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HOW CANADIAN LAWS AND POLICIES ON "ILLEGAL" DRUGS CONTRIBUTE TO THE
SPREAD OF HIV INFECTION AND HEPATITIS B AND C
Eugene Oscapella, B.A., LL.B., LL.M.
Barrister and Solicitor, Ottawa
December 1995
INTRODUCTION
This paper outlines how current Canadian drug laws and policies foster
the spread of HIV infection and other potentially fatal blood-borne diseases,
such as Hepatitis B and CSee
footnote 1 among drug users. It discusses how these conditions can
then be spread even to those who do not use these drugs or who have no
direct contact with drug users.
The paper also outlines policies, practices and laws that would help
prevent the spread of HIV infection and other blood-borne diseases. Among
these is a change in Canada's drug laws from a punitive system of criminal
prohibition to regulatory models that seek above all to reduce drug-related
harms.
This paper makes one well-founded assumption -- that Canada will
never and can never be a "drug-free" society. Our response to drugs must
therefore recognize that some people -- no matter what legal strictures
are imposed on them -- will continue to use the types of drugs we now call
illegal. We must therefore reshape our laws and policies to minimize the
harm to drug users and to society at large.
The extent of infection in Canada
Health Canada's July 1995 quarterly surveillance update, AIDS
in CanadaSee
footnote 2, states that 11,644 cases of AIDS have been reported in
Canada as of June 30, 1995. Some 15 per cent of female AIDS cases in Canada
can be traced directly to injection drug use. Three per cent of adult male
AIDS cases can be traced directly to injection drug use, and 4 per cent
of adult male cases can be traced to men who inject drugs and who have
sex with other men.
In addition, many AIDS cases arise from sexual contact with persons
at risk of carrying the HIV infection. Three per cent of adult male AIDS
cases and 37 per cent of adult female AIDS cases can be attributed to this.
It is impossible to say how many of the "at risk" contacts became at risk
because of drug use or behaviours linked to drug use (such as selling sex
to pay the black market price of drugs). However, as more and more intravenous
drug users are becoming infected with HIV, the risk of them infecting others
who have sex with them will grow. So will the risk of female drug users
transmitting HIV infection to future offspring.
These statistics reflect known cases of AIDS in Canada. In addition,
there may be 30,000 to 50,000 cases of HIV infection -- the precursor to
AIDS -- in Canada. Many of these people will have become infected through
injection drug use or contact with infected users. Dr. Stanley de Vlaming,
a Vancouver physician with a large clientele of drug users, reports as
follows:
There is currently an epidemic of HIV
infection sweeping unabated through the IV drug using community in BC.
My clinical experience suggests to me that the incidence of infection among
injection drug users in the downtown core of Vancouver now rivals the highest
seroprevalence rates in all of North America, putting us in the company
of areas like Brooklyn and Harlem, which have seroprevalence rates of 60%.
Thirty eight of the 60 methadone maintenance patients
under my care are HIV positive or have AIDS. While this 63% incidence may
reflect some selection bias, I don't think it is very far off the mark
as a representation of HIV seroprevalence among injection drug users in
Downtown Vancouver. Here at St. Pauls hospital I am consultant for an average
of eight injection drug using patients per week. These patients are being
admitted with serious complications of injection drug use like endocarditis,
sepsis, cellulitis, and pneumonia. Over the last few months I would estimate
that fully 50% are HIV positive or are diagnosed as such before they leave.
. . .
I have found almost 90 percent of my HIV positive
methadone patients are [Hepatitis C] antibody positive.See
footnote 3
The situation in Canadian prisons looks equally grim. In 1994, the Expert
Committee on AIDS in Prisons (ECAP) issued its report.See
footnote 4 A later discussion paper on HIV/AIDS in prisons released
in November 1995See
footnote 5 identified the following developments since the release
of the ECAP report:
. a 40 percent increase in the number
of known cases of HIV/AIDS in federal correctional institutions over 16
months. In August 1995, 152 federal inmates were known to be HIV positive
or have AIDS. In April 1994, the number was 109.
. increasing evidence of behaviours in prisons
that bring a high risk of transmitting HIV infection and, increasing evidence
that, as a result, HIV is being transmitted in prisons
. the rapid spread of hepatitis C in prisons.
From January to August 1995, 223 new cases of active hepatitis C and 22
new cases of hepatitis B were reported in federal prisons in Canada. In
addition three studies undertaken in Canadian prisons revealed hepatitis
C seroprevalence rates of between 28 and 40 per cent.
The first study was undertaken at the Prison for
Women in Kingston. Of the 86.9 per cent of the inmates who participated
in the study, 39.8 per cent tested positive for hepatitis C.
The second study was done at Joyceville Institution,
another federal institution. Of the 69.8 per cent of inmates who participated
in the study, 27.9 per cent tested positive.
A third study of male inmates in British Columbia
showed a prevalence rate of 28 per cent.See
footnote 6
How HIV and other blood-borne viruses are transmitted
The physical means by which HIV infection and other blood-borne viruses,
such as hepatitis B and C are transmitted through drug use are well known:
(a) directly to the person injecting
with a contaminated syringe (or other instrument used to inject drugs,
or a container of contaminated water used to rinse syringes)
(b) indirectly to other people who have intimate
contact with a person who has become infected by contaminated equipment:
sexual partners who may be spouses, friends, clients (if the user turns
to the sex trade) or, if the user goes to sex trade workers, the sex trade
workers themselves
(c) indirectly through donations or sales of blood
and organs (at least until such products were screened for HIV infection);
in the U.S., drug users may try to sell their blood to get money to buy
drugs at the inflated black market price
(d) to children born of mothers who became infected
directly through injection practices or indirectly through contact with
a person who became infected by injecting.
In some cases, more than one drug-related risk factor may be involved.
For example, a man or woman who injects drugs may turn to the sex trade
to support his or her drug habit.
