Strange as it may sound, British Columbia Supreme Court Justice Ian Pitfield's decision concerning Insite could spell the end of harm reduction as a separate modality for addressing substance abuse in Vancouver. Stranger still, that could prove beneficial for both the city and for people struggling with drug addiction.
Pitfield held that the possession and trafficking sections of the Controlled Drugs and Substances Act (CDSA) are unjustifiable infringements of Insite users' rights under s. 7 of the Charter of Rights and Freedoms, which guarantees "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
In coming to this conclusion, Pitfield noted that Insite is a form of health care: "While users do not use Insite to directly treat their addiction, they receive services and assistance at Insite which reduce the risk of overdose that is a feature of their illness, they avoid the risk of being infected or affecting others by injection, and they gain access to counselling and consultation that may lead to abstinence and rehabilitation. All of this is health care."
That is an extremely important statement, and I will return to it shortly.
Pitfield continued by noting that by prohibiting the injection of controlled drugs at Insite, the CDSA effectively prevents addicts from accessing this health care service and managing their addictions, and consequently jeopardizes their well-being and, ultimately, their lives.
Furthermore, while the federal government argued that the law is designed to prevent the harms associated with drug use, Pitfield concluded that the law, by being insensitive to the nature of addiction as an illness, "contributes to the very harm it was meant to prevent" and is therefore not in accord with the principles of fundamental justice.
Pitfield consequently declared the law of no force and effect, but gave the federal government a year to remedy the defects.
The Conservatives' reaction to the judgment was disappointing, if predictable. Health Minister Tony Clement first said the government "disagreed" with the decision, and then told the House of Commons that he would ask Justice Minister Rob Nicholson to appeal the ruling.
The Conservatives are free to do so, of course, but one must wonder why they wish to spend millions of tax dollars fighting this legal battle when the money could be better spent on addiction treatment. After all, Pitfield's decision doesn't require them to do anything, other than bring their laws into conformity with the Constitution.
It doesn't, as some people seem to think, create a "positive" right to health care, or require governments to establish supervised injection facilities. The ruling only forestalls the government from preventing highly vulnerable people from accessing health care services that the provinces have freely chosen to provide.
And this brings me back to Pitfield's comments about health care and the concept of harm reduction. Given the novelty of measures like Insite, harm reduction has received a grossly disproportionate amount of publicity. This has led many people to believe that of Vancouver's planned four pillar strategy for addressing substance abuse -- prevention, treatment, enforcement and harm reduction -- only one pillar really exists: Harm reduction.
Now, this is both true and false. There is and has always been only one pillar, but that pillar is enforcement, which consumes the vast majority of federal funds -- upwards of 90 per cent, according to the auditor-general -- directed at combating illicit drug use. Harm reduction may grab the headlines, but it receives little money.
Even those who are aware that harm reduction is a drug pillar orphan often tend to think of it as different in kind from the other pillars, and certainly as different from treatment. This is a natural result of the four pillars strategy, which causes some people to view the pillars as separate, discrete modalities.
To be sure, Vancouver drug policy coordinator and four pillars author Don McPherson has always stressed that the pillars must function as a unit -- that there must be some level of integration of the services that each pillar provides.
And there has been some limited success at integrating the pillars -- most notably, perhaps, the building that houses Insite now also includes Onsite, a detoxification unit for those motivated to stop using drugs. This represents an integration of services and the people providing those services, and also involves physical integration as Insite and Onsite exist in the same building.
Despite these positive developments in integrating modalities, there has been much less success in integrating the concepts that guide our thinking on the issue, particularly the concepts of treatment and harm reduction. In fact, by highlighting these as separate concepts, treatment and harm reduction are often defined in opposition to each other, and hence it's no surprise that some people see the modalities as opposing each other too.
Yet the concepts bleed into each other, and into the concept of prevention, in both theory and fact. For example, we know that attendance at Insite is associated with increased uptake of detoxification and addiction treatment, so it's clear that a harm reduction measure can lead to treatment.
But there is more to it than that. It's often not possible to even define where harm reduction ends and treatment begins. The problem here is that "treatment" is rarely defined, but there is often a suppressed premise in arguments against harm reduction that treatment begins and ends with abstinence -- with "curing" the disease.
Yet modern medicine recognizes that some diseases are chronic and will need lifelong treatment. And that treatment includes various interventions that improve the health of patients while failing to cure them.
If we similarly define "addiction treatment" as anything that improves the health of the addict, then harm reduction measures, including Insite, would fall under the rubric of treatment.
The United Nations Office on Drugs and Crime, which has not always been supportive of harm reduction, noted as much in a 2002 report: If "the purpose of treatment is not only to cure a pathology, but also to reduce the suffering associated with it (like in severe pain-management), then reducing IV drug abusers' exposure to pathogen agents often associated with their abuse patterns (like those causing HIV-AIDS, or Hepatitis B) should perhaps be considered as treatment."
The mention of pathogens is important because it reveals that there is no sharp distinction between harm reduction and prevention, either. For if Insite reduces the transmission of blood-borne infections, then it is acting as a powerful agent in preventing the spread of disease. Treatment can also act as a form of prevention, as highly active anti-retroviral therapy (HAART) renders HIV-AIDS patients less infectious and thereby helps prevent transmission of the virus.
All of this suggests that by treating prevention, treatment and harm reduction as separate concepts, we are making false distinctions. It is now time to move beyond this way of thinking, and to fully integrate the concepts we use in addressing substance abuse.
And this is why Justice Pitfield's judgment is so important. While Pitfield did not declare Insite a form of treatment because it didn't involve "using controlled substances as an antidote for an illness," his recognition that Insite is a form of health care should helps us to move from four pillars to just one -- that which improves the health of Canada's most vulnerable citizens.
We are careful not to duplicate the efforts of other organizations, and as a grassroots coalition of prisoners and social reformers, our resources (time and money) are limited. The vast expertise and scope of the various drug reform organizations will enable you to stay informed on the ever-changing, many-faceted aspects of the movement. Our colleagues in reform also give the latest drug war news. Please check their websites often.