Right Decision, Wrong Reasons

Insite is saved for now, but proponents of the safe injection site will have to do more than emphasize scientific studies if they want to make real headway.

Last week, the B.C. Court of Appeal rendered a decision in the ongoing legal battle over Insite, the safe injection facility in Vancouver. The court ruled that Insite could continue to operate in Vancouver – the right decision, though, importantly, made for the wrong reasons.

For the most part, the court sidestepped the Charter of Rights arguments and decided the case on the basis of the division of powers between Ottawa and the provinces. In ruling with the province, it accepted the argument that the operation of a safe injection facility is a matter of delivering health services and therefore under provincial jurisdiction, rather than a criminal law issue under the jurisdiction of the Government of Canada.

From this perspective, the debate over whether or not a safe injection facility should operate in Vancouver, or anywhere else in Canada for that matter, becomes a question of constitutional law. In fact, the ongoing debate surrounding Insite can be framed in three ways, of which the division of powers is arguably the least important.

At other times, in other places, provincial governments, notably Quebec, have gone to court to defend their jurisdiction. This is not one of those times. The Government of British Columbia’s overriding goal is not to defend provincial jurisdiction over the delivery of health services, even if that’s what the B.C. Court of Appeal based its judgment on.

The second, more significant way to understand the controversy over safe injection sites is one that focuses on health and the importance of evidence-based public policy. Proponents and defenders of Insite argue that, given the stark realities of illegal drug use, harm reduction is an achievable and noble objective. Framed in this way, defending the right of the Government of British Columbia to allow safe injection sites to operate has little to do with the constitutional jurisdiction and everything to do with promoting public health.

Proponents of harm reduction focus on the short-term needs of drug users. This approach accepts addiction as an unfortunate reality and argues that the government has an obligation to help addicts avoid the myriad of risks, sometimes fatal, associated with dirty needles. What matters then are the numerous high quality scientific studies that demonstrate the benefits of harm reduction in general and Insite in particular.

Moreover, proponents of an evidence-based public health approach to illegal drug use are deeply concerned that the efforts of the Conservative government to close Insite are based on "ideology" and "politics."

Which bring us to the third framing of the problem. There is no doubt that the Conservative government sees the fight over Insite as a wedge issue that they can use to differentiate themselves from the Liberals and New Democrats. Opposing safe injection sites plays well with the Conservative base, at least in the suburbs of Vancouver.

However, those who are opposed to harm reduction strategies are motivated by more than just partisan political considerations. Framed as an issue of respect for the law, what matters is the overall effect of illegal drug use. Opponents of Insite are concerned about what addicts do after they leave the facility – the crimes they commit for drug money &nadash; and the overall impact of drug use on not just the immediate neighborhood but the community in general. The federal government, unlike the Government of British Columbia, appears to be particularly sensitive to the voices of those who, rightly or wrongly, feel uneasy, if not threatened, by what they see as aiding and abetting addicts who are breaking the law.

The bottom line is that these last two frames are incommensurate and irreconcilable. If one side says it’s about reducing the potential harm to drug users and the other says it’s about the impact on the broader community and the society at large, it is difficult to imagine compromise. In other words, the controversy over Insite is not a matter of the division of powers; it is a matter of conflicting values.

Proponents of harm reduction and facilities like Insite (and I count myself among them) are not going to make much headway if they continue to emphasize the importance of reputable scientific studies. It is the nature of science that the evidence is always contestable. This opens the door to claims that "more science" is needed and that, in the meantime, the safe injection sites should be closed. Rather, the best way to defend Insite is to emphasize the science while also conceding that making the case for harm reduction is also a question of values.

This is why it is unfortunate that the B.C. Court of Appeal chose to base its decision on the constitutional division of powers and not the Charter of Rights and Freedoms. Doing the latter would have taken us to the heart of the matter – how best to balance the interests of society at large and the very real and pressing need to protect drug users from further harm.