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Insite: CMA submission regarding Insite supervised injection site and program.

https://policybase.cma.ca/en/permalink/policy14129

Date
2011-02-17
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
  1 document  
Policy Type
Court submission
Date
2011-02-17
Topics
Health care and patient safety
Pharmaceuticals/ prescribing/ cannabis/ marijuana/ drugs
Text
S.C.C. File No.: 33556 IN THE SUPREME COURT OF CANADA (APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) BETWEEN: ATTORNEY GENERAL OF CANADA AND MINISTER OF HEALTH FOR CANADA Appellants (Appellants/Cross-Respondents) —and — PHS COMMUNITY SERVICES SOCIETY, DEAN EDWARD WILSON and SHELLY TOMIC, VANCOUVER AREA NETWORK OF DRUG USERS (VANDU) Respondents (Respondents/Cross-Appellants) —and — ATTORNEY GENERAL OF BRITISH COLUMBIA Respondent (Respondent) —and — ATTORNEY GENERAL OF QUEBEC, DR. PETER AIDS FOUNDATION, VANCOUVER COASTAL HEALTH AUTHORITY, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN HIV/AIDS LEGAL NETWORK, INTERNATIONAL HARM REDUCTION ASSOCIATION AND CACTUS MONTREAL, CANADIAN NURSES ASSOCIATION, REGISTERED NURSES' ASSOCIATION OF ONTARIO AND ASSOCIATION OF REGISTERED NURSES OF BRITISH COLUMBIA, CANADIAN PUBLIC HEALTH ASSOCIATION, CANADIAN MEDICAL ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, BRITISH COLUMBIA NURSES'S UNION Interveners FACTUM OF THE INTERVENER, CANADIAN MEDICAL ASSOCIATION BORDEN LADNER GERVAIS LLP 100 Queen Street — Suite 1100 Ottawa, ON KIP 1J9 Guy J. Pratte/Nadia Effendi Tel: (613) 237-5160 Fax: (613) 230-8842 Counsel for the Intervener, Canadian Medical Association 2 TO: Roger Bilodeau, Q.C. REGISTRAR SUPREME COURT OF CANADA AND TO: Robert J. Frater Attorney General of Canada Bank of Canada Building 234 Wellington Street, Room 1161 Ottawa, Ontario KlA OH8 Telephone: (613) 957-4763 FAX: (613) 954-1920 E-mail: robert.fratergustice.gc.ca Counsel for Appellant/Respondent on Cross- Appeal, the Attorney General of Canada Robert J. Frater Attorney General of Canada Bank of Canada Building 234 Wellington Street, Room 1161 Ottawa, Ontario KlA OH8 Telephone: (613) 957-4763 FAX: (613) 954-1920 E-mail: robert.frater@justice.gc.ca Counsel for Appellant/Respondent on Cross- Appeal, the Minister of Health for Canada Joseph H. Arvay, Q.C. Arvay Finlay 1350 - 355 Burrard Street Vancouver, British Columbia V6C 2G8 Telephone: (604) 689-4421 FAX: (604) 687-1941 E-mail: jarvay@arvayfinlay.com Counsel for Respondent, PHS Community Services Society Jeffrey W. Beedell McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: jeffbeedell@mcmillan.ca Agent for Respondent, PHS Community Services Society 3 Joseph H. Arvay, Q.C. Arvay Finlay 1350 - 355 Burrard Street Vancouver, British Columbia V6C 2G8 Telephone: (604) 689-4421 FAX: (604) 687-1941 E-mail: jarvay@arvayfinlay.com Counsel for Respondent, Dean Edward Wilson and Shelly Tomic John W. Conroy, Q.C. Conroy & Company 2459 Pauline St Abbotsford, British Columbia V2S 3S1 Telephone: (604) 852-5110 FAX: (604) 859-3361 E-mail: jconroy@johnconroy.com Counsel for Respondent/Appellant on Cross- Appeal, Vancouver Area Network of Drug Users (VANDU) Craig E. Jones Attorney General of British Columbia 1001 Douglas Street, 6th floor Victoria, British Columbia V8V 1X4 Telephone: (250) 387-3129 FAX: (250) 356-9154 E-mail: craigjones@gov.bc.ca Counsel for Respondent, the Attorney General of British Columbia Hugo Jean Procureur general du Quebec 1200 Route de l'Èglise, 2e etage Ste-Foy, Quebec G1V 4M1 Telephone: (418) 643-1477 FAX: (418) 644-7030 E-mail: hjean@justice.gouv.qc.ca Counsel for Intervener, Attorney General of Quebec Jeffrey W. Beedell McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: jeffbeedell@mcmillan.ca Agent for Respondent, Dean Edward Wilson and Shelly Tomic Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP 2600 - 160 Elgin St P.O. Box 466, Stn "D" Ottawa, Ontario KIP 1C3 Telephone: (613) 233-1781 FAX: (613) 788-3433 E-mail: henry.brown@gowlings.com Agent for Respondent/Appellant on Cross- Appeal, Vancouver Area Network of Drug Users (VANDU) Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A2 Telephone: (613) 566-2058 FAX: (613) 235-4430 E-mail: rhouston@burkerobertson.com Agent for Respondent, the Attorney General of British Columbia Pierre Landry Noel & Associes 111, rue Champlain Gatineau, Quebec J8X 3R1 Telephone: (819) 771-7393 FAX: (819) 771-5397 E-mail: p.landry@noelassocies.com Agent for Intervener, Attorney General of Quebec 4 Andrew I. Nathanson Fasken Martineau DuMoulin LLP 2900 - 550 Burrard Street Vancouver, British Columbia V6C 0A3 Telephone: (604) 631-4908 FAX: (604) 631-3232 Counsel for Intervener, Dr. Peter AIDS Foundation Ryan D. W. Dalziel Bull, Housser & Tupper LLP 3000 - 1055 West Georgia Street Vancouver, British Columbia V6E 3R3 Telephone: (604) 641-4881 FAX: (604) 646-2671 E-mail: rdd@bht.com Counsel for Intervener, British Columbia Civil Liberties Association Sheila Tucker Davis LLP 2800 Park Place 666 Burrard Street Vancouver, British Columbia V6C 2Z7 Telephone: (604) 643-2980 FAX: (604) 605-3781 E-mail: stuckergdavis.ca Counsel for Intervener, Vancouver Coastal Health Authority Paul F. Monahan Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 Bay Adelaide Centre, Box 20 Toronto, Ontario M5H 2T6 Telephone: (416) 366-8381 FAX: (416) 364-7813 E-mail: pmonahan@fasken.com Counsel for Intervener, Canadian Civil Liberties Association Scott M. Prescott Fasken Martineau DuMoulin LLP 1300 - 55 Metcalfe Street Ottawa, Ontario K1P 6L5 Telephone: (613) 236-3882 FAX: (613) 230-6423 