PHS Community Services Society v Attorney-General (Canada) 2008 BCSC 661 (27 May 2008) The Supreme Court of British Columbia recently declared that laws which made safe self-injecting rooms illegal were unconstitutional and incompatible with the rights to life, liberty and security of the person in the Canadian Charter of Human Rights and Freedoms.
The Controlled Drugs and Substances Act 1996 criminalises possession and trafficking of controlled substances. The applicant, PHS Community Services Society, runs a safe injecting facility and had previously sought and been granted an exemption to the legislation such that its drug users and staff would not be liable for possession or trafficking. On this occasion, PHS challenged the constitutionality of the sections arguing that they deprive addicted persons of health care and so violate the fundamental right to life, liberty and security of the person. The Canadian Attorney-General replied that while the rights were engaged, the plaintiffs had not been deprived of the rights in a manner contrary to principles of fundamental justice as criminal prohibitions on possession and trafficking are a reasonable restraint on these rights as they are not arbitrary, broad or disproportionate.
In a very progressive decision, Pitfield J struck down the constitutionality of the provisions which made possession of illegal drugs an offence, if they are applied to an addict seeking a safe environment to inject.
The Court held that the sections are inconsistent with the Canadian Charter and ‘engaged the right to life because it prevents healthier and safer injection where the risk of mortality resulting from overdose can be managed’. The sections also engaged the right to security of the person as they forced addicts to feed their addition in ‘an unsafe environment when a safe environment that may lead to rehabilitation is the alternative.’
The Court recognised the broader health implications and said that federal drug laws that prohibit the management of addiction and its associated risks ‘are inconsistent with the state's interest in fostering individual and community health, and preventing death and disease.’ The Court issued a suspended declaration of constitutional invalidity which provides the Canadian Parliament with until June 2009 to amend the legislation.
Relevance for the Victorian Charter
The case is important authority for the interpretation and protection of the rights to life and liberty and security of person under ss 9 and 21 of the Victorian Charter.
The case is also an encouraging recognition that safe injecting is a health issue and of such importance that it may override the public interest in criminalising drug use. In this way, the case will be of assistance in challenging problematic arbitrary policies relating to drug use, in particular the finding that legislation ‘which applies to possession for every purpose without discrimination or differentiation in its effect, is arbitrary. … Instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributes to the very harm it seeks to prevent.’
The decision is available at http://www.cfdp.ca/sif_bcsc.pdf.
Phoebe Knowles is a lawyer on secondment to the Human Rights Law Resource Centre from Minter Ellison