When Insite North America’s first lawful supervised drug consumption site, opened in Vancouver in September 2003, it was an experiment in intergovernmental cooperation. The experiment succeeded until a change in government at the federal level in 2006 threatened to bring it to a close. 

Fearing that receding federal cooperation would force Insite to shutter, legal actions were brought to keep the facility open. The actions were hard – even bitterly – fought, but they succeeded. Insite remained open. 

The current fentanyl overdose crisis started in the wake of the decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (“Insite”).

The tenor of governmental response to the fentanyl overdose crisis is quite different from the pitched battle over Insite. Gone are the days when a Minister of Health might question whether supervised injection is health care, or challenge the ethics of physicians who practise harm reduction, as a former Minister of Health did in a speech to the Canadian Medical Association in 2008. 

Did the Insite case play a role in this change? The following are three observations.

1. Fact-finding matters

A key element of the opposition to Insite was the idea that drug use is a choice: people who habitually use addictive drugs can choose not to use them. The trial court in Insite found differently. Justice Pitfield reached an “incontrovertible” conclusion: addiction is an illness, marked by “the continuing need or craving to consume the substance to which the addiction relates.”

With this finding of fact, debate about an essential feature of addiction withered. The law’s confirmation of what medicine had already concluded helped frame the starting point of the state response to the fentanyl overdose crisis: the question is not whether people addicted to drugs will use them, but when and how. 

So, what lesson does Insite teach? The law’s imprimatur on questions of fact is meaningful in matters of social justice.

2. The law matters

Insite confirmed that the state’s response to drug use is not simply a policy question. Instead, a law or government action that puts a person’s life or health at risk by blocking access to health care will engage s. 7 Charter rights. 

From a social justice point of view, the restatement of this principle, first articulated in R. v. Morgentaler, [1988] 1 S.C.R. 30, is of central importance. By confirming that state response to drug use is a matter of legal concern, Insite drew people who usually find themselves at the law’s edges within its protection, and decisively extended the benefits of the rule of law to people more traditionally seen as law-breakers. This is a powerful change in perspective.

3. The courts cannot fix everything

While litigation can be a powerful tool to advance social justice, Insite also shows some of its limits: it is up to governments, not courts, to respond to the crises of the day. The courts’ job is to ensure that state action is constitutionally valid. 

As the current fentanyl overdose crisis has shown, governments will wrangle with each other over appropriate responses, their timing and their ramifications. For the most part, this is beyond the courts’ ken. 

Lawyers, not surprisingly, like legal fixes. But reflecting on the Insite case from the vantage point of the current overdose crisis serves as a reminder that social justice must ultimately be realized through governance. We, as lawyers, must keep our eyes first and foremost on that process.