E-mail: sprescott@fasken.com Agent for Intervener, Dr. Peter AIDS Foundation Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP 2600 - 160 Elgin St Ottawa, Ontario K1P 1C3 Telephone: (613) 233-1781 FAX: (613) 563-9869 E-mail: brian.crane@gowlings.com Agent for Intervener, British Columbia Civil Liberties Association Marie-France Major McMillan LLP 300 - 50 O'Connor Street Ottawa, Ontario K113 6L2 Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: mane-france.maior@mcmillan.ca Agent for Intervener, Vancouver Coastal Health Authority Julia Kennedy Fasken Martineau DuMoulin LLP 55 Metcalfe Street Suite 1300 Ottawa, Ontario K1P 6L5 Telephone: (613) 236-3882 FAX: (613) 230-6423 E-mail: ikennedy(&fasken.com Agent for Intervener, Canadian Civil Liberties Association Michael A. Feder McCarthy Tétrault LLP Suite 1300, 777 Dunsmuir Street Vancouver, British Columbia V7Y 1 K2 Telephone: (604) 643-5983 FAX: (604) 622-5614 E-mail: mfeder(qmccarthv.ca Counsel for Intervener, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal Rahool P. Agarwal Ogilvy Renault LLP 3800 - 200 Bay Street Toronto, Ontario M5J 2Z4 Telephone: (416) 216-3943 FAX: (416) 216-3930 E-mail: ragarwal(iogilvyrenaul1.com Counsel for Intervener, Canadian Nurses Association, Registered Nurses' Association of Ontario and Association of Registered Nurses of British Columbia Owen M. Rees Stockwoods LLP 77 King Street West Suite 4130, P.O. Box 140 Toronto, Ontario M5K IHI Telephone: (416) 593-7200 FAX: (416) 593-9345 E-mail: owenr~stockwoods.ca Counsel for Intervener, Canadian Public Health Association 5 Brenda C. Swick McCarthy Tétrault LLP 200 - 440 Laurier Avenue West Ottawa, Ontario KIR 7X6 Telephone: (613) 238-2000 FAX: (613) 563-9386 Agent for Intervener, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal Sally A. Gomery Ogilvy Renault LLP 1500 - 45, O'Connor Street Ottawa, Ontario KIP lA4 Telephone: (613) 780-8661 FAX: (613) 230-5459 E-mail: sgomery(qogilvyrenaul1.com Agent for Intervener, Canadian Nurses Association, Registered Nurses' Association of Ontaro and Association of Registered Nurses of British Columbia Dougald E. Brown Nelligan O'Brien Payne LLP 1500 - 50 O'Connor S1. Ottawa, Ontario KIP 6L2 Telephone: (613) 231-8210 FAX: (613) 788-3661 E-mail: dougald.brown(inelligan.ca Agent for Intervener, Canadian Public Health Association Marjorie Brown Victory Square Law Office 100 West Pender Street Suite 500 Vancouver, British Columbia V6B 1R8 Telephone: (604) 684-8421 FAX: (604) 684-8427 E-mail: mbrown(avslo.ca Counsel for Intervener, British Columbia Nurses' Union Michael A. Chambers Maclaren Corlett 50 O'Connor Street, Suite 1625 Ottawa, Ontario KIP 6L2 Telephone: (613) 233-1146 FAX: (613) 233-7190 E-mail: mchambers(amacorlaw.com Counsel for Intervener, Real Women Canada 6 Colleen Bauman Sack Goldblatt Mitchell LLP 500 - 30 Metcalfe St. Ottawa, Ontario KIP 5L4 Telephone: (613) 235-5327 FAX: (613) 235-3041 E-mail: cbauman~sgmlaw.com Agent for Intervener, British Columbia Nurses' Union TABLE OF CONTENTS Part I — Statement of Facts ........................................................................................................... .1 A. Overview ......................................................................................................................... 1 B. CMA's Interest in the Appeal ............................................................................................ 1 C. CMA's Position on the Facts ............................................................................................ 1 Part II — Statement of the Questions in Issue ................................................................................3 Part III — Statement of Argument .................................................................................................3 A. Charter Interpretation Must be Guided by Reality, Not Ideology ......................................... 3 B. The Impugned Provisions Infringe Section 7 of the Charter ................................................. 5 (1)Denying Access to Necessary Health care Infringes Section 7 of the Charter.................. 5 (2)The Rights to Life and Security of Patients Have Been Infringed ................................... 5 (3)Drug Addicts Have Not Waived Their Statutory and Constitutional Right to Treatment .................................................................................................................. 6 (4)The Rights to Liberty of the Individual Respondents Have Been Infringed ..................... 8 (5)The Principles of Fundamental Justice Have Not Been Respected ................................. 8 a) The Impugned Provisions Are Arbitrary ..................................................................... 8 b) The Impugned Provisions Are Overbroad ................................................................... 9 C. If There is an Infringement of Section 7, the Law is Not Saved by Section 1 of the Charter ................................................................................................................................ 9 D. Remedy ......................................................................................................................... 10 Part IV — Submissions as to Costs .............................................................................................. 10 Part V — Order Sought ................................................................................................................10 Part VI — Table of Authorities .................................................................................................... 