Prison Needle Exchange: Lessons from a Comprehensive Review ...

documents above. Reports from the European Committee for the Prevention of Torture and
from the Eighth United Nations Congress have expressed similar positions, as have legal
scholars and medical experts within national contexts, for example in the United States and
Australia. 113 As has been explored in detail by Jürgens, recommendations on HIV/AIDS in
prisons developed by the international community consistently support “equivalence of treatment
of prisoners,” stress the importance of prevention of transmission of HIV in prisons, and
suggest that prevention measures, including sterile syringes, be provided to prisoners. 114
Obligations in Canadian law
Among other international human rights laws, Canada has ratified the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights. Canada is therefore legally bound to respect, protect, and fulfill the
rights guaranteed in these instruments, including the right to the highest attainable standard
of health. Concerning domestic human rights protections, Richard Elliott has argued that
sections 7, 12, and 15 of the Canadian Charter of Rights and Freedoms may provide prisoners
with a legal basis on which to seek the implementation of needle exchange programs. 115
Section 7 protects the right not be deprived of the right to life, liberty, and security of the person
except in accordance with the principles of fundamental justice; section 12 protects
against cruel and unusual punishment; and section 15 guarantees the right to equality before
and under the law and the right to equal protection and benefit of the law without discrimination
on the basis of certain personal characteristics.
In addition to the Charter, laws governing prison systems impose
obligations on governments to safeguard the health and well-being
of prisoners. The federal prison system is governed under the
Corrections and Conditional Release Act and the accompanying
regulations. 116 Under sections 85 to 88 of the CCRA, the
Correctional Service of Canada is mandated to provide every prisoner
with essential health care, and reasonable access to non-essential
mental health care that will contribute to his or her rehabilitation
and reintegration into the community. The CCRA states that this medical care “shall conform
to professionally accepted standards.” 117 It can be argued that since needle exchange is the
accepted standard in the community for preventing the transmission of HIV and HCV via
injection drug use, under the terms of the CCRA these programs must be made available to
prisoners in the federal system.
Professor Ian Malkin has analyzed the application of Canadian tort law within the context
of HIV transmission/prevention in prisons. 118 He concludes that governments and prison
authorities in Canada may be vulnerable to legal challenges for denying prisoners access to
sterile syringes if a prisoner can demonstrate that he or she has contracted HIV while incarcerated
as a result of sharing needles to inject drugs.
Governments and prison
authorities in Canada may be
vulnerable to legal challenges
for denying prisoners access
to sterile syringes.
18 Prison Needle Exchange: Lessons from a Comprehensive Review of International Evidence and Experience