Prisoners' Constitutional Right to Clean Needles and Bleach
Despite evidence that sharing of contaminated needles in order to inject intravenous drugs is frequent among prisoners, the Correctional Service of Canada (CSC) and all provincial prison systems still deny prisoners access to clean needles; many systems even deny access to bleach. Can the argument be made that denying prisoners access to clean needles and/or bleach is a violation of their constitutional rights?
Arguably, three sections of the Charter may provide a home for prisoners' right to protection, and might be used to seek the implementation of needle exchanges and distribution of bleach kits in prisons.
Section 7: Rights to Life and Security of the Person
Decisions in two major cases by the Supreme Court of Canada suggest that prisoners' right to protect against HIV infection could be framed as an aspect of the right to "security of the person" (under s 7 of the Charter, "[e]veryone has 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 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, Wilson J held that s 7 encompasses freedom from the threat of physical punishment or suffering as well as freedom from the punishment itself, and cited with approval the finding in Collin v Lussier, [1983] 1 FC 218 (TD) that security of the person is infringed not only by an actual impairment of health but also by a likelihood that health would be impaired.
In R v Morgentaler, [1988] 1 SCR 30, she held that state interference with bodily integrity offends the right to security of the person, and Dickson CJC also ruled that s 7 "extends to state-imposed limitations upon the ability of persons to obtain beneficial medical treatment where those limitations do not adequately take into account the needs, priorities and aspirations of those persons." Beetz J concurred that s 7 is violated where such a limitation endangers a person's life or health.
In light of these cases, the argument could be made that the denial of access to clean needles and/or to bleach violates prisoners' security of the person by increasing the likelihood of HIV infection. (The violation of the right to life is simply an extension of this argument, given that HIV infection is held to be ultimately fatal.) Evidence would have to be advanced to establish the requisite link between the denial of needles and bleach and this increased risk; research demonstrating this link abounds.
Section 7 offers a "preventative" legal remedy. It may be invoked to prevent future harm resulting from state action (eg, future transmission among prisoners of HIV or other bloodborne diseases, such as hepatitis C). Granted, the decision in Operation Dismantle Inc v R (1988), 45 CCC (3d) 57 (SCC) establishes that s 7 does not impose a duty on the government to refrain from any act that might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. Yet Dickson J was careful to note that remedial action by the courts remains an option where "the link between the action and the future harm alleged" is capable of proof. Therefore, the success of this argument will depend heavily on the evidence presented to establish the relationship between IV drug use, needle-sharing and HIV transmission in prisons, and to establish that denying access to clean needles and bleach directly contributes to the risk of HIV infection.
Once the connection is established between the impugned state action and the increased risk of HIV infection, the next step will be to show that this infringement of the rights to life and security of the person is not "in accordance with the principles of fundamental justice." What exactly those principles are is rather unclear, although the Court said in the B.C. Motor Vehicle Reference, [1985] 2 SCR 486 that they "are to be found in the basic tenets of our legal system." If those principles are intended to promote the dignity and well-being of the individual and society – and presumably this is a fundamental purpose of constitutional rights such as liberty and security of the person – how could the state justify a policy that not only precludes people from protecting themselves against infection with a deadly virus, but in fact contributes to the likelihood of its spread? Could denying people the right to self-preservation be consonant with notions of "fundamental justice"?
Section 12: Cruel and Unusual Punishment
There is also an argument to be made that denying prisoners clean needles and/or bleach constitutes "cruel and unusual treatment or punishment" (under s 12 of the Charter, "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment"). According to the Supreme Court of Canada in Miller and Cockriell v The Queen, [1977] 2 SCR 680, a punishment violates s 12 if it is "so excessive as to outrage standards of decency." This test of "gross disproportionality" between the effect of a punishment and what would have been appropriate has been affirmed in subsequent cases.
In R v Smith, [1987] 1 SCR 1045, it was held that a punishment violates s 12 of the Charter if it either (a) "outrages the public conscience" or is "degrading to human dignity," or (b) goes beyond what is necessary to achieve a valid social aim, "having regard to the legitimate purposes of punishment and the adequacy of possible alternatives." In the subsequent case of R v Goltz (1991), 67 CCC (3d) 418 (SCC), the Court noted that the nature and conditions of a sentence, and not merely its duration, must be considered in determining whether it is cruel and unusual.