11 Part VII — Statutes, Regulations, Rules ...................................................................................... 13 PART I — STATEMENT OF FACTS A. Overview 1. Fair and equitable access to medically necessary, evidenced-based health care is of fundamental importance to Canadian patients and physicians, as this Court recognized in Chaoulli. 2. Where life and security of a person is at risk because of a medical condition, like drug addiction, the Court's delineation of a government or legislature's constitutional obligations should be guided by facts. Unfounded ideological assumptions about the character of patients must not trump clinical judgment based on the best medical evidence available; otherwise, the life, liberty and security of patients is put at risk arbitrarily, contrary to section 7 of the Charter. 3. The Appellants' position that those addicted to drugs have foregone any right to access medical treatment is antithetical to the raison d'être of the Canadian health care system and inconsistent with the federal government's obligations under section 7 of the Charter. 4. Neither the statutory law nor the Constitution allows the state to deny access to health care because of "lifestyle" choices or presumed waiver of legal or constitutional rights. B. CMA's Interest in the Appeal 5. The Canadian Medical Association ("CMA") is the national voice of Canadian physicians with over 74,000 members across the country. Its mission is to serve and to unite the physicians of Canada and to be the national advocate, in partnership with the people of Canada, for the highest standards of health and heath care. 6. Critical to CMA's role is the upholding of harm reduction as one pillar in a comprehensive public health approach to disease prevention and health promotion. Further, the CMA possesses a distinct expertise and broad-based knowledge of many aspects of policy and law concerning harm reduction as a clinically mandated and ethical method of care and treatment. C. CMA's Position on the Facts 7. By Order dated February 17, 2011, the CMA was granted leave to intervene in this Appeal. 2 8. The CMA accepts the facts as stated by the Respondents. 9. This appeal flows from separate actions commenced by some of the Respondents seeking relief that would obviate the need for exemptions granted by the Federal Minister of Health under section 56 of the Controlled Drugs and Substances Act (the "Act"), S.C. 1996 c. 19. Thus, when within the confines of the Vancouver Safe Injection Site ("Insite"), patient drug users were not liable to prosecution for possession of a controlled substance contrary to section 4(1) of the Act, or staff for trafficking contrary to section 5(1). The initial exemptions, based on "necessity for a scientific purpose", were granted for a term of three years commencing September 12, 2003. They were thereafter extended to December 31, 2007, and then to June 30, 2008. Insite's ability to operate was dependent upon the exemptions. However, no further extensions were forthcoming. 10. In their actions, the Respondents, in addition to the division of powers argument, contended that sections 4(1) and 5(1) of the Act violated section 7 of the Charter, were unconstitutional, and should be struck down. The Respondents were successful before the Applications Judge and the Court of Appeal. 11. The Applications Judge found that sections 4(1) and 5(1) of the Act infringed section 7 of the Charter and declared them to be of no force and effect. 12. On appeal by the Attorney General of Canada and cross-appeal by the Respondents, PHS, Wilson and Tomic, the majority of the Court of Appeal found that sections 4(1) and 5(1) of the Act were inapplicable to Insite by reason of the application of the doctrine of interjurisdictional immunity. 13. In concurring reasons, Rowles J.A. also found that sections 4(1) and 5(1) engaged section 7 of the Charter and that such application did not accord with the principles of fundamental justice because of overbreadth. 14. The findings of the Applications Judge and Rowles J.A. under the Charter are, the CMA submits, premised on the correct and supported fact that harm reduction is an evidenced-based form of medical treatment for patient drug addicts suffering from the illness of addiction. It is unconstitutional for governments to prevent access to treatment on pain of criminal penalty and deprivations of life, liberty and security of the person on grounds informed by ideological 3 assumptions and not the evidence. PART II - STATEMENT OF THE QUESTIONS IN ISSUE 15. The following constitutional questions, as stated by the Chief Justice on September 2, 2010, are to be determined in this appeal: 1. Are ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act, S.c. 1996, c. 19, constitutionally inapplicable to the activities of staff and users at Insite, a health care undertaking in the Province of British Columbia? 2. Does s. 4(1) of the Controlled Drugs and Substances Act, S.c. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? 3. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 4. Does s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, infringe the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? 5. