Despite the overwhelming evidence demonstrating the benefits and effectiveness of prison needle and syringe programs (PNSPs) in preventing the spread of HIV and hepatitis C virus (HCV) in prisons, this important harm reduction measure is still not available to the majority of prisoners in Canada. For many years, prison authorities in Canada refused to implement such programs because successive federal governments were unwilling to support it. After years of advocacy, we decided to take this issue to court to fight for both public health and the right to health of prisoners in Canada. This lawsuit spanned eight years, and actually spurred the Correctional Service of Canada to start introducing a “Prison Needle Exchange Program” (PNEP) in federal prisons. That program is slowly rolling out now, and most prisoners still don’t have access to sterile injection equipment.

About the Lawsuit

On September 25, 2012, Steven Simons, a former prisoner, the Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network (PASAN), CATIE and the Canadian Aboriginal AIDS Network (CAAN) launched a lawsuit against the Government of Canada over its failure to make sterile injection equipment available to federal prisoners and prevent the spread of HIV and HCV in Canadian federal prisons. With the input of expert witnesses from Canada and beyond, and armed with many of the legal arguments outlined in Clean Switch: The Case for Prison-Based Needle and Syringe Programs, the goal of this lawsuit was to ensure prisoners' access to a key tool in HIV and HCV prevention — and to establish a legal precedent that will be useful in other jurisdictions seeking to ensure the same.

Among the evidence the Legal Network brought forward were affidavits and testimonials from 50 current or former federal prisoners from throughout Canada, documenting first-hand accounts of drug use and needle sharing inside prisons. These perspectives provided concrete evidence of the harm prisoners experience when they are denied health services that other citizens can access.  A compilation of these affidavits can be found in Under the Skin: A People’s Case for Prison Needle and Syringe Programs

Notice of Application to Ontario Superior Court of Justice

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Why take it to court?

Despite more than 20 years of research and advocacy for prison needle and syringe programs, correctional authorities and successive federal governments continued to resist and turn a blind eye. Many prisons have invested significant resources in anti-drug measures with little to show for it: rates of drug use remain steady, while rates of HIV and HCV are many times higher behind bars. With no commitment from our leaders to act on this pressing issue, we decided to take it to court.

This lawsuit was not just about protecting the health of prisoners. More than 90% of prisoners in Canada are eventually released back into their communities after serving relatively short sentences and possibly after acquiring HIV or hepatitis C virus (HCV) in prison from sharing needles and syringes.

The cost of PNSPs also pales in comparison to the cost of treating a person living with HIV and/or HCV, estimated at a minimum of $29,000 per year for HIV and $45,000 to $100,000 per patient for HCV, depending on treatment. In a time of increasing fiscal constraints, it would be far more cost-effective to provide people in prison with sterile needles and syringes than to treat needless HIV or HCV infections.

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Who was involved?

The applicant, Steven Simons, was incarcerated in Warkworth Institution from 1998 to 2010, where he was infected with hepatitis C when a fellow prisoner used his injection equipment. In describing his incarceration, Simons said, “I wanted to be involved in this case to save lives and prevent the spread of hepatitis and HIV.”

Steve joined forces with four organizations — the Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network (PASAN), CATIE, and the Canadian Aboriginal AIDS Network (CAAN). The case was litigated by Lori Stoltz and Jill Evans of Morris + Stoltz + Evans LLP and Adrienne Telford of Cavalluzzo. 

The case also involved a number of supportive interveners: Aboriginal Legal Services, the BC Civil Liberties Association, the Canadian Public Health Association, a coalition of Pivot Legal Society, Prisoners’ Legal Services, and the Vancouver Area Network of Drug Users (VANDU), and a nursing coalition comprised of the Registered Nurses Association of Ontario, Canadian Nurses Association, Association of Registered Nurses of British Columbia, and Canadian Association Of Nurses in HIV/AIDS Care.

The Legal Network also collaborated closely with a number of activists, harm reduction advocates, and community-based organizations, including the organizational co-applicants, to ensure community engagement around this ground-breaking litigation.

What was the Outcome?

In a disappointing decision, the Ontario Superior Court of Justice 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.” 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 decision does nothing to enshrine in law the human rights of prisoners in Canada. This is bad news for prisoners, but also for public health.

Prisoners’ ability to access sterile injection equipment continues to be at risk from politicians who are willing to disregard evidence and public health because of ideological opposition to harm reduction.

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.

We are proud of what we have accomplished thus far with our groundbreaking lawsuit. Our court case was the final catalyst for CSC to introduce a PNEP. This PNEP introduced by CSC, though flawed and incomplete in terms of roll-out, is the first of its kind in North America. This is a big win for prison and public health in Canada.

We will keep advocating to ensure that Canada’s PNEP is rolled out nationwide, and made effective, accessible, and confidential.

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Prisons need a needle exchange. There are a lot of people who come in, and haven’t done drugs before, and become addicted inside… They come out with a HIV or hepatitis C infection…If they had needle exchanges in institutions a long time ago, it would have saved a lot of people’s lives.”