SCC ruling: Insite to stay open

[Sir Bandelot]

Sure. But don't use the SCC as "evidence" that there is a public health benefit. I don't believe they looked at the question and even if they did a finding of 'no benefit in insight case' would not affect their ruling since they are hypothetical situations where a benefit does exist.

What do you mean, they didn't look at the question? In the link from the OP:

The Chief Justice noted that supervised injection sites are being operated successfully in many other countries, including 70 cities in six European countries and in Australia.

“These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services,” she said. “Successful treatment requires acknowledgment of the difficulties of reaching a marginalized population with complex mental, physical, and emotional health issues.

as one example of evidence they must have looked at. They didn't just look at results in the immediate area of Insite.

[cybercoma]

I don't believe they looked at the question [public health benefit]

Indeed, their entire decision was based on the benefit.

Some highlights:

[15] The notion of a supervised injection facility, although politically contentious in North America, has precedent elsewhere. Supervised injection sites have been used with success to address health issues associated with injection drug use in other parts of the world. Safe injection sites operate in 70 cities in six European countries, and in Sydney, Australia. These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services. Successful treatment requires acknowledgment of the difficulties of reaching a marginalized population with complex mental, physical, and emotional health issues.

However, you're claiming it's not successful or that "we don't know". They beg to differ and the injection sites in "70 cities in six European countries" plus Sydney, Australia, disagree as well.

Here is a description of exactly what goes on at Insite, which the SCC calls a description of a "strictly regulated health facility:"

Insite is located on East Hastings Street between Carrall and Main Streets. It is open daily from 10:00 a.m. to 4:00 a.m. the following day. The facility is known to DTES residents. Police refer addicts to it. Insite operates under an extensive and detailed operating protocol approved by Health Canada. It is staffed by a combination of PHS, Health Authority and community workers.

Users must be 16 years of age or over, must sign a user agreement, release and consent form, must agree to adhere to a code of conduct, and cannot be accompanied by children. Users must register at each visit to the site and each is asked to identify the substance that will be injected. No substances are provided by staff. It goes without saying that the substances brought to Insite by users have been obtained from a trafficker in an illegal transaction. Users are obviously in possession of their substance en route to Insite. Approximately 60% of the drugs injected are opioids, of which two-thirds are heroin and one-third morphine or hydromorphone. Approximately 40% of injected drugs are stimulants, approximately 90% of which are cocaine and 10%, methamphetamine.

Insite has 12 injection bays. Users are provided with clean injection equipment which is the only equipment that can be used at the site. Users are monitored by staff during injection. Nurses and paramedical staff provide treatment in the event of overdose and contact a physician and the ambulance service as necessary. Overdoses vary in severity and treatment.

The protocol permits pregnant women to use Insite. They are required to undergo a more intensive assessment than others before being allowed access to the injection room. Those women are also referred to a clinic and child daycare facilities directly managed by the Health Authority, which provides pre- and post-natal care to pregnant women who are actively using illegal substances.

Users who have completed an injection are assessed by staff. They may be discharged to the “chill-out” lounge or treated by a nurse in the treatment room for injection-related conditions. Users requiring extensive or ongoing care are referred to the closest primary care facility, either the Downtown Community Health Centre or the Pender Clinic.

Staff and support workers interact with users at Insite on a one-to-one basis. Users are provided with health care information, counselling and referrals to Health Authority and other service providers. Records indicate that in 2005, 2006 and 2007, staff made 2,270, 1,828, and 2,269 referrals, respectively, to community clinic, hospital emergency, outpatient medical mental health, emergency shelter and community services; and to addiction counselling, housing, withdrawal, methadone treatment, drug recovery, and miscellaneous other services.

Since the fall of 2007, the staff has also been able to refer users to “Onsite”, a detox centre located above Insite which permits Insite to provide detox on demand. Onsite is a drug free environment supported by physicians who are addiction specialists and general practitioners, nurses and peers. Users may also be referred to residential detox and additional treatment services.

At the BC Supreme Court level, Justice Pitfield accepted the findings of the Expert Advisory Committee to the federal Minister of Health. The following contains the list of benefits found by this committee:

[28] With respect to outcomes, Pitfield J. accepted the findings of the Expert Advisory Committee’s report to the federal Minister of Health with respect to Insite (para. 85). In its report, the Expert Advisory Committee concluded, inter alia, that:

• observations in the period shortly before and after the opening of Insite indicated a reduction in the number of people injecting in public;

• there was no evidence of increases in drug-related loitering, drug dealing or petty crime in the area around Insite;

• the local Chinese Business Association reported reductions in crime in the Chinese business district outside the DTES;

• police data showed no changes in rates of crime recorded in the DTES;

• there was no evidence that Insite increased the relapse rate among injection drug users; and

• the cost/benefit analysis was favourable.