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 16. Questions two to five, which relate to the Charter, are of particular importance for the CMA, and are addressed in more detail below. The CMA submits that sections 4(1) and 5(1) of the Act infrnge the rights guaranteed by section 7 of the Charter and are not justified under section 1. PART III - STATEMENT OF ARGUMENT A. Charter Interpretation Must be Guided by Reality, Not Ideology 17. When determining whether or not impugned legislation infringes the Charter, courts must not play host to political debates, but instead must rise above them by ensuring that public policy passes constitutional muster. Chaoull v. Québec (Attorney General), (2005) 1 S.c.R. 791, at para. 89 (CMA Authorities, Tab 2). R. v. Morgentaler, (1988)1 S.C.R. 30 at 45-46 (CMA Authorities, Tab 13). 18. The Appellants' position is clearly premised on ideological preconceptions with regard to individuals suffering from addictions. Yet, as the history of birth control legislation in Canada shows, a legal framework informed by ideological assumptions about the morality of patients seeking to control their reproduction can violate a person's most fundamental rights. See R. v. Morgentaler, supra at 62 where the Court rejected arguments that it should assess administrative structures in the abstract: "when denial of a right as basic as security of the person is infringed by the procedure and administrative structures created by the law itself, the courts are empowered to act" (CMA Authorities, Tab 13). 4 19. In order for the courts to meet their role in determining whether a particular piece of legislation is constitutional, it must consider Parliament's enactments by relying on the available evidence. In fact, it is well established that a deprivation of the rights to life, liberty or security of the person must be proven by solid evidence. Taylor, M. and Jamal, M., The Charter of Rights in Litigation, loose-leaf (Canada Law Book: Aurora, 2010) at para. 17:15 [CMA Authorities, Tab 20]. 20. The presentation of facts is not a mere technicality, but rather it is essential to a proper consideration of Charter issues: Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the results of the possible decisions pertaining to it may be of great assistance to the courts. MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361 [CMA Authorities, Tab 5]. 21. Specifically, with respect to section 7 of the Charter, this Court has confirmed that the task of the courts is to evaluate the issue in "the light, not just of common sense or theory, but of the evidence". The Court dispenses with unsubstantiated theoretical arguments, relying instead on empirical and scientific evidence presented by the parties: In support of this contention, the government called experts in health administration and policy. Their conclusions were based on the "common sense" proposition that the improvement of health services depends on exclusivity (R.R., at p. 591). They did not profess expertise in waiting times for treatment. Nor did they present economic studies or rely on the experience of other countries. They simply assumed, as a matter of apparent logic, that insurance would make private health services more accessible and that this in turn would undermine the quality of services provided by the public health care system. The appellants, relying on other health experts, disagreed and offered their own conflicting "common sense" argument for the proposition that prohibiting private health insurance is neither necessary nor related to maintaining high quality in the public health care system. Quality public care, they argue, depends not on a monopoly, but on money and management. They testified that permitting people to buy private insurance would make alternative medical care more accessible and reduce the burden on the public system. The result, they assert, would be better care for all [...] To this point, we are confronted with competing but unproven "common sense" arguments, amounting to little more than assertions of belief. We are in the realm of theory. But as discussed above, a theoretically defensible limitation may be arbitrary if in fact the limit lacks a connection to the goal. This brings us to the evidence called by the appellants at trial on the experience of other developed countries with public health care systems which permit access to private health care. The experience of these countries suggests that there is no real connection in fact between prohibition of health insurance and the goal of a quality public health system. 5 Chaoulli, supra at paras. 136-149 (see also paras. 115, 117, 136-149, 150, 152 where the Court refers to Statistics Canada studies and evidence from other western democracies) [CMA Authorities, Tab 2]. See also Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 601-602 [CMA Authorities, Tab 16]. 22. Drug addicts suffer from a medical condition that can be treated. Hence, Insite is designed as a health treatment aimed at reducing the harmful consequences of drug use as well as exposing its vulnerable patients to other health care options. In this context, the federal legislation and government actions at issue amount to a denial of evidence-based medical treatment whose effect is to put the life and security of patients at great risk. 23. Charter interpretation should generally be grounded on fact rather than speculation or ideological assumptions, especially where life and security of the person (i.e., the patient) is at risk because of a medical condition (such as addiction). In such cases, the Court's delineation of the state's constitutional obligations should be guided by evidence-based medicine and independent clinical judgment. Chaoulli, supra at paras. 85, 107 [CMA Authorities, Tab 2]. See also Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 452-454 [CMA Authorities, Tab 7]; Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, at para. 66 [CMA Authorities, Tab 1]. 