Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network. Nicholas Caivano is a policy analyst with the Legal Network.
Plus ça change. On Sept. 30, 2011, the Supreme Court of Canada ruled in favour of Vancouver's Insite, North America's first legally authorized safer injection site. It was the culmination of a years-long struggle to open – and then keep open, in the face of active hostility by the government of the day – one health facility that could help address the crisis of HIV and of overdose deaths among people injecting drugs in the Downtown Eastside.
Five years later, history is repeating itself, unnecessarily. The struggle for safer injection services continues against the backdrop of another deadly crisis of fatalities and injuries related to opioid overdose, this time on a national scale. British Columbia has again declared a public health emergency.
These injuries and deaths can be prevented. As the Supreme Court confirmed in its historic judgment, safer injection sites save lives. The court was also clear that criminal laws prohibiting drug possession cannot be allowed to impede the effective operation of such services. It ordered the health minister of the day to issue an exemption from those laws so Insite could operate.
In response, the then-government flouted the ruling by passing an egregious new bill – the cynically named Respect for Communities Act – to create multiple bureaucratic barriers to ever getting such a ministerial exemption to operate such services.
The result is that in 2016 it is harder than ever to legally establish such services. There are still only two in the entire country.
As the staggering toll of overdose deaths continues to rise, repealing this harmful law is more urgent than ever. It is past time to institute a straightforward, simple process for applications to enable safer injection services to operate without risk of criminal prosecution.
Proposals to implement such services are being considered in municipalities across Canada. But instead of enabling access to them, the Respect for Communities Act makes it exceedingly difficult for public health and community agencies to get the ministerial exemption needed to operate them legally.
The hurdles the legislation creates are unjustifiable.
The law requires applicants to engage in excessive consultations and submit extensive information before the health minister is even permitted, by law, to consider the application. Much of what is required is unnecessary and unwarranted, including the "opinion" (whether based on evidence or not) of various institutions and entities – ones that, in plenty of places, have already demonstrated their opposition to safer injection facilities or reluctance to endorse them.
The law also directs that a health minister may only issue an exemption in "exceptional circumstances," exactly the opposite of what the Supreme Court ruled five years ago.
No other health service is subject to such politicized scrutiny and hurdles. Years of work shouldn't be required to implement a straightforward, life-saving service. But the law, rooted in prejudice against those the former government repeatedly dehumanized as "junkies," continues to violate the Charter of Rights and Freedoms every day it contributes to a delay in scaling up these urgently needed services.
For months, Canada's new government has been saying that it's open to changing the law if it creates barriers to safer injection sites. There's plenty of evidence of the many ways in which the law does precisely that. Just last week, as overdose deaths continue to rise, B.C.'s top health officials reported to the media that two new anticipated sites face hurdles created by the law.
Despite this, the government hasn't yet committed to any changes. The delay is unconscionable.
Five years ago, the Supreme Court ruling was a momentous step forward. But rights vindicated on paper are largely meaningless if one government can block their realization with deadly legislation in response, and then another government then fails to remove this barrier while professing its concern.
The barest minimum that can and should be done is to take down the barriers to safer injection sites. The government should repeal the Respect for Communities Act without delay. Lives hang in the balance.