Beyond the physical factors, legal and social factors can lead to
an increased risk of infection:
(a) Our laws prohibiting certain drugs
-- heroin and cocaine, for example -- have encouraged people who use drugs
to ingest them in more efficient ways, often by injecting. This happens
for several reasons. The high price of illegal drugs means that users cannot
afford to waste the drug. They may inject, rather than taking the drug
by a less efficient (and more expensive) means, such as orally or by "snorting".
And because the drugs are illegal, users will attempt to keep as little
of the drug with them as possible, to avoid detection or to attract lesser
punishment if they are caught. The need to keep smaller quantities of drugs
means that users will compensate by using more efficient means of taking
the drugs -- often injecting them. Finally, drug laws often outlaw substitutes
that could be taken by means other than injecting.
(b) Our laws prohibiting certain drugs have created
a culture of marginalized people by turning them into criminals for possessing
drugs and, in some cases, by driving people away from their traditional
social support networks -- non-using family members, friends and co-workers.
Users may share syringes out of a sense of solidarity or community -- for
the community of drug users may have become one of the few that does not
reject them. And because of their marginalization and distrust of authority,
it is difficult to reach these users with education about safe injection
practices or drug treatment.
(c) Our laws prohibiting certain drugs have fostered
a reluctance to educate drug users and non-users about safe injection practices
for fear of "condoning" an illegal activity. Ill-informed current drug
users may continue to share contaminated syringes and other "works". Novice
users may not know enough about the dangers of HIV infection through contaminated
equipment to protect themselves if they do start injecting drugs.
(d) Our drug laws and the attitudes they have
fostered towards drug users have sometimes generated strong opposition
to syringe exchange programs. This has occurred even where syringe exchange
programs were permitted by law. Some people simply view syringe exchanges
as condoning an illegal and immoral act. In at least one city, syringe
shortages resulted in the late 1980s from the reluctance of some pharmacies
to sell syringes to addicts. As well, police forces have been known to
threaten to charge those who operate syringe exchange programs with possession
of drugs because a syringe may contain drug residue.
(e) The high price of illegal drugs has forced
women, men and adolescents into the sex trade to pay for their drug habits.
The sex trade itself need not increase the risk of HIV infection as long
as the participants practice safe sex. However, some clients pay more for
unprotected sex. A drug user desperate to buy expensive drugs may take
the immediate risk of becoming infected by a client through unprotected
sex simply because it pays better. The user who becomes infected this way
may then spread HIV infection to other sexual partners, those who share
unclean injection equipment, and (for women) children born after the user
becomes infected.
If the drug user is already infected with HIV
or hepatitis and does not practice safe sex with clients -- again, because
it may pay better -- the user also increases the risk of infecting clients
and spreading HIV infection into the non-injecting community.
The pressures to ignore safe sex practices clearly
come in part from the user's need to pay an inflated price for drugs. That
inflated price is the consequence of prohibition.
(f) Drug users who fear being arrested for possession
of illegal drugs (and who also fear having their syringes used as evidence
against them) may forego using their own drugs and syringes. Instead, they
may go to "shooting galleries" (the drug users' rough equivalent of a tavern
or bar), where they are supplied with drugs and syringes. Users can thus
avoid being caught with either on the street. However, gallery operators
may knowingly or carelessly supply syringes or other injection equipment
contaminated with the HIV or hepatitis.
(g) For several reasons, laws prohibiting certain
drugs increase the risk of spreading HIV and hepatitis in prisons:
(i) drug laws result in drug users being sent to high-risk prison
environments. There, users will continue to want to use drugs, but will
have little if any means to protect themselves from HIV infection.See
footnote 7 Even if users did not inject drugs before going to prison,
they may start to do so in prison -- without ready access to clean syringes.
(ii) dependent users desperate to pay the exorbitant black market
price of drugs may commit "acquisitive" crimes -- thefts, burglaries and
robberies among them. Thus, drug laws are indirectly responsible for other
crimes which result in heavily dependent drug users going to prison. In
prison, these heavy users will continue to use drugs but will have little
if any means to protect themselves -- or others with whom they share injection
equipment -- from infection when they do.
(iii) condoms have not been available until recently in Canadian
institutions, and are still not available in all of them. In the past,
condoms were not made available in part because they could be used to hide
illegal drugs. Yet sexual activity continued to occur in prisons. Thus,
in part because of current prohibitionist drug laws, no protection from
HIV infection or hepatitis was available when inmates were sexually active.
(iv) bleach kits are frequently not available to clean syringes as
such kits might be seen as condoning an illegal activity.
(v) there is no legitimate source of access to clean syringes in
prisons, in part because this might be seen as condoning an illegal activity.
As a result, the considerable injecting that occurs in prisons may be done
by the sharing of just a few needles among dozens of users.See
footnote 8
(vi) prison authorities have restricted attempts to educate prisoners
about safe drug use for fear of being seen as condoning an illegal activity.
(vii) drug testing programs instituted in Canadian prisons may persuade
prisoners to switch from drugs that can be detected long after use (like
marijuana) to drugs that can be detected only up to a few days after use
(like heroin and cocaine). This likely means that drug users will shift
from smoking to injecting. With little or no access to clean syringes,
this greatly increases the risk of HIV infection.
It is strongly arguable that prison drug testing programs flow in
part from the mentality brought about by criminalizing certain drugs. Had
these drugs not been outlawed, drug testing might never have been implemented
in prisons, or at least testing programs might not be as extensive and
punitive -- or as likely to lead inmates to switch to injectable drugs.
(h) Our laws have fostered public attitudes that are vehemently anti-drug
and anti-drug user. In this climate, it is difficult to persuade Canadians
to care about what happens to people who use drugs. These public attitudes
are driven, not by one's inner senses, but largely by the simple existence
of a law saying that some activities are bad.
(i) Our drug laws have fostered the belief among some that drug users
don't care about their own lives or health. It is therefore difficult to
persuade non-users to care about what happens to users.