The case could be made that denying prisoners the right to protect themselves against HIV infection satisfies the test of "cruel and unusual": it is degrading to human dignity, it goes beyond what is necessary to achieve the social aim of reducing IV drug use, and it is not a legitimate purpose of punishment. Furthermore, research suggests that alternative approaches to dealing with IV drug use among prisoners, based on a harm-reduction model, are more rational and effective than a blanket denial of access to clean injection equipment. The prohibition appears even more excessive in light of the federal Corrections and Conditional Release Act, which states that the correctional system's operating premises include the protection of inmates, the safe and humane care of offenders, and the provision of programs to achieve these ends. The Act also affirms that offenders retain the rights and privileges enjoyed by all members of society, except for those necessarily restricted as a consequence of their sentence. Those on the outside can access needle exchange programs; why should denying prisoners access to such programs be a necessary consequence of imprisonment?
Section 15: Equality Rights
This last argument is closely related to a potential equality rights argument: does it constitute "discrimination" within the meaning of s 15 of the Charter to deny prisoners access to protective methods that those on the outside can access? Under s 15(1), "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." In order to succeed, it would have to be shown that the status of being incarcerated is a prohibited ground of discrimination analogous to those enumerated in s 15. The case law interpreting s 15 indicates that this would require showing that not only are prisoners treated differently than non-prisoners, but that this distinction imposes disadvantages on prisoners or denies them benefits available to others.
There is a distressing trend in recent decisions to limit the protection of s 15 only to "discrete and insular minorities" or to groups or individuals who can demonstrate some sort of stereotyping, vulnerability to prejudice, or historical disadvantage apart from the distinction being challenged. Such an interpretive approach in effect renders s 15 static, allowing the courts to address past discrimination but precluding the recognition of new target groups or new categories of discrimination. Such a result stands in opposition to numerous statements that the interpretation of s 15 must be "context-dependent" and that all Charter rights need to be interpreted generously and purposively.
However, there is still room to argue that these conditions are not necessary requirements for concluding that a distinction is "discriminatory" within the meaning of s 15, but merely "indicia of discrimination" (in the words of Wilson J in R v Turpin, [1989] 1 SCR 1296 at 1333) that assist in the interpretive task. Even if s 15 is interpreted narrowly so as to necessarily require evidence of historic disadvantage in order to find a given legal distinction "discriminatory," evidence could be put forward showing that prisoners do constitute such a group.
Section 1: The State's Justifications for Violating Prisoners' Charter Rights
If a breach of one of the above rights can be established, the state will seek to justify the prohibition on needles and bleach under s 1 of the Charter, most likely arguing that its goal is to prevent IV drug use in prisons and to protect the safety of correctional officers and inmates (according to s 1, the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society").
In order to rebut these claims, evidence will be needed to establish that there is no "rational connection" between the policy of prohibiting needles and bleach and the goal of preventing drug use (as required by the Supreme Court in R v Oakes (1986), 24 CCC (3d) 321). This evidence can be provided. First, studies indicate that, despite the lack of clean equipment, drug use continues among prisoners, and needle-sharing increases because of the shortage of injecting equipment. Second, implementing a needle-exchange program will not threaten the safety of guards: (1) If needles were exchanged one-for-one (one used against one sterile needle), there would not be a net increase in the number of needles in the prison population. In fact, such a needle-exchange program would likely improve correctional officers' safety, reducing their chances of suffering a needle-stick injury with a contaminated needle. (2) Even if provision of needles resulted in a net increase in the number of needles in the possession of inmates, rules could be established to safeguard staff safety, as demonstrated in the Swiss pilot project.[1]
Furthermore, it should be pointed out that denying prisoners access to clean needles and bleach may not satisfy the Oakes requirement that constitutional rights be impaired "as little as possible": placing captive persons at increased risk of HIV infection is hardly a minimal impairment of the right to protection, be it framed as a claim under s 7, s 12, s 15, or all three. In McKinney v University of Guelph (1990), 76 DLR (4th) 545 (SCC), it was held that courts must turn to available knowledge, including social science evidence, in assessing the question of minimal impairment: again, evidence of the effects of prohibiting the possession of clean needles and/or bleach can be presented to establish the seriousness of the violation being challenged.
While the Charter offers a "preventative" legal remedy, and litigation could be used as a way to prevent future cases of HIV transmission, it seems that the strongest test case in which to advance the above Charter arguments would be one brought by a prisoner who was infected through needle-sharing while incarcerated. In such an instance, a court would be faced with an existing harm that is alleged to flow, at least in part, from the state's prohibition – as opposed to being asked to strike down government policy because of its potential for future harm.
Finally, regardless of which Charter provision(s) is/are invoked to advance the arguments, it is important to stress that the constitutional interest being litigated is not a "right" of prisoners to inject IV drugs, but the right of prisoners to protect themselves against HIV infection, given the reality – acknowledged by correctional systems – that drug use and needle-sharing occur in prisons.
- Richard Elliott
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ENDNOTE
[1] See supra, Jürgens and Barnett. Results from the First National HIV/AIDS and Prisons Workshop.