experts as an important component of harm reduction, a broader strategy to reduce drug addiction. Although provinces enjoy jurisdiction over health policy and are technically free to establish such facilities, the federal government still has power over criminal law. That means federal exemptions under the Controlled Drugs and Substances Act (CDSA) are needed for these sites to operate.

The policy conflict between harm-reduction advocates and the federal government is further complicated by the court’s 2011 decision that the federal government’s attempt to shut down Vancouver-based Insite, North America’s first supervised-drug-injection facility, contravened drug users’ Charter right to life, liberty and security of the person. Insite was originally established with federal funding and approval. The court found that the health minister’s refusal to extend an exemption for the facility in 2008 was “arbitrary,” in light of evidence that Insite helps to save lives and reduce the spread of disease.

But the court stopped short of saying the Charter requires governments across Canada to open new facilities. Instead, where “the evidence indicates that a supervised-injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the minister should generally grant an exemption.”

The feds responded to this decision with Bill C-2. It lays out an amazing list of criteria the federal health minister is required to consider when approving future exemptions under the CDSA: no fewer than 25 hoops any project must jump through, including:

• scientific and medical evidence demonstrating the benefits of the proposed site;
• letters from the provincial ministers of health and public safety, as well as from the local government, head of the local police force, and local health officials;
• data, including trends, on the number of drug users, crime rates, overdose deaths and diseases in the vicinity of the proposed site, including coroner’s reports;
• a report of “consultations held with a broad range of community groups” and responses to any concerns they might express.

How exhaustive is the list? In the bill, each criteria is identified with a letter, and they go from “a” to “z.1.” The kicker is item z, which includes “any other information that the minister considers relevant.” The bill specifies that the minister is not permitted to make a decision until all of these pieces of information are submitted.

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It’s pretty obvious the federal government is intentionally making it as difficult as possible to get approval for new supervised-injection sites. But that’s not the same as saying Bill C-2 is unconstitutional. Writing for a unanimous court in the Insite case, Chief Justice Beverley McLachlin upheld the federal health minister’s discretion to determine whether to grant exemptions under the CDSA, as long as that discretion was exercised in accordance with the Charter. She noted that among the factors the minister must consider are “evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised-injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.”

Nothing in the list of criteria spelled out in Bill C-2 would appear to be arbitrary, or even inconsistent, with the standard the chief justice herself laid out. A minister might choose to weigh some of it (indications of any community opposition, for example) to frustrate the chances of approval. Nor is it clear that the sheer volume of information required disqualifies the process.

I’m not suggesting that the federal government’s approach is good or principled public policy. Its basic position on supervised injection flies in the face of available policy evidence, not to mention basic compassion. But “good public policy” isn’t the standard by which the court assesses the constitutionality of governmental decisions (at least, it’s not supposed to be).

Bill C-2 was dubbed “The Respect for Communities Act” (because, when you can’t come up with good policy, you might as well come up with good sloganeering), a title that emphasizes the “community support” criteria the court itself included in the list of factors the health minister must take into account. Given the court’s harm-based approach in the Insite case, it’s odd to see how something like community support can weigh against other factors that might demonstrate the need for a facility. If the federal government refuses to provide exemptions for new proposals and defends its decision-making with reference to the court’s own criteria, it would be interesting to see the justices untangle this knot.

With luck, it won’t come to that. The chief justice stated in 2011 that the refusal of an exemption “threatens the health, indeed the lives, of the claimants and others like them.” Across the country, others wait for the service the court protected for Vancouver addicts. They shouldn’t have to wait for another round of prolonged litigation to get it.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. Follow him on Twitter @EmmMacfarlane