In other words, at every level of this appeals process they examined whether it was worth keeping Insite open or not.

So what was the SCC looking at?

[36] The Attorney General of Canada asks this Court to overturn the Court of Appeal’s holdings on the division of powers and the Charter. These questions are considered separately below. The first question is whether ss. 4(1) and 5(1) of the CDSA are constitutionally inapplicable to the activities of the staff and clients at Insite by virtue of the division of powers. The second question is whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter, and if so, whether the infringement is justified under s. 1 of the Charter.

Just to be clear here, ss. 4(1) and 5(1) of the CDSA state:

4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

It's important to note that the CDSA also allows the Minister of Health to issue an exemption to these sections, as deemed necessary for medical or scientific purposes. Insite, as has been mentioned, is considered a medical site.

Section 7 of the Charter states:

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.

Finally, section 1, of course, is the notwithstanding clause.

Before quoting the decision, it's very important to note that according to the Supreme Court "Canada conceded at trial that addiction is an illness."

The court also found that "morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right." So any appeal to the moral argument that someone that commits a crime ought to suffer the consequences is inconsequential to determining whether or not Charter freedoms are applicable.

Oneo of the most important factors in the Supreme Court's decision is the fact that "the [Controlled Drugs and Substances Act] contains not only a prohibition on possession of illegal drugs, but a provision, s. 56, that empowers the Minister to grant exemptions from the prohibition to health service providers like Insite."

What happened, effectively, is that the Minister refused to grant an extension on the exemption to Insite from falling under ss. 4(1) and ss. 5(1) of the CDSA.

The court's decision in a nutshell:

[136] 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, but for the trial judge’s interim order, 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. Based on the information available to the Minister, 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 [note: in the details, the court outlines that this risk extends to users in the community that do NOT use Insite] outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.

So, you say that there is no evidence of a health benefit and that it would not affect the SCC ruling. However, the entire case rests on key facts that cannot be separated: addiction is an illness (accepted by the government as fact); Insite is a medical facility; and there is evidence that it is effective or at the very least the arbitrary denial of its exemption under s. 55 and 56 of the CDSA would result in harm. "Public health benefit" is the entire point of the argument.

[TimG]

However, you're claiming it's not successful or that "we don't know". They beg to differ and the injection sites in "70 cities in six European countries" plus Sydney, Australia, disagree as well.

My point was is they took the scientific claims at face value. They made no attempt to look at them with a sceptical eye to determine if the conclusions are really as strong as they claim. This makes sense because it is not the court's job to arbitrate science.

[Sir Bandelot]

So, you say that there is no evidence of a health benefit and that it would not affect the SCC ruling. However, the entire case rests on key facts that cannot be separated: addiction is an illness (accepted by the government as fact); Insite is a medical facility; and there is evidence that it is effective or at the very least the arbitrary denial of its exemption under s. 55 and 56 of the CDSA would result in harm. "Public health benefit" is the entire point of the argument.

Good post, do you happen to have a link to the actual (complete) court decision?

[Sir Bandelot]

My point was is they took the scientific claims at face value. They made no attempt to look at them with a sceptical eye to determine if the conclusions are really as strong as they claim. This makes sense because it is not the court's job to arbitrate science.

There is no evidence whatsoever that these claims are false, or intentionally fabricated. If so, it is the governments responsibility to prove it in their submission to the case. Since they did not, it seems to be you who are making baseless claims here.

[TimG]

There is no evidence whatsoever that these claims are false, or intentionally fabricated. If so, it is the governments responsibility to prove it in their submission to the case.

It is only governments responsibility to show otherwise if the correctness of the science is the basis for their legal arguments. In this case, the government took the position that criminal concerns trumped any public health issues so there was no need to question the science. The court ruled that it did not. That still leaves a hypothetical avenue open to argue that there are no health benefits and the SCC ruling does not apply but that would be a tough case to make.

Bottom line: the SCC ruling is not an endorsement of the quality of science being used to justify insight.

Edited October 6, 2011 by TimG

[Sir Bandelot]

It is only governments responsibility to show otherwise if the correctness of the science is the basis for their legal arguments. In this case, the government took the position that criminal concerns trumped any public health issues so there was no need to question the science.

And if there was an avenue to show that the claims of health benefits were bogus, this would have been their opportunity to do so. The fact is, they didn't. Their submission did not challenge the science at all.

