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Clean Switch:The Case for Prison-based Needle and Syringe Programs

University of WinnipegNovember 23, 2009

Richard Elliott & Sandra Ka Hon ChuCanadian HIV/AIDS Legal Network

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About the Canadian HIV/AIDS Legal Network

The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through

research and analysis advocacy and litigation public education community mobilization.

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HIV and HCV prevalence in federal prisons (sentences 2+ years): Canada

HIV prevalence in Canadian population as a whole: est. 0.2% as of Dec 2007: 1.84% of all federal prisoners known to be HIV+ roughly 10x higher than population as whole

HCV prevalence in Canadian population as a whole: est. 0.8% as of Dec 2006: 27.6% HCV prevalence more than 30x higher than population as whole

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Risk behaviours in prisons: injecting

High percentage of people inject drugs while incarcerated:

~80% of people in federal institutions identified upon admission as having a substance use problem connected to criminal activity (CSC: Grant et al., 2003)

PASAN study of women in federal prisons (2003): 19% reported injecting drugs while in prison

CSC National Inmate Survey (1995): 11% of men in prison surveyed reported injecting drugs in prison, and 41% of these reported that equipment was either not clean or they didn’t know whether it was clean at time of use

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First-person testimony

• 50 interviews in 2008/09 in B.C., Alberta, Manitoba, Ontario, Quebec, New Brunswick and Nova Scotia

• (double-sworn) affidavits and some unsworn testimonials• Key themes

histories of abuse early initiation of drug use drug use a key factor in incarceration availability of drugs in prisons little or no access to sterile injection equipment high-risk injection practices, including sharing of equipment need for and acceptability of sterile injection equipment

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Prison NSPs: global picture

As of November 2009, PNSPs have been introduced in more than 60 prisons in at least 10 countries:

Switzerland Germany

Spain Luxembourg

Moldova Iran

Portugal Romania

Kyrgyzstan Armenia

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Prison NSPs: global picture

Evaluations of PNSPs have revealed:

• PNSPs are feasible in a wide range of prison settings, and have effectively employed different methods of needle distribution;

• providing clean needles and syringes is readily accepted by people who inject drugs in prisons;

• an improvement in the health of incarcerated people; • in the prisons whose evaluation included blood testing, there

were no new cases of HIV or HCV infection, and a significant reduction of syringe sharing;

• no increase in drug use or injecting, and • needles are not used as weapons.

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PNSPs: domestic support

Implementation of prison-based NSPs also supported or recommended by:

Prisoners’ HIV/AIDS Support & Action Network (1992) CSC’s Expert Committee on AIDS in Prisons (1994) Canadian HIV/AIDS Legal Network (1996, 2002, 2004/06, 2008) Health Canada Task Force on HIV/AIDS and Injection Drug Use (1997) CSC’s Study Group on Needle Exchange Programs (1999) Canadian Human Rights Commission (2003) Ontario Medical Association (2004) Correctional Investigator of Canada (2004) Canadian Medical Association (2005) Canadian Centre on Substance Abuse (2005) Public Health Agency of Canada (2006)

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Prison-based NSPs: guiding principles

Key principle 1: principle of retaining all rights

People in prison retain all human rights except those necessarily removed or restricted as consequence of imprisonment

Key principle 2: principle of equivalence

People in prison should have access to standard of health care equivalent to that available outside prisons

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Corrections and Conditional Release Act (CCRA)

• CSC must carry out sentences “through the safe and humane custody and supervision of offenders” (s. 3)

• CSC must “take all reasonable steps to ensure that penitentiaries… are safe, healthful and free of practices that undermine a person’s sense of personal dignity” (s. 70)

• Principle of retaining all rights (s. 4)

• Principle of equivalence in health care services reflected (“Health care “shall conform to professionally accepted standards” (s. 86) and “in keeping with community practice” (CD 800)

• Harm reduction measures recognized as necessary (CDs 821, 821-2)

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Charter

Section 7: life, liberty and security of the person, and the right not to be deprived thereof except in accordance with principles of fundamental justice

Section 15: equality rights

Section 12: freedom from torture or other cruel and unusual treatment or punishment

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Charter s. 7 Right to life, liberty and security of the person

Concerned with state activity which can cause death

Criminal law that impedes access to health services for people who use drugs is unconstitutional because

“…it prevents healthier and safer injection where the risk of mortality resulting from overdose can be managed, and forces the user who is ill from addiction to resort to unhealthy and unsafe injection in an environment where there is a significant and measurable risk of morbidity or death.”

- PHS Community Services Society v. AG Canada (BCSC, 2008)

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Charter s. 7 Right to life, liberty and security of the person

S. 7 has been applied to invalidate conditions imposed by criminal justice system that interfere with a person’s access to health care services, e.g.:

Prohibition on marijuana to alleviate pain a violation of individual’s liberty to choose a medically suitable course of treatment: Parker (Ont CA, 2000)

Blanket imposition of a “red zone” as a condition of probation for all people convicted of drug offences violated individual liberty because individuals:

“are effectively forbidden from accessing necessary health and other social services… [I]t is apparent that a lot of people who need The Needle Exchange’s services are either not getting them or are violating the ‘red zone’ condition to do so.”

