PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 (15 January 2010)
The British Columbia Court of Appeal has held that the denial of access to health care services, including safe injecting facilities, for people with severe drug dependency may violate the rights to life, liberty and security of person.
Sections 4 and 5 of the Controlled Drugs and Substances Act 1996 (‘CDSA’) criminalise possession and trafficking of controlled substances. The respondent, PHS Community Services Society, operates a safe injecting facility in downtown Vancouver, called Insite. The users of the facility are overwhelmingly people who suffer drug dependency and a combination of homelessness, unemployment, chronic illness and poor mental health. PHS, together with two service users, sought a declaration that ss 4 and 5 of the CDSA ‘are unconstitutional and should be struck down because they deprive persons addicted to one or more controlled substances of access to health care at Insite and therefore violate the right conferred by s 7 of the Canadian Charter of Rights and Freedoms’. Section 7 recognises ‘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’.
Canada opposed the grant of relief, arguing that the impugned provisions of the CDSA do not engage the rights to life, liberty and security but, if s 7 is engaged, the limitations on rights thereby imposed are reasonable and proportionate.
It was accepted as fact by all parties that drug dependency is an illness, that the use of unsanitary equipment and procedures for drug injection is strongly associated with blood borne virus transmission, and that the health risks associated with drug injecting (including mortality, morbidity, overdose and disease transmission) are significantly ameliorated by injecting in a supervised facility. The evidence demonstrated that the supervision and health services provided by Insite ‘virtually eliminate the risk of overdose’ and ‘provide access to counseling and consultation that may lead to abstinence and rehabilitation’.
The Court of Appeal unanimously held that the relevant provisions of the CDSA engage the rights to life, liberty and security of person with respect to the services provided at Insite.
Right to Life
The Court held that the ‘right to life is engaged because Insite’s health services and harm reduction policies prevent death by overdose’. It was found, as a matter of fact, that ‘an addict’s risk of death by injection is reduced when it is undertaken in the presence of Insite’s health professionals who are able to ensure that he or she, in the event of an overdose, receives immediate medical treatment’. Conversely, ‘the injection of drugs without medical supervision poses a risk of death to the users’. According to Rowles J, ‘a law that prevents access to health care services that could prevent death engages the right to life’.
Right to Liberty
The Court held that the right to liberty is engaged because the CDSA provides for prosecution and possible imprisonment of users and health care providers at Insite. The Court noted that the right to liberty is engaged when ‘the state impedes the right to make decisions that are of fundamental personal importance through a threat of prosecution’. In the present case, the Court stated that the application of the CDSA ‘would have the effect of interfering with the liberty of the personal respondents and those who are similarly situated by foreclosing a choice to minimize the potentially life-threatening hazards of overdose and other serious and life-threatening illnesses through the health services offered at Insite’.
Right to Security of Person
The right to security of person encompasses a notion of personal autonomy and the protection of physical and psychological integrity. The Court held that the right to security of person is engaged because the CDSA has the effect of denying access to a health care facility. The Court stated that the ‘nature of addiction is such that denying addicts health care services that would ameliorate the effects of their condition, and therefore management of the harm, engages security of the person’.
Are the Limitations on the Rights to Life, Liberty and Security Permissible?
By a 2:1 majority, the Court of Appeal held that the limitations imposed on the rights to life, liberty and security by the impugned provisions of the CDSA were ‘not in accordance with principles of fundamental justice’ as required by s 7 of the Charter nor reasonable, necessary and proportionate limitations in accordance with s 1.
The majority held that ss 4 and 5 of the CDSA are ‘overbroad’, in that they go beyond what is necessary to accomplish the state’s objective, and ‘arbitrary’, in that they do not bear a sufficient evidentiary relationship with that objective. According to Rowles J:
by virtue of their long-term addictions to hard drugs combined with their poverty, mental and physical disabilities, histories of sexual and physical abuse, homelessness, genetic, psychological, sociological and familial problems, this very vulnerable population is one where the possession offence provisions of the CDSA have no salutary effect and fail to meet the objective of Parliament by its enactment.
Without Insite, addicts will beforced back into the alleys and flophouses where they will continue to inject hard drugs, but in squalid conditions, thereby risking illness and death, not only to themselves but also to others in the community who become infected through the sharing of dirty needles or through intimate contact with an infected person.
The effect of the application of the CDSA provisions to Insite would deny persons with a very serious and chronic illness access to necessary health care and would come without any ameliorating benefit to those persons or to society at large.
Additionally, the majority pointed to evidence that the presence and operation of Insite did not result in any increase in ‘loitering, drug dealing or drug-related crime’, nor that it in any way normalised drug use.
Relevance to Victorian Charter
Legally, this decision is highly relevant to Victoria. Section 9 of the Victorian Charter enshrines the right to life, while s 21 protects the rights to liberty and security of person. Further, the limitations analysis undertaken pursuant to s 7 of the Victorian Charter is very similar to that undertaken pursuant to its progenitor, s 1 of the Canadian Charter: see R v Oakes  1 SCR 103.
Factually, this decision is also highly relevant to Victoria. According to the Commonwealth Department of Health, ‘the majority of hepatitis C infections in Australia occur due to unsafe injecting drug-use practices, such as sharing of injecting equipment’. Similarly, the Australian Institute of Health and Welfare has found that ‘drug use poses risk in itself through impure or overly-pure content, but also through shared use of injecting equipment and the associated transmission of bloodborne viruses’. Despite this, there are no medically supervised injecting facilities in Victoria. Perhaps even more alarmingly, notwithstanding the very high incidence of blood borne virus transmission among prisoners, Victorian prisons do not provide access to needle and syringe exchange programs, thereby creating a significant risk to both prisoner and community health.
The decision is available at http://www.courts.gov.bc.ca/jdb-txt/CA/10/00/2010BCCA0015.htm.
Phil Lynch is Director of the Human Rights Law Resource Centre