(j) Society's condemnation of drugs through the
law may lead some drug users themselves to believe that they are less than
worthy as human beings because they use drugs. This may compound other
problems that lead to low self-esteem and, in turn, more drug use. In turn,
drug users may become less concerned about their fate or the fate of those
around them -- and therefore be careless about becoming infected with HIV
or hepatitis through drug use.
(k) In some countries where people are paid for
blood donations, drug users may sell their blood to get enough money for
drugs. Blood and other tissue donations are now screened for HIV and hepatitis.
However, there remains a very small risk that contaminated blood will enter
the blood supply; the more drug users who sell their blood, the greater
the likelihood that some contaminated blood will enter the blood supply.
Changing our approach to drugs to reduce the risks of infection
(a) Reducing the physical risks
Education: Education about drugs should discourage harmful drug use
of any sort, but the message cannot end there. Some people will continue
to
use drugs, or will start using drugs despite knowledge of the possible
dangers. The key to reducing the risk of HIV and hepatitis transmission
is education about safe injection practices and alternatives to injection.
Research: An important precursor to education is research. Research
involves learning more about several aspects of injection drug use, including:
. the modes of transmission (in the context of
drugs, this has been fairly well documented, but there are occasional surprisesSee
footnote 9)
. the culturalSee
footnote 10 and legal impediments to adopting safer drug-using practices
. why people use drugs
. why they inject instead of ingesting drugs in
other ways that carry less risk of infection, and
. the impact of drug- and alcohol-related impairment
on risk-taking practices, including unprotected sex and injecting with
contaminated equipment.
Research can lead to a better understanding of the mechanisms of
HIV transmission and the culture and laws surrounding injection drug use.
This should lead to a change in high-risk drug use practices through changes
in culture and laws. It should also lead to the provision of equipment
needed to prevent the spread of infection among those who continue to inject,
the development of alternatives to injecting, and improved treatment programs
for those trying to stop using injectable drugs.
However, legal and social barriers often stand in the way of implementing
these risk-reducing measures.
(b) Reducing the risks fostered by the law -- Removing the legal
barriers to health promotion
As explained above, current laws favour the spread of HIV and hepatitis
infection among drug users, their sexual contacts and their offspring.
This section discusses several ways to reverse this damage.
(i) Removing perceived or actual legal impediments
to access to clean injection equipment
In some jurisdictions -- many of them AmericanSee
footnote 11 -- syringes are outlawed as "drug paraphernalia". In Canada,
the position appears to be that the possession and distribution of syringes
is not prohibited. Still, the law needs to be clarified.
Section 462.2 of the Criminal Code makes it a criminal offence
to sell an "instrument for illicit drug use". The Code defines "selling"
to include distributing, whether or not the distribution is made for moneySee
footnote 12. The penalty for a first offence is a fine of up to $100,000,
imprisonment for up to six months, or both. For a second offence, the maximum
fine is $300,000 and the maximum imprisonment is one year, or both.
Section 462.1 defines "instrument for illicit drug use" as follows:
anything designed primarily or intended under the circumstances
for consuming or to facilitate the consumption of an illicit drug, but
does not include a "device" as that term is defined in section 2 of the
Food and Drugs Act.
Thus, the Criminal Code does not prohibit distributing anything
that is considered a "device". The Food and Drugs ActSee
footnote 13 defines "device" as follows:
any article, instrument, apparatus or contrivance, including
any component, part or accessory thereof, manufactured, sold or represented
for use in
(a) . . . the prevention of a disease . . . in man . . ..
This combination of definitions from the Criminal Code and the
Food and Drugs Act seems to exempt syringes from the drug paraphernalia
laws -- at least if the syringe is "represented for use in preventing"
HIV infection, and if HIV infection is considered a "disease". In short,
it would not be an offence under s. 462.2 of the Criminal Code to
distribute syringes to prevent the spread of HIV infection.
However, the Narcotic Control Act complicates the law. The
Act bans the possession, sale, distribution etc. of certain drugs that
the Act calls narcotics.
It defines "narcotic" to mean the actual drug or "anything that contains"
the drug.See
footnote 14 Furthermore, Bill C-7, the Controlled Drugs and Substances
Act passed by the House of Commons on October 30, 1995, contains a
similar provision. Bill C-7, if enacted, will replace the Narcotic Control
Act.
Bill C-7 prohibits the possession, sale and various other activities
relating to "controlled substances". Controlled substances are defined
as those drugs listed in schedules to Bill C-7See
footnote 15; as well, a controlled substance means "any thing that
contains or has on it a controlled substance and that is used or intended
or designed for use . . . in introducing the substance into a human body".See
footnote 16
These somewhat distorted concepts of "narcotics" and "controlled
substances", when coupled with the Criminal Code and Food and
Drugs Act provisions mentioned above, appear to produce the following
state of the law:
(1) the legal provisions prevent the prosecution of persons
who are giving away (or even selling) clean syringes or who simply possess
clean syringes. Under both the Narcotic Control Act and Bill C-7,
syringes are not illegal unless they actually contain an illegal drug.
(2) they likely prevent the conviction of a person -- for example,
a syringe exchange program worker -- who receives a dirty syringe containing
drug residue. The law probably protects the person from conviction because
the prosecutor would have great difficulty that the person knew that the
syringe contained residue from a particular drug.
However, it is conceivable that a worker would know what
drug the used syringe contains if the worker can see something in the syringe
and is told by the user what the substance is. This could mean that the
worker is guilty of possession of a narcotic under the Narcotic Control
Act. Under Bill C-7, the worker might have sufficient knowledge to
be convicted of possession of a controlled substance in the form of a syringe
that contains a controlled substance and is designed for use in introducing
the substance into the human body. Thus, syringe exchange program workers
could be at risk of being convicted. At the very least, the workers could
face harassment by uncooperative police officers or civic authorities.