Neither the government nor the supreme court has time to re-hear cases over and over based on some details that might have been overlooked. These are important cases that have major ramifications across the country. The government lawyers didn't just meet over lunch a few times, to decide on what their arguments against insight would be. So I don't buy the bunk your selling here. Give it up. If there was an easy avenue to defeat these claims, it would have already been carried out.

[TimG]

And if there was an avenue to show that the claims of health benefits were bogus, this would have been their opportunity to do so. The fact is, they didn't. Their submission did not challenge the science at all.

Because they felt they had no need to. They were wrong. I don't understand why you are being so obtuse.

[Sir Bandelot]

Because they felt they had no need to. They were wrong. I don't understand why you are being so obtuse.

If I am being obtuse, then you think you are smarter than teams of government lawyers. Maybe you should consider offering them your professional services?

[TimG]

If I am being obtuse, then you think you are smarter than teams of government lawyers.

What are you talking about? You are the one ASSUMING, without any evidence, that the government lawyers must have decided that they can't argue the science. All I am doing is pointing that not arguing science is NOT evidence that they believed that the science was sound.

[Sir Bandelot]

What are you talking about? You are the one ASSUMING, without any evidence, that the government lawyers must have decided that they can't argue the science. All I am doing is pointing that not arguing science is NOT evidence that they believed that the science was sound.

Well, a lack of scientific evidence on the governments part does not invalidate science presented on Insites part. Simply put, you have no evidence. And yet you say, I am the one who is assuming.

You have nothing.

[TimG]

Well, a lack of scientific evidence on the governments part does not invalidate science presented on Insites part.

I never said it did. All I said is "peer review science" does not equal "truth" - especially in fields with no repeatable experiments and where everything is based on statistical analysis. It could be true. But we don't really know. It would take a fair amount of time to dig into the papers and the reviewers looking for conflicts of interest to determine how reliable this particular batch of peer reviewed science is. Edited October 6, 2011 by TimG

[Oleg Bach]

"

Unanimously" --------------like some how the learned lawyers and judges all agreed all at once on the same thing...so it must be right - after all - all of the unanimous thinking guarantees some sort of collective brilliance......THESE PEOPLE ALWAYS ARE IN TOTAL AGREEMENT NO MATTER WHAT. The always pull the party line.

[Bob]

All 9 Supreme Court Justices agreed unanimously that Insite is a medical facility and absolute enforcement of the possession law would cause harm to people that could otherwise be helped. If there were problems with the studies that all seem to point to the effectiveness of Insite on many levels, don't you think at least one of them would have dissented from the ruling? There is very little if any research that contradicts the small mountain of research that supports Insite. Otherwise, one of the justices would have argued that it is not a violation of section 7 because the medical effectiveness of the site in supporting a person's life and liberty would not be justified.

I don't care if it was a unanimous decision. It was wrong. You think I care how many people see things my way?

I find it amusing how you and the rest of the leftists keep referencing these imaginary "studies" that you've never seen. You, just like the SCoC, make claims to "mountains of evidence" and "research" that support this argument of "harm reduction". Of course you're ignoring the fact that the SCoC's mandate is to apply the law, rather than engage in public policy formulation towards what it believes is in the public interest or greater good. You realize that the SCoC is not there to do what it believes is in the public interest or the greater, right? That is not a substantive legal argument for extending, indefinitely, the immunity of Insite's employees and patrons (and all people within its area?) from laws regulating the possession and trafficking controlled substances.

You're doing exactly what the SCoC is doing, and pretending that you can interpret the law in a completely new way (extending imaginary "rights" from Section 7 of the CCRF in a ridiculous way) and then stating something to the effect of, "oh well, the law doesn't matter, because shielding people from the law of the land serves a greater public interest". The same argumentation could not be extended to an infinite number of other situations, including the hypothetical example I provided earlier regarding illegally obtained evidence being admitted into a trial in order to convict a guilty person, rather than letting him or her go on such a "technicality".

