The following statement is issued by the Canadian HIV/AIDS Legal Network. Comments can be attributed to Sandra Ka Hon Chu, Director of Research and Advocacy.
Court suggests denying sterile injection equipment to prisoners may breach Charter rights, but declines to find that flaws in current federal prison needle exchange program make it unconstitutional
May 1, 2020 — In a disappointing decision, the Ontario Superior Court of Justice today declined to find that the prison needle exchange program (PNEP) currently being implemented by the Correctional Service of Canada (CSC) breaches prisoners’ constitutional rights by failing to meet professionally accepted standards for such health services. The court said such a conclusion would be premature because the roll-out of the current program is only partially complete and the program continues to evolve.
The court did acknowledge that when we launched our case eight years ago — when CSC had a complete prohibition on possession of sterile injection equipment by prisoners who use drugs — there were “compelling constitutional arguments” supporting access to sterile injection equipment as “essential health care,” which CSC is legally required to provide. Regrettably, the judge who heard the case did not provide a remedy to address this denial of sterile injection equipment as a violation of prisoners’ Charter rights, despite this being a fundamental issue in the case from the outset. This denial is also an ongoing problem in at least 75% of federal prisons where the PNEP is not yet available.
This proceeding against the CSC was started in 2012 by the Canadian HIV/AIDS Legal Network, along with former prisoner Steve Simons, Prisoners with HIV/AIDS Support Action Network (PASAN), CATIE and the Canadian Aboriginal AIDS Network (CAAN), challenging the federal government’s refusal to provide prisoners with effective — meaning easy and confidential — access to needle and syringe programs.
Our court case was the final catalyst for CSC to introduce a PNEP, which it had refused to do under successive governments despite years of recommendations, including from its own expert advisory committees, and evidence from the Public Health Agency of Canada. In May 2018, pressed by our years-long court proceeding, the Public Safety Minister committed CSC to implement this program in all federal prisons. Our ongoing advocacy also led CSC to make some changes from its original model to reduce certain barriers to participation. As today’s decision recognizes, “The initial application, filed in 2012, raised important prison and public health issues and may well have prompted the CSC to implement the [program]” and “resulted in certain positive changes in the design or operation of the [program].”
Despite these changes, CSC’s current program remains seriously flawed, because it violates prisoners’ confidentiality in various ways, meaning many prisoners do not and will not trust it. In his recently released 2019 report, the Correctional Investigator of Canada criticized the program’s implementation, recommending that CSC revisit the program and participation criteria with the aim of “building confidence and trust, and look to international examples in how to modify the program to enhance participation and effectiveness.” CSC has also failed to meet its own promised timelines; the roll-out to date is woefully inadequate.
Steve Simons, our co-applicant in the case, is a former prisoner who was infected with hepatitis C in a federal prison when a fellow prisoner used his injection equipment without his knowledge. Reacting to today’s decision, Steve says, “When I was inside, I was shocked to see people injecting themselves with used, makeshift rigs and sharing those with others. It was so unsafe. For years, CSC has failed to provide adequate access to proven harm reduction programs. With this decision, I’m worried that prisoners will continue to lack access to injection equipment, which means people will continue to share needles and rigs.”
Today’s decision is a setback for prisoners’ health, and also for public health. Without a program that provides easy, confidential access to sterile injection equipment, most prisoners in Canada are still at high and unnecessary risk of contracting HIV, hepatitis C, and other bloodborne infections, which will follow them when they return to their communities. Prisoners are also at risk of other life-threatening harms from shared and re-used injection equipment.
We urge the Government of Canada to complete implementation of the PNEP in all federal prisons without further delay, making it available to all prisoners, and to remove the features of the program that unnecessarily violate prisoners’ confidentiality and thereby make the program largely inaccessible and ineffective. This would reduce needle-sharing and the consequent spread of needless infections. Lives would be saved.
The fight for prisoners’ right to health is not over. We will consider our next steps, including a possible appeal of this decision. Outside the courts, the Canadian HIV/AIDS Legal Network will keep advocating to ensure Canada’s PNEP is rolled out nation-wide, and made effective, accessible, and confidential.
We have legal and policy experts available for interview. Please get in touch with Emma Riach (contact details below) to arrange this.
Click here for a policy brief and a fact sheet dispelling some of the common myths about prison needle and syringe programs. Click here for the Annual Report of the Office of the Correctional Investigator which details issues with how the current PNEP has been implemented.
You can read more about this case at www.prisonhealthnow.ca and www.aidslaw.ca/prisons.
About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with, at risk of, or affected by HIV or AIDS, in Canada and internationally, through research and analysis, litigation and other advocacy, public education, and community mobilization. We have studied prison needle and syringe programs for more than 20 years and are one of the co-applicants in a lawsuit launched against the Government of Canada arguing that the denial of prisoners’ access to this health service is a violation of their constitutional rights.
Emma Riach, Communications and Campaigns Officer
Mobile: +1 437 985 6544