24. Accordingly, CMA submits that, at the very least, in the health care field where lives are at risk, there must be sound evidentiary basis for legislative and government action that deny medical care. B. The Impugned Provisions Infringe Section 7 of the Charter (1) Denying Access to Necessary Health care Infringes Section 7 of the Charter 25. While the legislature is generally entitled to enact legislation prohibiting drug use or trafficking, this legislation (however well-intended) cannot have the effect of putting the lives of affected persons at risk. This Court has already found in Chaoulli that section 7 of the Charter was infringed when governments impeded timely patient access to care. (2) The Rights to Life and Security of Patients Have Been Infringed 26. Both the Applications Judge and the Court of Appeal found that the right to life and security was engaged in the present case. The evidence on these issues was plentiful: 1. Addiction is an illness. One aspect of the illness is the continuing need or craving to consume the substance to which the addiction relates; 6 2. Injection drug use leads to an increased incidence and prevalence of infectious diseases including HIV/AIDS, Hepatitis A, B and C, and skin- and blood-borne infections; frequent drug overdoses resulting in significant morbidity and mortality; increased hospital and emergency service utilization; 3. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals at Insite; 4. User of Insite who are addicted to heroin, cocaine and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose. Reasons for Judgment of the Applications Judge, paras. 87, 89, 135-136, Appellants' Record, Vol. I, pp. 24-25, 34. See also Reasons for Judgment of the B.C. Court of Appeal, para. 30, Appellants' Record, Vol. I, p. 65. (3) Drug Addicts Have Not Waived Their Statutory and Constitutional Right to Treatment 27. The Appellants did not really dispute the medical evidence to the effect that addiction to drugs was a disease. They sought instead to justify their position by claiming that drug addicts had "chosen" their lifestyle and were solely responsible for their medical condition. For the following reasons, this "rationale" does not pass constitutional muster. 28. The Appellants assert that the section 7 rights are not engaged as they stem from an alleged "choice made by the consumer", relying on the fact that 95% of the injections in the downtown east side of Vancouver do not take place at Insite. The Appellants do not explain how this assertion demonstrates why addicts are able to make a choice not to inject themselves, given that it only addresses where they inject themselves. In any event, contrary to the Appellants' choice theory, the evidence before the Applications Judge and his findings were to the contrary: the reasons for the addiction and resulting need are based on a complicated combination of personal, governmental and legal factors, some of which lend themselves to choice and others that do not.' Further, the Applications Judge found that it is the illness of addiction, and the failure to manage it, that has led to further illness and death. Reasons for Judgment of the Applications Judge, paras. 65, 89, 142, Appellants' Record, Vol. I, pp. 21, 24-25, 35. See also Reasons for Judgment of the B.C. Court of Appeal, para. 39, Appellants' Record, Vol. I, p. 67. Contra the facts in R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 [Malmo-Levine] [CMA Authorities, Tab 12]. 29. The Appellants' position amounts to a claim that the users of Insite have effectively waived their constitutional rights under section 7. Notwithstanding that the jurisprudence is In fact, the evidence is clear that in the case of the Respondent Tomic, her first experience with illegal drugs was not a personal choice [Reasons for Judgment of the Applications Judge, para. 65, Appellants' Record, Vol. I, p. 21]. 7 unclear as to whether a right under section 7 can actually be waived, it is well established that a waiver or a renunciation of any right under the Charter must be voluntary, freely expressed and accompanied with a clear understanding of the purpose the right was meant to serve and the consequences of declining its protection. There is no evidence whatsoever that the patients of Insite who suffer from addiction, knowingly and unequivocally waived their rights under the Charter, and more specifically their right to access medical treatment. See e.g. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at paras. 71-72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, at paras. 96-102; R. v. Richard, [1996] 3 S.C.R. 525, at paras. 22-26; R. v. L.T.H., [2008] 2 S.C.R. 739, at paras. 41-42; R. v. Clarkson, [1986] 1 S.C.R. 383 at 394-396; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at 49; Yorkton Union Hospital v. S.U.N. (1993), 16 Admin. L.R. (2d) 272, at para. 44 (C.A.) [CMA Authorities, Tabs 3, 17, 15, 11, 8, 4, 18 respectively]. 30. Indeed, Canadians do not forego their right to health care or to protection from section 7 violations because of their "choice" of lifestyles. The Appellants' position that addicts must take responsibility for the choice they make undermines the raison d'être of the Canadian health care system, namely (as found by the Applications Judge and the Court of Appeal) the fundamental right of Canadians to access medical treatment and the ethical and clinical responsibilities of their health care providers. 