(3) they put drug users who carry their own used syringes at risk
of being charged with possession on the basis of the residue found in the
syringe. This would discourage users from carrying their own used, but
otherwise safe, syringes. This in turn could increase the chances that
the user would share someone else's syringe or use a possibly infected
syringe from a shooting gallery. It might also increase the chances that
a user would simply discard a syringe after using it, creating a risk of
infection for anyone who comes into contact with the syringe.
It seems clear that present paraphernalia and drug laws try to protect
syringe exchange programs. However, these laws still leave some uncertainty
about the legality of possession of used syringes that contain drug residue.
They may also encourage the spread of HIV and other infections by discouraging
users from having their own used syringes with them at times when they
may not have access to clean syringes.
If the laws prohibiting possession of drugs are not repealed, they
should at least be amended to remove any doubt about the legality of all
aspects of syringe exchange programs. Otherwise, only by undergoing this
tortuous analysis of the law can one conclude that syringe exchange programs
are generally legal in Canada. The amendments should state clearly that
possession of a syringe containing drug residue would not be an offence.
A clear statement in the law explicitly permitting syringe exchange
programs would make those who operate or who contemplate running syringe
exchange programs less vulnerable to harassment through threat of prosecution.
It would also reduce the incentive for users to forego carrying their own
syringes and get possibly contaminated syringes at shooting galleries.
(ii) Changing the law to reduce the number of
users placed in high-risk prison environm ents
Drug users may end up in prison because they possess, import, export,
cultivate or traffic drugs or because they commit crimes to feed their
expensive drug habits.See
footnote 17 Criminalizing drugs is therefore directly or indirectly
responsible for many people being jailed. Between 1985 and 1990, there
were over 16,000 sentenced admissions to provincial jails in Canada for
drug-related offences.See
footnote 18 In addition, in 1992 there were about 1,200 inmates serving
time for drug-related offences in federal institutions.See
footnote 19
As explained earlier, prisons are extremely high-risk environments
for the transmission of HIV, both because of the sharing of scarce injection
equipment and unprotected sexual contact. Heavily dependent drug users
will continue to use drugs despite the increased risk of HIV infection
through drug use in prisons. One crucial goal must therefore be to reduce
the number of drug users being sent to prison.See
footnote 20
There are several ways to do this. Many require changing the direction
of Canada's drug laws:
. change drug laws so that various activities
relating to drugs would no longer be considered a criminal offence that
might result in imprisonment. These changes could take any of several forms:
. allowing possession
of small quantities for personal use (the Dutch model), but retaining penalties
for possession for the purpose of trafficking and trafficking (using this
model, some drug users who traffic to support their habit would still end
up in prison). A variation would be to move to a "ticketing" system, where
persons found in possession of small amounts of a drug would receive a
ticket much like a parking ticket. There would be no possibility of imprisonment
under the ticketing scheme.
. allowing possession
of small quantities for personal use and providing the drug to those who
register for it as a "dependent" person."See
footnote 21 Under this scheme, the user would have less incentive to
traffic in drugs to support his or her habit and would be less likely to
end up in prison for trafficking or related offences. This scheme would
also reduce the need for acquisitive crimes and the sex trade to get money
to pay the highly-inflated street price of the drugs. In turn, this would
result in fewer drug users going to prison. This scheme would permit maintaining
criminal penalties for trafficking, importing, exporting and cultivating.
. regulating drugs in
a manner similar to alcohol and tobacco. Possession of any quantity by
adults would not be prohibited. Distribution of the drug could be regulated
-- perhaps through an agency like a provincial liquor control board or,
for some drugs, through other outlets that normally sell tobacco products.
Users would not risk imprisonment unless they committed a crime while under
the influence, as is the case with alcohol. The price of these drugs would
fall -- dramatically in some cases, due to the absence of a black market
premium -- and users would therefore be less likely to need to commit other
crimes to get the money to buy drugs.
. decriminalizing sex
trade-related offences so that drug users who turn to the sex trade to
support their habits are not imprisoned in high-risk environments (if their
drugs were more readily available through clinics or if the street price
were lowered, there would be less need to turn to the sex trade in the
first place).
. maintaining current
drug laws, but using police and prosecutorial discretion to divert drug
users to treatment instead of incarcerating them.
The 8th Annual British Columbia HIV/AIDS Conference
issued a strong call for changes to Canada's drug laws at its November
1994 meeting. The following resolution, passed by the overwhelming majority
of the delegates attending the final day's plenary session, states:
Statement on drug policy and HIV infection
Passed at the plenary meeting of the 8th Annual B.C.
AIDS Conference
Vancouver, B.C., November 8, 1994
Reducing the risk of HIV infection among drug
users, and among other Canadians with whom they come into contact, will
require many changes to current drug laws and policies. Among the most
important are changes to laws that treat drug users as criminals, foster
unsafe drug use practices, marginalize users from mainstream Canadian society,
drive them to commit crimes or high-risk unprotected sex to maintain their
habits, and increasingly place them in prisons where there is an extremely
high risk of acquiring HIV infection. Failing to take measures to prevent
drug-related HIV infections will cause unnecessary death and impose an
enormous economic burden on Canada's health care and social security system.
Our current drug laws do not help drug users,
nor do they serve Canadian society. We call for the withdrawal of Bill
C-7, the Controlled Drugs and Substances Act now being considered by Parliament.
We also strongly urge governments across Canada to promote the following
changes:
(a) removing possible
legal impediments to access to clean injection equipment, including in
institutional settings such as prisons and hospitals
(b) amending drug laws
to reduce the number of non-violent drug users placed in high risk prison
environments
(c) amending policies
to allow for the introduction of measures that will prevent the spread
of HIV among prison inmates and, ultimately, among Canadians in open society
(d) amending the law to
reduce the ramifications of carrying syringes
(e) helping, through honest
public education about the causes and nature of drug use, to reshape public
attitudes about drug users
(f) in general, adopting
laws and policies that seek to reduce the global harms associated with
drug use, rather than focussing solely on interdiction and punishment
(g) complying with constitutional
and international human rights obligations that apply to drug users and
non-users alike.