-R. v. Reid (BC Provincial Court, 1999)

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Charter s. 7 Right to life, liberty and security of the person

Protects individuals’ physical and psychological integrity

Violations of this right include: State action that increases “anxiety as to state of his health” and “is

likely to make illness worse by depriving him of access to adequate medical care”: Collin v. Lussier (FCTD 1983); Singh (SCC, 1985)

Delays in access to health services that materially increase risks to health: Morgentaler (SCC, 1988 re access to abortion services)

Preventing access to treatment by threat of criminal sanction: Parker (Ont CA, 2000)

Denial of timely health care for condition that is clinically significant to current and future health: Chaoulli (SCC, 2005)

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Charter s. 15 Right to equality

Intended to prevent discrimination, promote equality and remedy disadvantage: Andrews (SCC, 1989), Law (SCC, 1999)

3 elements to a violation of this right:

differential treatment or failure to consider prior disadvantage

based on a ground either listed in Charter (e.g., disability) or similar ground (“enumerated or analogous ground”)

constitutes “discrimination”

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Charter s. 15 Right to equality

Differential treatment

NSPs operate as health services in communities across Canada

“once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner”: Eldridge (SCC, 1997)

government not allowed to single out a disadvantaged group for inferior treatment: Auton (SCC, 2004)

where this happens, government must “take positive action, for example, by extending the scope of a benefit to a previously excluded class of persons”: Eldridge (SCC, 1997)

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Charter s. 15 Right to equality

Listed or similar ground

relevant grounds already listed in Charter, e.g. sex, race, disability

people in prison an “analogous” ground on which discrimination is prohibited?

“Federally sentenced offenders have a right to treatment that is consistent with the Canadian Human Rights Act [legal protection against discrimination].”

- Canadian Human Rights Commission, 2003

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Charter s. 15 Right to equality

Listed or similar ground “status of being a prisoner does not constitute an analogous

ground”• Sauvé v. Canada (SCC minority, 2002) [prisoners’ voting rights]• several Federal Court and Tax Court cases• but no SCC majority or provincial appellate courts say this

Reasoning in Sauvé is flawed:• contra to principles of retaining all rights and equivalence

• ignores that people in prison manifest factors (e.g. social marginalization, poverty, etc.) to be considered in determining an analogous ground under s. 15

• ignores multiple intersecting grounds of disadvantage reflected in who is harmed by denial of prison NSPs

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Charter s. 15 Right to equality

Discrimination

The law “discriminates” if it imposes burden or withholds a benefitin manner which either

reflects stereotypical application of presumed group or personal characteristics, or

otherwise perpetuates or promotes view that individual is less capable or worthy of recognition or value as human being or member of Canadian society

- Law v. Canada (SCC, 1999)

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Charter s. 12 Right not to be subjected to cruel and unusual treatment or punishment

3 elements:

“grossly disproportionate” for the prisoner, meaning Canadians would find it abhorrent or intolerable

so excessive as to “outrage standards of decency”

having regard to all contextual factors, including: personal characteristics of person in prison gravity and particular circumstances of offence actual effect on individual existence of valid alternatives to treatment imposed

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Charter s. 12 Right not to be subjected to cruel and unusual treatment or punishment

Various conditions of incarceration have been held to violate s. 12 (e.g., lobotomization, castration, limitations on visitation and access to open-air exercise, methods of searching prisoners)

Failure to provide adequate medical care for detained people with HIV violates s. 12: R. v. Downey (Ont District Court, 1989)

Segregation of prisoner with mental illness would violate s. 12 because, in the circumstances, it would contribute to deterioration of health: R. v. Rathburn (Yukon Territorial Court, 2004)

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Charter s. 12 Right not to be subjected to cruel and unusual treatment or punishment

denying prisoners’ access to equivalent health services is not a legitimate objective of imprisonment → grossly disproportionate

determining what violates “public standards of decency” informed by principles of retaining all rights and of equivalence, and fact that governments support and fund NSPs outside prisons

contextual factors include extent of marginalization and vulnerability of people in prison, effects of denying NSPs to them, and available alternative of implementing NSPs consistent with CCRA and int’l human rights principles

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Charter s. 1Even if Charter violations have been established, government can try to prove it can justify these

But:

Prohibiting NSPs in prison does not relate to “pressing and substantial” government concerns of preventing prison drug use and associated harms, and protecting prison safety, but undermines these objectives

More than minimal impairment of prisoners’ rights, given evidence of harms and risks of harms (e.g. HIV/HCV infection)

Denying NSPs in prison not only ineffective in achieving government objectives but harmful → based on evidence, harms to prisoners considerably outweigh supposed “benefits” (which are not supported by evidence)

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Acknowledgments

• Eric Boschetti, Julie Shugarman, Ellen Silver, Sarah Kushner

• Public Health Agency of Canada

• Levi Strauss Foundation

• For more information,

see www.aidslaw.ca/prisons