31. The Appellants' position skirts the clinical question at issue for physicians and their patients: physicians must treat patients as a matter of good medical practice and ethical obligation, whether the patient is believed to contribute to his or her injury or not. In Canada, neither the ethical obligations of physicians to treat patients, nor the patients' legal right to treatment, are subject to a moral assessment of a patient's lifestyle. Behaviours that might be deemed "risky" do not deprive patients of their rights of access to clinically required medical care. 32. Section 31 of CMA's Code of Ethics (relied on by the Court in the past e) provides that all physicians must "[r]ecognize the responsibility of physicians to promote fair access to health care resources". The patients at Insite would be deprived of positive health outcomes if Insite were to close or even continue to operate under the ongoing threat of closure. 33. Adopting the Appellants' approach to Charter interpretation would set an extremely dangerous precedent. Thus, if one were to apply the rationale of "choice" to other medical 2 See e.g. R. v. Dersch, [1993] 3 S.C.R. 768 at 784-785, where the Court refers to CMA's Code of Ethics [CMA Authorities, Tab 9]. 8 contexts, such as chronic disease, patients suffering from diabetes because of contributing factors such as poor nutrition and lack of exercise would, under the same logic, be denied medical care. Indeed, many of the complex elements beyond individual choice such as socio-economic and genetic factors found by the Applications Judge in the case at bar to shape addiction as an ilness are prevalent in other diseases. This approach would be not only unethical and clinically unsound, but unconstitutionaL. (4) The Rights to Liberty of the Individual Respondents Have Been Infringed 34. The courts have recognized that the threat of criminal prosecution and possibility of imprisonment for an offence is suffcient to trigger the liberty interest and scrutiny under section 7. Malmo-Levine, supra at para. 84 ICMA Authorities, Tab 12). R. v. Parker (2000),188 D.L.R. 4th 385, at para. 101 (Ont. C.A.) ICMA Authorities, Tab 14). 35. Vulnerable patients suffering from addiction and the health care providers who provide treatment at Insite suffer violations of their constitutionally guaranteed rights (section 7 of the Charter) because of the threat of prosecution under the Act. The uncertainty associated with a ministerial exemption mechanism for Insite from certain provisions of the Act imposes a great burden on those already labouring under the weight of addiction. Moreover, health care providers are also put at risk in their ability to provide medically necessary and evidence-based health care services in a timely manner to all citizens by the capricious exemption mechanism contained in the Act. (5) The Principles of Fundamental Justice Have Not Been Respected 36. It is well established that a law that is arbitrary or overbroad will constitute a breach of the principles of fundamental justice. The CMA submits that the Applications Judge was correct when he found that the impugned provisions were arbitrary, or if not arbitrary, grossly disproportionate and overbroad. The Court of Appeal agreed that the provisions were overbroad. P. Hogg, Constitutional Law of Canada, 5th ed., loose-leaf (Carswell: Toronto, 2007) at 47-52 to 47-60.1 ICMA Authorities, Tab 19). R. v. Heywood, (1994) 3 S.c.R. 761 at 792-794 ICMA Authorities, Tab 10). Chaoull, supra at para. 127 ICMA Authorities, Tab 2). Rodriguez, supra at 590-591 ICMA Authorities, Tab 16). a) The Impugned Provisions Are Arbitrary 37. A law is arbitrary when it bears no relation to, or is inconsistent with, the objective that 9 lies behind it. In order not to be arbitrary, a limit on the section 7 right requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. Chaoulli, supra at paras. 130-131 [CMA Authorities, Tab 2]. 38. In the present case, by prohibiting access to evidence-based, medically necessary care, the government has contributed to the very harm it claims it seeks to prevent, i.e. drug possession and addiction. The best available medical evidence suggests that clinics such as Insite not only protect life, but offer positive health outcomes and care alternatives to vulnerable patients. 39. Moreover, the justification of any denial of access to necessary medical care based on ideology rather than facts is arbitrary since, by definition, it bears no real connection to the facts. b) The Impugned Provisions Are Overbroad 40. It is a well-established principle of fundamental justice that criminal legislation must not be overbroad. If the government, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated. Heywood, supra at 792-793 [CMA Authorities, Tab 10]. See also Malmo-Levine, supra at paras. 130-131 [CMA Authorities, Tab 12]. 41. A fortiori, that will be true when the state itself has a particular interest in acting to protect vulnerable persons. In the present case, the evidence before the Applications Judge demonstrated that harm reduction has been a component of Canada's drug strategy for many years. In 2002, the House of Commons Special Committee on the Non-Medical Use of Drugs rejected the dichotomy between harm reduction and an abstinence-based treatment model. It also specifically considered the creation of a safe injection facility in the downtown east side of Vancouver because it recognized that that community presented a "public health disaster". 