Equitable Access to a Quasi-Constitutionally Protected Facility

Nick Pineau

By Nicholas Pineau

My summer spent with the HIV Legal Network has radically deepened my understanding of harm reduction and human rights in Canada. While my first year of law school discussed the subject in various classes (such as in the context of physician-assisted suicide in the Carter case), I have enjoyed getting to learn more about supervised consumption sites (SCS) during my internship. SCS were quasi-constitutionally protected by the Supreme Court of Canada in their 2011 Insite decision. The Court held that such sites save lives, and the Minister of Health arbitrarily denying a Vancouver site the requisite exemption from the Controlled Drugs and Substances Act ran afoul of the right to life, liberty, and security of the person of individuals who access the site. While this decision deepened acceptance of harm reduction practices in Canada, there remains much work to be done to ensure equitable access to SCS.

One issue I have been working on during my internship is the practice of assisted injection, where individuals require assistance to properly inject substances at SCS. This practice is currently not allowed at SCS in Canada, creating a barrier to access for certain marginalized groups. Notably, it is often women (who often inject with intimate partners) and persons with disabilities who struggle to inject on their own. This limits access to a life-saving facility, and one is left to question whether such a restriction would run afoul of Section 7 of the Charter if a new decision à la Insite were to come out today.

One barrier erected by the Canadian government in its restriction on assisted injection is that it leaves the door open to numerous forms of liability for nurses in Canada if they were to assist SCS clients. A recent report I helped draft for the Network focused on some of these considerations—what are the potential criminal, civil, and professional body liabilities that could arise if a nurse were to assist with injection, and something were to go wrong?

This report allowed me to sharpen my legal research, reasoning, and writing skills. Because there is limited jurisprudence on the subject, I had to be creative in my utilization of available Canadian law. As an example, to answer the question of whether a nurse could be found guilty of manslaughter if a client were to die after being assisted with injection, I relied on the 2019 case R v Javanmardi, where an Ontario naturopathic doctor was not held liable for manslaughter for injecting an individual with a naturopathic substance. Justice Abella, writing the majority opinion, held that the act of injecting by a properly qualified professional was not dangerous enough in and of itself to warrant a finding of the requisite mens rea to convict someone of manslaughter. While the Javanmardi case is not a direct parallel to assisted injection at SCS, it offers an analogous reason to believe that the Court may see assisted injection as a life-saving harm reduction practice that increases equitable access to SCS, rather than a criminal act.

Another interesting consideration for the practice of assisted injection is how ‘safe supply’ impacts the potential liability nurses may face. As a result of the ‘dual pandemics’ of COVID-19 and opioid overdoses in Canada, the Canadian government authorized physician-prescribed opioids to limit the potential for overdose from the toxic street supply. The fact that such opioids are prescribed may limit the potential liability nurses may face for assisting with injection. The strength and non-toxicity of the substances are known before injecting, and if the alternative is that individuals inject on the street—where there is a risk of disease transmission from needle sharing or risk of arrest from police surveillance—then it becomes difficult to understand why assisted injection is restricted at SCS. A harm reduction perspective would contend that the possibility of assisted injection limits the potentially deleterious impact of leaving women and people with disabilities to inject on the street, with no one potentially available to intervene in the event of an overdose.

Overall, my summer at the HIV Legal Network has been illuminating, and I have loved seeing the issues we learn about in law school from a more nuanced and deeper perspective. While most of us would celebrate the Supreme Court of Canada’s acceptance of SCS in its 2011 decision, we never learn about what came after, and how such sites are not perfect solutions on their own. Political activism and advocacy remain necessary to ensure equitable access to government-sanctioned harm reduction services, and to fully realize the human rights of those living with or affected by HIV.

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