VIANARCHRIS
Well-Known Member
https://www.thelawyersdaily.ca/articles/4539/safe-injection-site-exemption-should-be-expanded-to-marijuana-dispensaries-aaron-harnett
On Aug. 21, Toronto welcomed its first “legal” safe injection site, The Works, near Yonge Street and Dundas. Vancouver had a bit of a head start on Toronto in this, having been at it since 2003. In the face of what has been called an opioid epidemic, even a city as conservative as Toronto, (which still had Prohibition-era dry areas as late as 1997) really has no choice but to give intravenous drug users a safe place to inject.
Given that the drugs being injected by the patients are still highly illegal, there is often confusion about the legal status of these safe injection sites. Are the health workers a party to the possession of the controlled substance by aiding or abetting their use? Are the patients themselves liable to arrest for possession?
The Controlled Drugs and Substances Act (CDSA) is federal legislation that creates the illicit-drug prohibition. Provincial health legislation is incapable of superseding the CDSA, as was established in the landmark Supreme Court case of Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44, (often referred to as the “Insite case.”)
While the purpose of the CDSA is the protection of health and public safety, it is criminal law in pith and substance and properly falls under federal jurisdiction. So, the Ontario minister of health cannot protect or sanction the safe injection site. So where does that leave health care workers who run The Works?
In 2015 s. 56.1 of the CDSA was enacted, and it specifically provides a mechanism for exemption from the application of the CDSA to operate a safe injection site for illicit drugs. That mechanism is a direct legislative response to the Insite case, wherein the SCC essentially mandated that the minister of health grant a CDSA exemption to allow the Vancouver clinic to continue to operate. S. 56.1 sets out the requirement that provincial and municipal political bodies as well as local law enforcement and community groups endorse the exemption.
But something surprising happened regarding the Toronto application for CDSA exemption for the three permanent safe injection sites, which are under construction. The “pop-up” site, which opened Aug. 11, was not authorized by Health Canada. That site was set up without the CDSA exemption, and was opened by staff in response to a sense of genuine urgency. For a week it operated in violation of the CDSA. It was no more legal than the medical marijuana dispensaries that have been vigorously prosecuted and shut down by the City of Toronto and the Toronto Police Service. However, Toronto Police Service, after meeting with organizers, decided not to enforce the law and allowed the illegal site to operate in the interests of public health.
This is an appropriate exercise of police discretion, of course, and a good example to remember as the calamitous “war on drugs” continues to finally draw to a close.
In Vancouver, police discretion has been exercised to allow the city to create an entire bylaw scheme to allow medical marijuana dispensaries to operate, notwithstanding the criminal prohibition against them continues. Some recent research suggests that increasing adult access to both medical and recreational cannabis has significant positive impacts on public health and safety as a result of “substitution effect.”
Observational and epidemiological studies have found that medical cannabis programs are associated with a reduction in the use of opioids and associated morbidity and mortality. Science continues to demonstrate the current prohibitionist approach harms, not helps, public health. Given the glacial pace of major legislative reform, sensible and progressive police discretion may be the best way to help those suffering during this opioid crisis. And that discretion should be exercised to allow medical marijuana dispensaries in major cities alongside safe injection sites.
On Aug. 21, Toronto welcomed its first “legal” safe injection site, The Works, near Yonge Street and Dundas. Vancouver had a bit of a head start on Toronto in this, having been at it since 2003. In the face of what has been called an opioid epidemic, even a city as conservative as Toronto, (which still had Prohibition-era dry areas as late as 1997) really has no choice but to give intravenous drug users a safe place to inject.
Given that the drugs being injected by the patients are still highly illegal, there is often confusion about the legal status of these safe injection sites. Are the health workers a party to the possession of the controlled substance by aiding or abetting their use? Are the patients themselves liable to arrest for possession?
The Controlled Drugs and Substances Act (CDSA) is federal legislation that creates the illicit-drug prohibition. Provincial health legislation is incapable of superseding the CDSA, as was established in the landmark Supreme Court case of Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44, (often referred to as the “Insite case.”)
While the purpose of the CDSA is the protection of health and public safety, it is criminal law in pith and substance and properly falls under federal jurisdiction. So, the Ontario minister of health cannot protect or sanction the safe injection site. So where does that leave health care workers who run The Works?
In 2015 s. 56.1 of the CDSA was enacted, and it specifically provides a mechanism for exemption from the application of the CDSA to operate a safe injection site for illicit drugs. That mechanism is a direct legislative response to the Insite case, wherein the SCC essentially mandated that the minister of health grant a CDSA exemption to allow the Vancouver clinic to continue to operate. S. 56.1 sets out the requirement that provincial and municipal political bodies as well as local law enforcement and community groups endorse the exemption.
But something surprising happened regarding the Toronto application for CDSA exemption for the three permanent safe injection sites, which are under construction. The “pop-up” site, which opened Aug. 11, was not authorized by Health Canada. That site was set up without the CDSA exemption, and was opened by staff in response to a sense of genuine urgency. For a week it operated in violation of the CDSA. It was no more legal than the medical marijuana dispensaries that have been vigorously prosecuted and shut down by the City of Toronto and the Toronto Police Service. However, Toronto Police Service, after meeting with organizers, decided not to enforce the law and allowed the illegal site to operate in the interests of public health.
This is an appropriate exercise of police discretion, of course, and a good example to remember as the calamitous “war on drugs” continues to finally draw to a close.
In Vancouver, police discretion has been exercised to allow the city to create an entire bylaw scheme to allow medical marijuana dispensaries to operate, notwithstanding the criminal prohibition against them continues. Some recent research suggests that increasing adult access to both medical and recreational cannabis has significant positive impacts on public health and safety as a result of “substitution effect.”
Observational and epidemiological studies have found that medical cannabis programs are associated with a reduction in the use of opioids and associated morbidity and mortality. Science continues to demonstrate the current prohibitionist approach harms, not helps, public health. Given the glacial pace of major legislative reform, sensible and progressive police discretion may be the best way to help those suffering during this opioid crisis. And that discretion should be exercised to allow medical marijuana dispensaries in major cities alongside safe injection sites.