42. Hence, while the government may be justified in preventing drug possession and trafficking, it cannot cast a legislative prohibition so widely that it captures persons in need of medical care. C. If There is an Infringement of Section 7, the Law is Not Saved by Section 1 of the Charter 43. Should the Court find that sections 4(1) and 5(1) of the Act infringe the rights guaranteed Guy Pratt /Nadia ffend Borden L dner Gervais L 1 0 by section 7 of the Charter, the CMA submits that the provisions cannot be justified under section 1 of the Charter as any law that offends the principles of fundamental justice cannot be justified, and more specifically, meet the minimal impairment branch of the section 1 analysis. See e.g. New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99 [CMA Authorities, Tab 6]; Heywood, supra at 802-803 [CMA Authorities, Tab 10]. D. Remedy 44. Fundamental justice requires either permanent exemptions or a declaration that the impugned law, as it applies to users of supervised injection sites, is invalid. The CMA submits that this position is consistent with sound constitutional interpretation of section 7 of the Charter, while protecting the most vulnerable patient populations in accordance with evidence-based medicine and physicians' ethical obligations. PART IV — SUBMISSIONS AS TO COSTS 45. The CMA seeks no costs and asks that none be awarded against it. PART V — ORDER SOUGHT 46. The CMA submits that constitutional questions two and four should be answered affirmatively. Should the Court answer these questions in the affirmative, however, constitutional questions three and five should be answered negatively. 47. The CMA seeks leave of this Court, pursuant to rule 59(2) of the Rules of the Supreme Court of Canada, to present oral argument at the hearing of this appeal. Rules of the Supreme Court of Canada, SOR/83-74, as amended, Rule 59(2) [Part VII of Factum]. ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 13th DAY OF APRIL, 2011. OTTO1 \ 4423086 \ 7 11 PART VI — TABLE OF AUTHORITIES TAB SOURCES Paras. in factum where cited Cases 1. Auton (Guardian a litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 23 2. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 17, 21, 23, 36, 37 3. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 29 4. Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 29 5. MacKay v. Manitoba, [1989] 2 S.C.R. 357 20 6. New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 43 7. Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 23 8. R. v. Clarkson, [1986] 1 S.C.R. 383 29 9. R. v. Dersch, [1993] 3 S.C.R. 768 32 10. R. v. Heywood, [1994] 3 S.C.R. 761 36, 40, 43 11. R. v. L.T.H., [2008] 2 S.C.R. 739 29 12. R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 28, 34, 40 13. R. v. Morgentaler, [1988] 1 S.C.R. 30 17, 18 14. R. v. Parker (2000), 188 D.L.R. 4th 385 (Ont. C.A.) 34 15. R. v. Richard, [1996] 3 S.C.R. 525 29 16. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 21, 36 17. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 29 18. Yorkton Union Hospital v. S. UN. (1993), 16 Admin. L.R. (2d) 272 (Sask. C.A.) 29 12 TAB SOURCES Paras. where in factum cited Secondary Sources 19. Hogg, P., Constitutional Law of Canada, 5th ed., loose-leaf (Carswell: Toronto, 2007) at 47-52 to 47-60.1. 36 20. Taylor, M. and Jamal, M., The Charter of Rights in Litigation, loose-leaf (Canada Law Book: Aurora, 2010) at para. 17:15 19 13 PART VII — STATUTES, REGULATIONS, RULES
Canadian Charter of Rights and Freedom, sections 1 and 7
Controlled Drugs and Substances Act, S.C. 1996, c. 19, sections 4(1), 5(1), 56
Rules of Supreme Court of Canada, SOR/83-74, as amended, Rule 59 14 Canadian Charter of Rights and Freedoms PART I OF THE CONSTITUTION ACT, 1982 Charte canadienne des droits et libertes PARTIE I DE LA LOI CONSTITUTIONNELLE DE 1982 Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms 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. Life, liberty and security of person 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. Droits et libertes au Canada 1. La Charte canadienne des droits et libertes garantit les droits et libertós qui y sont enonces. Its ne peuvent etre restreints que par une regle de droit, dans des limites qui soient raisonnables et dont la justification puisse se demontrer dans le cadre d'une society libre et democratique. Vie, liberte et securite 7. Chacun a droit a la vie, a la liberte et a la securite de sa personne; it ne peut etre porte atteinte a ce droit qu'en conformite avec les principes de justice fondamentale. 15 Controlled Drugs and Substances Act S.C. 1996, c. 19 Possession of substance 4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III. Trafficking in substance 5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. Exemption by Minister 56. The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Loi reglementant certaines drogues et autres substances L.C. 1996, ch. 19 Possession de substances 4. (1) Sauf dans les cas autorises aux termes des reglements, la possession de toute substance inscrite aux annexes I, II ou III est interdite. Trafic de substances 5. (1) Il est interdit de faire le trafic de toute substance inscrite aux annexes I, II, III ou IV ou de toute substance presentee ou tenue pour telle par le trafiquant. Exemption par le ministre 56. S'il estime que des raisons medicales, scientifiques ou d'interet public le justifient, le ministre peut, aux conditions qu'il fixe, soustraire a l'application de tout ou partie de la presente loi ou de ses reglements toute personne ou categorie de personnes, ou toute substance designee ou tout precurseur ou toute categorie de ceux-ci. 16 Rules of