(iii) Changing the law to reduce resistance in prisons
to syringe exchange programs and other measures aimed at preventing the
spread of HIV
Some prisons have refused to make condoms available to inmates at
least in part because condoms can be used to hide illegal drugs.See
footnote 22 Removing the legal prohibition against drugs might reduce
pressures to withhold condoms from prisoners, although other pressures
remain. (In fact, federal prison authorities now make condoms available
to prisoners. However, they might have done so earlier -- thus preventing
even more HIV infections in prisons -- if condoms were not so strongly
associated with hiding illegal drugs.)
Similarly, removing the legal stigma from drug use might result in
less resistance to the distribution of bleach kits in prisons. Prison authorities
might even become more open to making injection equipment available to
prisoners, although the possible use of syringes as weapons in the violent
prison atmosphere must be considered.
A change in drug laws might also relax pressures to do drug testing
in prisons -- drug testing that may lead inmates to switch from drugs that
are not injected to those that are.See
footnote 23
(iv) Changing the law to reduce the fear
of carrying syringes
If possession of a drug were no longer illegal, possession of injection
equipment would not need to be illegal. Drug paraphernalia laws would largely
be unnecessary. This would resolve the possibility of prosecuting those
who receive used syringes containing drug residue. As well, users would
not fear that the possession of a syringe would be used as evidence in
a criminal prosecution for possession of a drug; there would be less incentive
to rely on shooting galleries to provide (possibly contaminated) syringes.
(v) Changing the law to help reshape social attitudes
There is little doubt that the law shapes our attitudes towards certain
activities that might not otherwise offend us. This may well be the case
with at least some of Canada's drug laws. The law has shaped public opinion
rather than being shaped, as it should, by public opinion.
How many individuals reject drug users, not because they use drugs,
but simply because users are breaking the law? One can easily detect this
attitude among government officials and members of the public who balk
at measures to control the spread of HIV infection among drug users because
these measures may be seen as "condoning" an illegal activity -- drug use
(or more accurately, the possession of drugs). Over 20 years ago, the Le
Dain Commission noted that many people obey the law simply because it is
the law.See
footnote 24 Presumably, those same people would expect others to obey
the law in the same unquestioning manner. Those who do not obey the law
attract social hostility.
Thus, the law may make the public reluctant to help drug users: "What
they're doing is illegal and wrong. Let them die." In practical terms,
this results in public opposition to syringe exchange programs and education
about safe injection practices. It maintains drug users on the margins
of society, where they are difficult to reach and help. It may foster an
attitude of self-loathing among drug users themselves, making them less
concerned about preventing HIV infection.
Of two problems facing society -- drug use and AIDS and other blood-borne
diseases -- the greater evil are these diseases, simply because they are
invariably (with AIDS) or potentially (with hepatitis) fatal. To the extent
that our drug laws foster antipathy or open hostility towards drug users,
changes to these laws are necessary unless their supporters can show a
valid public interest that outweighs the dangers posed by AIDS and hepatitis.
It is hard to conceive of how an objective debate about drug policy and
disease could lead to such a conclusion.
The mechanisms for changing the law
At present, the Narcotic Control Act makes it a crime to possess
or traffic in a drug covered by the Act. This includes heroin, cocaine
and marijuana. The Food and Drugs Act imposes similar controls,
although it is not necessarily an offence to possess a drug if it is a
"controlled" drug under the Act. The drug paraphernalia laws are contained
mainly in the Criminal Code, but the Food and Drugs Act is
also relevant. Other federal laws are also implicated in our treatment
of drug users. For example, the Corrections and Conditional Release
Act allows prisoners to be drug tested. As explained above, drug testing
may greatly increase the risk of HIV and other blood-borne infections in
prisons.
Removing the legal obstacles to the prevention of HIV infection among
drug users will therefore require changing these laws and, if it becomes
law, the Controlled Drugs and Substances Act. Even if Parliament
does not change these laws, it should at least reform that laws of evidence
so that the possession of a syringe -- clean or containing drug residue
-- could not be used in evidence for any criminal charge involving drugs.
This would reduce the reluctance of drug users to carry their own syringes.
Removing legal obstacles may also involve Canada pressing for changes
to international conventions concerning drugs or renouncing these conventions.
These are the Single Convention on Narcotic Drugs, 1961, the Convention
on Psychotropic Substances 1971 and the United Nations Convention
against Illicit Traffic in Narcotic Drugs and Substances, 1988 . There
is disagreement about the extent to which these conventions in fact prevent
Canada from moving to a more health-based and less punitive approach to
drugs. To remove all doubt, Canada could either renounce the treaties or
press for amendments that would give Canada sufficient flexibility to address
drug concerns in the most helpful way possible.
The Canadian Charter of Rights and Freedoms may also have
a role to play. The issue is not one of amending the Charter. Rather
it is the interpretation of the Charter on drug issues. Even if
Canada does not change its federal drug laws, and even if it does not seek
to amend or renounce its purported international obligations, courts may
interpret some laws about drugs as violating the Charter.See
footnote 25 Several sections of the Charter might be relevant,
including the followingSee
footnote 26:
Section 7: "Everyone 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."See
footnote 27
Section 8: "Everyone has the right to be secure
against unreasonable search or seizure."
Section 9: "Everyone has the right not to be arbitrarily
detained or imprisoned."
Section 12: "Everyone has the right not to be
subjected to any cruel and unusual treatment or punishment."
Section 15(1): "Every individual is equal before
and under the law and has the right to the equal protection and equal benefit
of the law without discrimination . . ." .
Section 24(1) of the Charter permits anyone whose rights and
freedoms under the Charter have been infringed or denied to apply
to a court to get a remedy that the court considers "appropriate and just
in the circumstances". Furthermore, section 52(1) states that any law that
is inconsistent with the Constitution (which includes the Charter)
is, to the extent of the inconsistency, of no force or effect.
