Barring inmates access to clean needles unconstitutional, activists to argue

TORONTO — Barring drug-using federal prisoners from access to clean syringes puts them at risk for serious diseases and violates their rights, an Ontario court is set to hear.

For two days starting Monday, prison and other activists are expected to make the case that Ottawa’s rules and policies around needles in prisons are unconstitutional.

“The absolute prohibition on sterile injection equipment is arbitrary, overbroad and grossly disproportionate,” the applicants say in their filings in Superior Court.

“Prisoners are particularly vulnerable to infringement of their (constitutional) rights because the government has total control over every aspect of their daily lives, including their access to health care.”

The case was initially launched in 2012 by Steven Simons, who was imprisoned from 1998 to 2010. Court documents show Simons became infected with the hepatitis C virus and was potentially exposed to HIV, the virus that can lead to AIDS, while behind bars. He says another prisoner used his injection materials, and that they had no access to sterile equipment.

The problem, the applicants say, is that prison authorities regard syringes as contraband, making inmates found with them subject to punishment. The tough approach comes despite mounting evidence that in-prison access to sterile needles helps prevent the spread of serious illnesses.

“The sharing of drug-injection equipment poses a high risk for transmitting blood-borne infections,” the applicants state.

“The prevalence of HIV and (hepatitis C) among Canadian prisoners, including those in federal penitentiaries, is significantly higher than among the population as a whole.”

Activists note that more than 90 per cent of prisoners are eventually released. Like Simons, some will have become infected with serious illnesses from sharing needles and syringes behind bars.

“Correctional authorities’ refusal to ensure access to sterile injection equipment inside prisons not only jeopardizes the health and lives of prisoners, it also contributes to a public health problem beyond prisons.”

Statistics suggest Indigenous and female inmates are most at risk, making Ottawa’s approach discriminatory, the applicants say.

In recognition of the problem, the federal government recently began a pilot needle-exchange program in which inmates are given access to sterile equipment. However, The pilot has only been implemented in half a dozen of Canada’s 43 federal prisons, according to court filings.

One intervener in the case, the B.C. Civil Liberties Association, says the response is not enough given that widespread drug use is an acknowledged fact of prison life in Canada.

“As the vast majority of prisoners have no access to safe injection equipment, those who use drugs have no choice but to inject them in unsafe ways,” the association says in its factum.

Correctional Service of Canada has long tried to keep drugs out of prisons, but recognizes that contraband inevitably finds its way to inmates.

Prison guards oppose making needles available to inmates, citing the risk of accidental or intentional injury. However, their union says in-prison safe injection sites, in which inmates get access to needles for use in a supervised setting with nursing staff, are preferential to needle-exchange programs that offer injection kits for in-cell use.

The court is expected to hear that other countries offer needle and syringe programs with positive health benefits. It’s also expected to hear from the Canadian HIV/AIDS Legal Network about the drug situation in prisons.

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