by David Yin
Two weeks ago, the Supreme Court of Canada ordered the Canadian Government to allow Insite, a narcotics injection clinic, to remain open. Insite was an experimental clinic created in 2003 by the provincial government of British Columbia and the city of Vancouver, and was granted an exemption from the Controlled Drugs and Substances Act by the then-Liberal government in Ottawa. It operated with the blessing of Vancouver city police, the Canadian Medical Association, and area businesses.
Insite is not a place to purchase drugs – addicts come with narcotics (heroin, morphine, cocaine, methamphetamine, etc.) obtained elsewhere. Nor is it a place where nurses or physicians will personally inject potentially harmful substances into drug users. Insite is, however, a clinic at which citizens with chemical dependencies are given clean equipment, and observation post-injection for possible overdose–the clinic has seen over 1400 overdoses since 2004, but has never experienced a fatality. Insite also targets the cyclic psychosocial harms and causes of addiction. It provides referrals to community clinics, hospitals, mental health facilities, shelters, housing, addiction counseling, drug recovery services, and even an on-site detox center.
While this decision in Canada v. PHS Community Services allows Canada to retain its membership in a league of six European countries and Australia in operating drug injection clinics, Canada’s case remains unique because their clinics will exist without the support of the national government. The Supreme Court carved out pockets of decriminalization by engaging Section 7 of the Canadian Charter of Rights: “the right to life, liberty and security of the person”:
Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.
Across the world’s longest undefended border, however, the constitutional case for an American drug injection clinic is not so clear. The Canadian Court found that despite the overwhelming support of local and provincial authorities, they did not have a claim under “interjurisdictional immunity” (Canadian federalism) to ignore a federal law. Instead of a provinces’-rights interest protecting Insite, Canada’s Court found there was a personal liberty interest. If a state health department in the United States decided to open a drug-injection clinic, it would likely also fail to convince a judge that there was a states’ rights claim under the U.S. Constitution. In Gonzales v. Raich, the United States Supreme Court held that Congress’ Commerce Clause power and federal drug laws could override California’s medical marijuana law. That California law allowed persons such as Angel Raich, a victim of brain cancer who was refractory or allergic to every other pain medication, to use marijuana, in controlled amounts, that had been grown by volunteers using soil and equipment originating wholly intrastate. Her physician testified that withholding this last effective pain medication would “cause Raich excruciating pain and could very well prove fatal.”
On remand to the 9th Circuit in 2007, Raich brought an alternative theory of substantive due process: she could not be deprived of “life, liberty, or property, without due process of law” under the 5th and 9th Amendments. The 9th Circuit disagreed: “We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is ‘fundamental’ and ‘implicit in the concept of ordered liberty.’”
Despite case law suggesting drug injection clinics would be afforded no constitutional protection in the United States, it is hard to ignore the close similarities in the constitutional language of two countries grown out of the same common law traditions. Canada’s Charter seeks to protect “life, liberty and security” while the U.S. Constitution defends “life, liberty, or property”. Canadian citizens’ rights may not be abridged unless in accordance with “fundamental justice,” where in the U.S. we call it “due process.” Canadian fundamental justice means that laws obstructing life and liberty cannot be “arbitrary and grossly disproportionate”. And in the U.S., Justice Harlan once described unnamed liberties from substantive due process:
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. (emphasis added)
If Canada’s Supreme Court can find that a prohibition on drug-injection clinics would be arbitrary and grossly disproportionate, in light of overwhelming evidence of the clear benefits and absence of harms of such clinics, then perhaps an American court can also shed its misgivings and conclude that closing American drug injection clinics would be arbitrary and purposeless as well. If drug injection clinics come to the U.S., we can only hope that the courts can move beyond a failed punitive drug regime, and uphold the rights of drug addicts to receive medical treatment and social assistance.