Another means to change the law as it applies to prisoners, and one
certain to be controversial, lies in private criminal prosecutions.See
footnote 28 These are prosecutions launched by private individuals
rather than by Crown prosecutors. One could argue that prison authorities
and government officials who know the extreme risks of HIV infection in
prisons and yet who do little or nothing to reduce the risks are criminally
negligent. The Criminal Code defines criminal negligence. It states:
219. (1) Everyone is criminally negligent
who
(a) in doing anything,
or
(b) in omitting to do
anything that it is his duty to do,
shows wanton or reckless disregard for the lives
or safety of other persons.
(2) For the purposes of this section, "duty" means
a duty imposed by law. >
Section 220 of the Code makes it an indictable offence, punishable
by up to life imprisonment, to cause death by criminal negligence. Section
221 makes it an indictable offence, punishable by up to ten years imprisonment,
for criminal negligence causing bodily harm.
The argument in support of a private prosecution for criminal negligence
might be as follows:See
footnote 29
(i) prison authorities and government
officials have a legal duty to safeguard those under their control.
(ii) they know that drug use, including injection
drug use, is widespread in prisons, putting inmates at risk of HIV infection
from injecting drugs or from having sex with persons who have become infected
by injecting drugs.
(iii) Even though inmates may be committing institutional
offences by injecting drugs or by having intercourse, prison officials
and politicians know that this activity cannot be stopped. The legal duty
on prison authorities and politicians to safeguard prisoners should therefore
extend to finding other means to prevent the spread of HIV infection. This
could include any or all of the following:
. education about safe
injection practices
. enhanced treatment facilities
to help users stop using
. the provision of condoms
. the provision of bleach
kits
. the provision of injection
equipment
. the provision of substitutes
that can be taken orally or smoked.
If prison officials and politicians fail to take some or all of these
measures, it might be argued that they are criminally negligent for any
injury (for example, HIV or hepatitis infection) or death that results.
Once an individual launches a private prosecution, the Attorney General
of the province may decide to take over conduct of the case. Sometimes
the Attorney General will continue with the prosecution. However, the Attorney
General may equally decide to "stay" the charges or withdraw them.
If a prosecution for criminal negligence were successful, Parliament
and prison authorities would clearly have to reconsider the laws and policies
that increased the risk of HIV infection in prisons. This might even include
a reconsideration of drug laws that are directly or indirectly (through
compelling users to commit crimes to get money for high-priced black market
drugs) responsible for drug users going to prison.
Finally, lawsuits against prison officials and politicians for civil
negligence might also be effective in securing changes to policies and
laws.
(c) Reducing the risks caused by social factors
Other
policies and practices that would help prevent the spread of HIV infection
among drug users
Securing changes to the law is only one means to reduce the risk
of HIV infection among drug users. Many measures independent of the law
-- or at least partly independent -- can also reduce the risks.
Helping injectors to stop using
drugs: If a person is injecting drugs in a way that may be causing personal
harm or harm to others, every effort should be made to help the person
to stop using drugs. This means readier access to treatment and counselling.
Helping those who continue to use drugs
to use them safely: Abstinence is simply not a practical goal in every
case. Those who continue to use drugs should be encouraged to do any or
all of the following:
. take the drug by some
means (orally or by "snorting", for example) that does not involve the
use of possibly contaminated syringes. In the United Kingdom, for example,
non-injectable drugs in the form of "reefers" -- herbal or tobacco cigarettes
injected with heroin, methadone, cocaine or amphetamine -- are prescribed
to drugs users who might otherwise risk infection from a shared syringe.See
footnote 30
. switch to another drug
that is not usually injected
. inject with uncontaminated
syringes and avoid other dangerous practices related to injecting (such
as sharing a container of contaminated water to rinse syringes). This may
require helping users to change the social "etiquette" of drug taking.
. use drugs in a way that
does not impair their judgment to the extent that they might engage in
other high-risk practices, such as unprotected sex, while under the influence.
. use condoms to reduce
the risk of transmission to sexual partners and offspring.
Trying to bring drug users back from the
margins of society: Drug users who do not feel driven to the margins of
society may be more highly motivated to protect their health by using drugs
more safely. Says one group of Dutch researchers:
The more society marginalizes
drug users, the less can the drug user be expected to behave in a responsible
way, i.e. not lending his or her needles to others, not throwing used needles
in parks and gutters, always using condoms and refraining from becoming
pregnant when seropositive.See
footnote 31
Measures that aim to help users see themselves
as part of society, rather than as outcasts, are vital. If it is not possible
to bring drug users into the mainstream, the focus should turn to helping
the peer groups of users to assume the same role -- encouraging safer drug
use and other behaviours.
One Australian authority, Dr. Alex Wodak, notes
that some groups of injection drug users seem more vulnerable to high risk
behaviour than others. These include people with no history of drug treatment,
youth and the homeless.See
footnote 32 Measures to improve the economic lot of the young and the
dispossessed are therefore part of the preventive equation as well.
Careful structuring of syringe exchange
programs: Syringe exchange programs must be effectively designed. Programs
must be non-judgmental. Moralizing simply risks driving users underground
or further underground. Programs must ensure respect for the user's confidentiality.
They should be linked to education and treatment programs and they should
have the cooperation of the police, if possible. Programs must also be
accessible; this may mean locating in areas frequented by those who inject
drugs or possibly even using mobile distribution vans.
Honest public education about AIDS, hepatitis
and drug use: Much resistance to syringe exchange programs seems to stem
from public misunderstandings about the benefits of syringe exchange programs.
This requires explaining that protecting injection drug users from HIV
infection will ultimately protect the non-using community -- the so-called
"general population". It will also require explaining the human and financial
savings that flow from preventing HIV and hepatitis infections. It will
involve explaining that syringe exchange programs are not intended to and
do not appear to increase the number of drug users. On a more global scale,
it will require helping the general public to understand drug users as
members of society, not as outcasts. In short, the public education message
must reflect a balance between the altruism of the general community of
non-users and their self-interest in preventing the spread of HIV infection
to their community.