We might as well address this lie of "harm reduction", however, that is constantly advanced by know-nothing leftists who pretend to have read "research" and "studies" and "evidence" regarding Insite's proclaimed benefits. Proponents claim, falsely, that Insite has reduced the transmission of disease via the provision of a "safe" and hygienic location where they can use their drugs. Unless the diseased drug addicts are never sharing their needles with others, which would mean they practically live at Insite, then this is a lie. We know that drug addicts, generally speaking, are the most irresponsible and disgusting people around, and we know they are still spreading disease when getting high in other locations. Personally, this reduction in "disease spreading" certainly will never affect me, as I don't share needles while injecting myself with drugs in order to get high. Moreover, since when was disease spreading via drug users an epidemic worthy of being made a public priority with healthcare dollars? The overwhelming majority of people are not sharing infected needles and getting high, but we do have hundreds of thousands of ordinary Canadians waiting long periods of time for important medical procedures. Why are we wasting money on provisioning new pins and tubes to drug addicts when we have Canadians waiting years in pain for important joint surgeries? We have so many unfulfilled medical needs in this country, yet somehow we're worried about drug addicts spreading diseases amongst themselves as a result of their own irresponsibility. It's insanity where the drug addicts are essentially being prioritized over thousands of other public health needs that are insufficiently covered (I have a friend who has to wait almost a year in order to have plantar warts removed from his via a laser procedure, and family friends that went to the USA for shoulder surgery rather than waiting over two years in Canada). Somehow, the province of British Columbia could find a spare two million dollars per year to run Insite, rather than buying, for example, a new MRI machine in order to help diagnose people with growing illnesses even faster. Somehow the drug addict is more important than the taxpayer whose cancer gets a few more months to keep growing while she waits at home in fear of what she may have.

Then there's this irrelevant benefit of "saving lives". How is it a benefit to save a drug addict from an overdose that would've killed him or her? That is now a public benefit? I certainly don't care about the life of a drug addict, and I certainly have little sympathy for harm that befalls a person due to his or her own poor choices. I feel the same way about alcoholics who suffer from cirrhosis and smokers who get lung cancer, it's particularly disgusting that their behaviour ends up being a huge drain on the public healthcare system. In a country like Canada, where healthcare is a public service, we owe it to one another to be reasonably responsible with our health. Drug addicts are clearly shirking that part of our "social contract" in Canada. We already have Canadians dying because of insufficient healthcare, so why are we prioritizing the lives of drug addicts over non-drug addicts? Because that's exactly what we're doing when we channel limited resources (i.e. money) towards Insite and not towards other unfulfilled needs?

What about the ignored harm caused by Insite to its surroundings? You want criminals drug addicts in your neighbourhood? Near your kids? In your businesses? They bring with them crime, as well as the more difficult-to-measure nastiness that they represent. Most drug addicts are disgusting people who you don't want to be around, so why are we not placing "safe-injection" sites like Insite in obscure places, far removed from the regular population? Oh, that's right, we don't want to inconvenience the drug addict who is entitled to have access to places like Insite within a one-hour bus ride. After all, he has "rights" according Section 7 of the CCRF to immunity from drug possession and trafficking laws. He has "rights" to healthcare for health risks he caused himself. Giving a nice place where lowlife drug addicts can congregate has negative externalities, which are of course ignored by the those on the left that idolize loser drug addicts.

[Bob]

I never said it did. All I said is "peer review science" does not equal "truth" - especially in fields with no repeatable experiments and where everything is based on statistical analysis. It could be true. But we don't really know. It would take a fair amount of time to dig into the papers and the reviewers looking for conflicts of interest to determine how reliable this particular batch of peer reviewed science is.

There is no valid "science" to support any of this "harm reduction" silliness advanced by the left in support of Insite and the SCoC's decision. The only statistics with any validity are the number of overdoses that occurred on Insite premises that received emergency medical intervention that would have otherwise likely killed the drug user. Some of us may not consider that a useful public benefit, anyways. We have ordinary Canadians dying while they wait too long to receive the medical care they need, while we provide drug users with their very own personal emergency response team should they shoot up too much heroin. It's unfathomable.

[cybercoma]

My point was is they took the scientific claims at face value. They made no attempt to look at them with a sceptical eye to determine if the conclusions are really as strong as they claim. This makes sense because it is not the court's job to arbitrate science.

They didn't need to look at the scientific validity of the claims. The site provides a medical service. Requiring drug users to pass around dirty needles, use puddle-water and congregate in public places, rather than approving the exemption under CDSA logically creates harm and infringes upon s. 7 of the Charter. The scientific validity doesn't matter. If it's not logically consistent to you, then perhaps you would be ok with the hospital using dirty needles and puddle water on you when you go there, while they toss the used sharps on the sidewalk outside.

Oh and before you say it is not "requiring" them to do so because drug-use is a choice. The federal government agreed with the lower court's statement that drug addiction is an illness.

Edited October 6, 2011 by cybercoma

[cybercoma]

Good post, do you happen to have a link to the actual (complete) court decision?

