Insite Ruling May Transform Health Care

Currently, the justices of the Supreme Court of Canada are mulling over the fate of Insite, Vancouver's supervised safe injection hub.

After hearing arguments from a number of parties at the case's hearing on May 12, the top court must respond to two lines of argument: whether authority over Insite belongs to the provincial or federal government, and whether shutting it down would amount to a violation of the rights of drug users.

It's likely to be some time until a final decision on Insite is reached, and for good reason.

While the stakes are high for intravenous drug users, the court's reasoning will also have a major impact on health care and health rights in Canada.

For one, the ruling will come just as the federal and provincial governments begin renegotiating their health care funding agreement. And, the decision is likely to become the key precedent for future Charter health rights cases -- including an upcoming, high profile case in B.C.

Who should control Insite?

The first argument at the Supreme Court revolves around who has rightful authority over Insite -- Ottawa or B.C.

The federal government argues that the 2010 B.C. Court of Appeal's decision -- holding that the absolute prohibition of the possession and trafficking of drugs is unconstitutional based on federalism grounds -- was the wrong one.

According to the feds, when a federal law conflicts with any sort of provincial activity or program, the federal law is 'paramount' and the provincial program or law must comply with it.

With respect to Insite, the feds insist that despite British Columbia's efforts to provide harm reduction for drug users, possession and trafficking of drugs is illegal by federal law, and therefore trumps any concern about health care.

In response, the Portland Hotel Society -- the organization that operates Insite -- argues that while they concede that the federal drug laws are generally constitutional, they should not apply where they make the delivery of health care services illegal. According to PHS, because Insite was created by the province to provide health services to residents of Vancouver's Downtown Eastside neighborhood, it should be immune to federal drug laws.

What about user rights?

Secondly, the federal government argues that the rights of drug users would not be infringed if Insite were shut down, as the prohibition of illegal drug possession is not inconsistent with the Charter.

They say that the section 7 Charter rights of Insite users -- those of life, liberty and security of the person -- are not "engaged" by the prohibition of drug possession. The risks posed by intravenous drug use, according to the federal government, are not imposed by federal drug laws, but by the individual choices of drug users.

They also argue that there is no link between the prohibition of drug possession and the threat to the rights of Insite users.

PHS counters that because drug laws apply to all Canadians without regard to an individual's circumstances, they are arbitrary and overbroad where they deny Insite users' access to health care -- in this case, access to the treatment necessary to alleviate the risks of addiction and intravenous drug use.

Huge decision ahead

The Supreme Court's response to these arguments promises to be most important. Their ruling on the appropriate relationship between the federal and provincial governments with respect to health will be released just as the two levels of government begin renegotiating the federal-provincial health care funding agreement, the Canada Health Transfer, which is due to expire in 2014.

This agreement is the means by which the federal government transfers money to provincial governments to help pay for health care. However, to qualify for the cash, provinces must meet the criteria and conditions laid out in the Canada Health Act. Notably, one of these conditions is accessibility.

Like its ruling on the relationship between provincial jurisdiction over health and federal jurisdiction over criminal law, the Court's decision on the extent of Charter protection enjoyed by Insite users will be significant, both in regard to the case itself, as well as for a number of other future Charter health rights cases.

Dr. Day is watching

In one such case, soon to be heard in British Columbia, Dr. Brian Day and the Canadian Independent Medical Clinics Association, a lobbying group, are challenging the constitutionality of B.C.'s Medicare Protection Act.

Day, the former president of the Canadian Medical Association, claims that the Medicare Protection Act infringes section 7 of the Charter where it prohibits both the private delivery of health care services, which are benefits under the public system, and private insurance for such treatment. As part of his argument, he will attempt to prove that the waiting lists systemic to B.C.'s public health system infringe upon the Charter rights of British Columbians.

The case is a follow on the 2005 Chaoulli v. Quebec decision of the Supreme Court of Canada. In Chaoulli, the Court held that Quebec's prohibition of private health insurance -- for services covered under the public system -- was unconstitutional. However, the justices of the Court split, 3-3-1; three justices ruling the ban on private insurance was contrary to the Charter, three ruling that it was not, and one deciding on the basis of the Quebec Charter, and not the Canadian Charter.

The Insite case will likely replace Chaoulli as the leading Charter health rights case, and become the precedent on which Dr. Day argues that B.C.'s health insurance system is unconstitutional.

For instance, the Court could rule that the prohibition against drug possession constitutes a deprivation of Insite users' section 7 Charter rights, because it poses an unjustifiable infringement on their life and security by denying access to health care. Based on this reasoning, Day will argue that waiting lists, when coupled with the ban on private delivery of health care, similarly amount to a denial of access.

On the other hand, it could rule that it is not appropriate for judges to intrude upon matters of health care policy. Like three of the seven justices in Chaoulli, such a position would invoke judicial deference to Parliament's decisions about health care. This result could be a deathblow to Dr. Day's arguments, lending credence to the view that in matters of health and health care, the will of the legislature trumps individual assertions of rights.

Expect a divisive ruling

In all likelihood, the members of the Court will divide in a number of ways. It's also possible that some justices find the federalism arguments sufficient to end the case, and abstain from ruling on the Charter arguments completely.

The Insite case, like Chaoulli before it, may elicit multiple sets of reasonings, penned by a number of justices, further muddying the waters of health rights and the Charter. Another wrinkle is the recent announcement of the impending retirement of Supreme Court Justices Charron and Binnie, released the day following the Insite hearing.

What is clear is that whatever the conclusions of the Supreme Court, and the manner by which they reach such conclusions, Insite promises to be at the forefront of the minds of policy makers and the public for years to come.