Because so many factors that increase the risk
of HIV and hepatitis infection are related to the law, public education
must also honestly assess the possible benefits of changing our drug laws
from punitive criminal laws to health-based alternatives. It is essential
that members of the public understand the link between the present law
and high-risk behaviours -- including injection drug use, reluctance to
carry syringes, the use of shooting galleries as an alternative, marginalization,
the sex trade and placement of drug "offenders" in high-risk prisons.
Obtaining police support: Even if syringe
exchanges are legal in Canada, police attitudes can have a major impact
on the effectiveness of such programs. Police who "stake out" syringe exchange
clinics to see who is using drugs will only drive users away. Police harassment
of users and program workers with threats of prosecution under Canada's
somewhat unclear laws can also diminish the effectiveness of the programs.
Educating the police about the value of syringe exchange programs is therefore
essential.
Making appropriate forms of HIV and hepatitis
testing available: Drug users who have engaged in high risk behaviours
should be encouraged (with appropriate pre- and post-test counselling)
to be tested. To reduce their reluctance to be tested, they should be offered
anonymous testing if they wish. In some jurisdictions, changes to the law
may be necessary to permit establishing anonymous testing centres, although
such centres have been set up even where they are not technically allowed.
Prison programs: The Expert Committee on
AIDS in PrisonsSee
footnote 33 identified several programs to reduce the risks of HIV
infection associated with drug use in prisons. They included:
. access to anonymous
HIV testing, and testing by personnel independent of Correctional Service
Canada
. the availability to
all prisoners of education about HIV infection and AIDS
. education about safe
drug use practices and treatment options
. the availability of
condoms, dental dams and water-based lubricant (to prevent the spread of
HIV from infected persons during sexual activity)
. availability of bleach
. research to identify
ways and develop measures, including access to sterile injection equipment,
that will further reduce the risk of HIV transmission
. access to methadone
to reduce the risk of infection from injecting
. consideration of the
concern that drug testing programs in prisons may encourage inmates to
switch from non-injected drugs to drugs that are more likely to be consumed
by injecting.See
footnote 34
Conclusion
Some important strategies, such as syringe exchange programs, have already
been adopted in this country. Opposition to syringe exchange programs and
education programs has generally been less fierce than in the United States,
for example. Still, many crucial preventive strategies, such as the reform
of drug laws, remain a distant hope. Until very recently, Canada had not
experienced the catastrophic rates of HIV infection among drug users typical
of many American and European cities. This has now changed, with rapidly
rising rates of infection in Vancouver, and almost certainly in other Canadian
cities, among those who inject drugs. The experience of other countries
shows that the rate of HIV and hepatitis infection can explode within a
very brief period. Canada is now witnessing that explosion.
Endnotes
Footnote:
1 The hepatitis B virus infects people of all ages. It is one of
the fastest-spreadingsexually transmitted diseases, and also can be transmitted
by sharing unclean needles orby any behaviour in which a person's mucous
membranes are exposed to an infectedperson's blood, semen, vaginal secretions,
or saliva. While the initial sickness is rarelyfatal, ten percent of people
who get hepatitis B are infected for life and run a high riskof developing
serious, long-term liver diseases -- such as cirrhosis of the liver or
livercancer -- which can cause serious complications or death. A safe,
effective vaccine thatprevents hepatitis B is available. Hepatitis C is
less likely than the other hepatitis viruses to cause serious illness at
first(only one-quarter of the people infected actually develop symptoms).
About half ofthose infected develop chronic liver disease. Like hepatitis
B, hepatitis C can be spreadby contact with infected blood, such as through
sharing unclean needles, and possiblysemen, vaginal secretions, and saliva.
Footnote:
2 Division of HIV/AIDS Epidemiology, Laboratory Centre for Disease
Control, July 1995.
Footnote:
3 S. de Vlaming, "HIV and the Injection Drug User", paper presented
to the 9th AnnualB.C. HIV/AIDS Conference, Vancouver, B.C., November 5
7, 1995 [footnote omitted].
Footnote:
4 Correctional Service Canada, HIV/AIDS in Prisons: Final Report
of the ExpertCommittee on AIDS and Prisons (Ottawa: Minister of Supply
and Services Canada1994).
Footnote:
5 Ralf Jrgens, HIV/AIDS in Prisons: A Discussion Paper prepared
for the Canadian AIDSSociety and the Canadian HIV/AIDS Legal Network (15
November 1995) at 21.
Footnote:
6 Note 5 above, at pages 2829. The Jrgens report notes at page
29 that similarfigures for hepatitis C infection are reported by other
prison systems.
Footnote:
7 One study reviewed by the Expert Committee on AIDS in prisons
concluded that"HIV infection in prisons will increase if there is an increase
in the proportion of IVdrug users imprisoned and if there is an increase
in HIV infection amongst IV drugusers in the general community": Correctional
Service Canada, HIV/AIDS in Prisons:Final Report of the Expert Committee
on AIDS and Prisons (Ottawa: Minister of Supplyand Services Canada 1994)
at 65.
Footnote:
8 The Expert Committee on AIDS in Prisons acknowledged that it
is difficult todetermine exactly how much injection drug use occurs in
prisons. However, theCommittee stated, "it is also greed that, in Canada
and elsewhere, injection drug use isprevalent in prisons and that the scarcity
of needles often leads to needle sharing." Ibid.at 64.
Footnote:
9 Such as the discoveries that even users who did not share needles
mightbecome infected by sharing water to rinse syringes, or that bleach
is not as rapidlylethal to the HIV in syringes as previously thought.
Footnote:
10 Such as why some users continue to share syringes, even when
they know the risk ofHIV and other infections.