I apologize. I meant to post the link and forgot:

http://scc.lexum.org/en/2011/2011scc44/2011scc44.html

[Bob]

They didn't need to look at the scientific validity of the claims. The site provides a medical service. Requiring drug users to pass around dirty needles, use puddle-water and congregate in public places, rather than approving the exemption under CDSA logically creates harm and infringes upon s. 7 of the Charter. The scientific validity doesn't matter. If it's not logically consistent to you, then perhaps you would be ok with the hospital using dirty needles and puddle water on you when you go there, while they toss the used sharps on the sidewalk outside.

Oh and before you say it is not "requiring" them to do so because drug-use is a choice. The federal government agreed with the lower court's statement that drug addiction is an illness.

Why not require a drug user to prove that he or she is an addict before provisioning him or her with clean pins and new tubes, as well as a fancy air-conditioned place to get high with an emergency response team on deck to deal with you in the event that you overdose? Suddenly, every drug user is now an addict, and "entitled" to a "safe injection" site at the expense of the taxpayer, while grandma and grandpa wait years for a hip replacement while suffering from pain and limited mobility.

[cybercoma]

There is no valid "science" to support any of this "harm reduction" silliness advanced by the left in support of Insite and the SCoC's decision. The only statistics with any validity are the number of overdoses that occurred on Insite premises that received emergency medical intervention that would have otherwise likely killed the drug user. Some of us may not consider that a useful public benefit, anyways. We have ordinary Canadians dying while they wait too long to receive the medical care they need, while we provide drug users with their very own personal emergency response team should they shoot up too much heroin. It's unfathomable.

Again, if there is no harm reduction, then perhaps we could save money by having hospitals re-use dirty needles, mix medications with puddle water and throw the sharps into the streets, since, as you claim, there's no evidence of harm reduction by using clean supplies for intravenous medications and keeping sharps off the streets.

[cybercoma]

Why not require a drug user to prove that he or she is an addict before provisioning him or her with clean pins and new tubes, as well as a fancy air-conditioned place to get high with an emergency response team on deck to deal with you in the event that you overdose? Suddenly, every drug user is now an addict, and "entitled" to a "safe injection" site at the expense of the taxpayer, while grandma and grandpa wait years for a hip replacement while suffering from pain and limited mobility.

Your moral qualms are not the courts' concern and the hip-replacement issue is a non sequitor. Edited October 6, 2011 by cybercoma

[Bob]

Again, if there is no harm reduction, then perhaps we could save money by having hospitals re-use dirty needles, mix medications with puddle water and throw the sharps into the streets, since, as you claim, there's no evidence of harm reduction by using clean supplies for intravenous medications and keeping sharps off the streets.

Unless these drug users are always using new pins every time they shoot up and not sharing them when they get high outside of Insite, then they're still spreading disease. Moreover, why do I care? Those diseases aren't going to get to me, I certainly don't go around getting high with infected needles. Meanwhile, other Canadians are suffering and dying while the healthcare service in this country can't provide them with the services they need in a timely fashion. Yet of course two million dollars a year is magically found to assists drug users rather than buying a new MRI machine or hiring a few more specialists where we have shortages.

[Bob]

Your moral qualms are not the courts' concern and the hip-replacement issue is a non sequitor.

No, but the SCoC's moral concerns about justifying judicial activism, with argumentation that is essentially "more good than bad" (which isn't even true), is totally fine with you.

The mentioning of the hip replacement is entirely relevant, as public money is public money. If the two million dollars that went into operating Insite instead went towards hip replacements, grandpa and grandma perhaps wouldn't have to wait three years for their surgeries. And perhaps they wouldn't have to sit on disability while they waited. And perhaps that's a more worthwhile expenditure of healthcare dollars than giving drug users a nice place to shoot up complete with a dedicated emergency response team (that could be out assisting other people in need of such services, for example staffing an ambulance on call) should they be a little too adventurous with their heroin.

[ToadBrother]

No, but the SCoC's moral concerns about justifying judicial activism, with argumentation that is essentially "more good than bad" (which isn't even true), is totally fine with you.

How I love that concept of "judicial activism". It can be invoked every time a judge makes a ruling someone doesn't like.

[Bob]

How I love that concept of "judicial activism". It can be invoked every time a judge makes a ruling someone doesn't like.

Call it whatever you want. Clearly the SCoC is greatly expanding the rights guaranteed under Section 7 of the CCRF, acting as if the prosecution of drug addicts (for which no standard has been set towards establishing what defines the "drug addict") for crimes related to the possession and trafficking of drugs somehow violates these rights.

[Bob]

Come on folks, don't you all know how the most successful rehabilitation centers for drug addicts provide free drugs and clean needles? Oh wait...