Footnote:
11 An October 1993 American study found that about half the needle
exchangeprograms in the United States were legal: School of Public Health,
University ofCalifornia, Berkeley, Institute for Health Policy Studies,
University of California, SanFrancisco, The Public Health Impact of Needle
Exchange Programs in the United Statesand Abroad (The Regents of the University
of California, 1993) at iii.
Footnote:
12 Section 462.1.
Footnote:
13 Section 2.
Footnote:
14 Section 2.
Footnote:
15 Section 2(1).
Footnote:
16 Section 2(2)(b)(ii).
Footnote:
17 A recent (September 28, 1995) Globe and Mail article cited a
confidential report bythe European Banking Federation claiming that Canadian
banks have the dubiousdistinction of being the most robbed in the industrialized
world. Thieves "have tocome back more often in Canada," said Pascal Kerneis,
who compiled the study at thefederation's headquarters in Brussels. "Most
of the robberies in Canada are hit-and-runfor drug money" (The Globe article
did not explain how the Federation reached thisconclusion; however, the
pressures on addicts to pay the exorbitant black market priceof drugs is
clearly an incentive to commit acquisitive crimes of one form or another,bank
robberies or not.)Of course, drug users may also end up in prison by committing
crimes of violencewhen under the influence, or they may commit crimes that
have nothing to do withtheir drug use.
Footnote:
18 D. Riley, "Drug Use in Prisons: A Harm Reduction Approach",
paper presented tothe B.C. AIDS Conference, November 1992. Dr. Riley's
source for this information wasCorrectional Service Canada, Research and
Statistics Branch, Forum on CorrectionsResearch, 2 (4), (Ottawa, Correctional
Service Canada, 1990).
Footnote:
19 Riley, ibid.
Footnote:
20 In its Final Report, the Expert Committee on AIDS in Prisons
said: Reducing the number of drug users who are incarcerated in federalpenitentiaries
is one possible way that HIV transmission in prisons may belessened. Many
of the problems created by HIV infection and by drug use inprisons could
be reduced if alternatives to imprisonment, particularly in thecontext
of drugrelated crimes, were developed and made available: Supranote7 at
6.
Footnote:
21 Some cities in Britain and Switzerland register those dependent
on drugs and supplythem with small quantities so that they will not resort
to crime to pay high street pricesfor drugs: New York Times, July 10, 1994.
Footnote:
22 Some authorities would also argue that condoms can be used as
weapons. Furthermore, sexual intercourse among prisoners is prohibited;
dispensing condomscould be seen as condoning behaviour that violates prison
regulations.
Footnote:
23 Prison officials may claim, however, that drug testing is done
to reduce the demandfor drugs. Decreased demand will reduce the violence
associated with the illegal drugtrade in prisons. Of course, the drug trade
in prisons is generated in part byimprisoned drug users who continue to
want drugs. Changes to the law that wouldend penalties for possession and
reduce the need for acquisitive crime would result infewer drug users going
to prison. As well, decriminalizing drugs outside prisons mightweaken the
financial forces that make drug trafficking in prisons so profitable.
Footnote:
24 Commission of Inquiry into the Nonmedical use of Drugs, Final
Report (Ottawa,1973) at 55. "Many people obey the law simply because it
is the law. With them, thelaw has moral authority, quite apart from any
adverse consequences of violation. Theyobey the law out of a sense of moral
obligation to do so."
Footnote:
25 This has already been done in cases concerning mandatory drug
testing, theimposition of criminal penalties for possession of marijuana,
and the imposition ofcriminal penalties for the manufacture and distribution
of literature promoting the useof illegal drugs. In a judgment released
October 5, 1994, Madam Justice EllenMacDonald of the Ontario Court's General
Division declared unconstitutional the partof section 462.2 of the Criminal
Code prohibiting the manufacture and distribution ofliterature promoting
illicit drug use. The judge said the law infringes society's right tofreedom
of expression as guaranteed under the Charter: The Globe and Mail, October7,
1994.
Footnote:
26 Section 1 of the Charter would of course act as a limit on the
expression of theserights. Section 1 states:The Canadian Charter of Rights
and Freedomsguarantees the rights andfreedoms set out in it subject only
to such reasonable limits prescribed by law ascan be demonstrably justified
in a free and democratic society.
Footnote:
27 One could, for example, argue that laws or policies interfering
with syringeexchanges violate this right.
Footnote:
28 There is one very recent precedent for a private criminal prosecution
of prisonworkers. In September, 1994, the mother of a prisoner who died
after being takenforcibly from his cell at Kingston Penitentiary laid charges
of manslaughter and criminalnegligence against six correctional officers.
The charges were laid privately before ajustice of the peace instead of
by the police. The Ontario Attorney General couldintervene to prevent the
case from going to trial: The Globe and Mail, September 20,1994, p. A5.
Footnote:
29 The legal arguments concerning criminal negligence would of
course be much moresophisticated than those raised here. This report merely
raises the broad arguments.
Footnote:
30 These programs are mentioned in the Addiction Research Foundation,
"Best Advice:Prevention Strategies: Injection Drug Users and AIDS" (Addiction
Research Foundation,1991). Equivalent programs in Canada would require
changes to our criminal lawsprohibiting the dispensation of these drugs.
Footnote:
31 E. Buning, G. van Brussel, G. van Santen, "The impact of harm
reduction drugpolicy on AIDS prevention in Amsterdam" in P. O'Hare, R.
Newcombe, A. Matthews, E.Buning and E. Drucker, ed., The reduction of drugrelated
harm (New York, Routledge:1992) 30 at 37.
Footnote:
32 A. Wodak, "A Dutch Smorgasbord: Research on HIV/AIDS and Injecting
DrugUsers", (1993) 4 International Journal of Drug Policy 5 at 26.
Footnote:
33 See note 7, above.
Footnote:
34 Ibid. at 76.
{Footer} _____________________________HOW CANADIAN LAWS AND POLICIES
ON "ILLEGAL" DRUGS CONTRIBUTE TO THE SPREAD OF HIV INFECTION AND HEPATITIS
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Converted by Andrew Scriven
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