the Supreme Court of Canada (in force on October 13, 2006) Regles de la Cour supreme du Canada. (en vigueur le 13 octobre 2006) 59. (1) In an order granting an intervention, the judge may (a) make provisions as to additional disbursements incurred by the appellant or respondent as a result of the intervention; and (b)impose any terms and conditions and grant any rights and privileges that the judge may determine, including whether the intervener is entitled to adduce further evidence or otherwise to supplement the record. (2)In an order granting an intervention or after the time for filing and serving all of the memoranda of argument on an application for leave to appeal or the facta on an appeal or reference has expired, a judge may, in their discretion, authorize the intervener to present oral argument at the hearing of the application for leave to appeal, if any, the appeal or the reference, and determine the time to be allotted for oral argument. (3)An intervener is not permitted to raise new issues unless otherwise ordered by a judge. 59. (1) Dans l'ordonnance octroyant l'autorisation d'intervenir, le juge petit : a) prevoir comment seront supportes les &pens supplementaires de l'appelant ou de l'intime resultant de l'intervention; b) imposer des conditions et octroyer les droits et privileges qu'il determine, notamment le droit d'apporter d'autres elements de preuve ou de completer autrement le dossier. (2)Dans l'ordonnance octroyant l'autorisation d'intervenir ou aprês l'expiration du Mai de depOt et de signification des memoires de demande d'autorisation d'appel, d'appel ou de renvoi, le juge peut, a sa discretion, autoriser l'intervenant a presenter une plaidoirie orale a l'audition de la demande d'autorisation d'appel, de l'appel ou du renvoi, selon le cas, et determiner le temps alloue pour la plaidoirie orale. (3) Sauf ordonnance contraire d'un juge, l'intervenant n'est pas autorise a soulever de nouvelles questions.

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Position statement on bodychecking in youth ice hockey

https://policybase.cma.ca/en/permalink/policy10758

Last Reviewed
2020-02-29
Date
2013-05-25
Topics
Population health/ health equity/ public health
  1 document  
Policy Type
Policy endorsement
Last Reviewed
2020-02-29
Date
2013-05-25
Topics
Population health/ health equity/ public health
Text
Hockey is one of the most popular sports for Canadian children and youth. While the health benefits of physical activity and sport participation are well recognized, there is increasing concern around the frequency and severity of hockey-related injuries, particularly concussion. Studies consistently identify bodychecking as the primary mechanism associated with youth hockey injuries, including concussion. Policy to delay bodychecking until bantam league play (when participants are 13 to 14 years of age) will reduce the risks of injury and concussion in young ice hockey players. Bodychecking should be eliminated from non-elite youth ice hockey. The age at which bodychecking is introduced in competitive hockey leagues must be reconsidered. Both initiatives require policy change in many provinces/territories, and must be re-evaluated prospectively in light of emerging research. More than 4.5 million Canadians are involved in ice hockey, as coaches, officials, administrators or direct volunteers, and hockey is the most popular winter sport among Canadian children and youth.[1] Hockey Canada reported over 550,000 registered players under the age of 19 in 2008, and participation rates are increasing, especially among girls and young women.[1] While the health benefits of physical activity and sport participation are well recognized, there is increasing concern around the frequency and severity of hockey-related injuries in youth, particularly concussion. The American Academy of Pediatrics (AAP) classifies hockey as a collision sport because of unintentional and intentional body contact, including bodychecking.[2] The AAP published a policy statement on youth ice hockey in 2000, recommending that bodychecking not be allowed for children younger than 15 years of age.[3] There is passionate debate about the risk factors for injury in youth hockey and the relative merits of early or later introduction of bodychecking. Because bodychecking is not allowed in girls' or women's hockey in Canada, the present statement pertains to play in boys' and men's hockey leagues. It reviews the scientific literature on bodychecking injuries, outlines positions in the current debate and makes recommendations on when bodychecking should be introduced into the game. DEFINING BODY CONTACT AND BODYCHECKING Body contact is an individual defensive tactic designed to legally block or impede the progress of an offensive puck carrier. The defensive player moves to restrict action by the puck carrier anywhere on the ice, by skating, angling and positioning. The defensive player cannot hit the offensive player by travelling in an opposite direction to him or by physically extending toward him in an effort to initiate contact. There must be no action where the puck carrier is pushed, hit or shoved into the boards. In contrast, bodychecking is an individual defensive tactic designed to legally separate the puck carrier from the puck. The defensive player physically extends his body toward the puck carrier while moving in an opposite or parallel direction, a deliberate and forceful move not solely determined by the movement of the puck carrier.[1] Bodychecking is taught based on a four-step skill development program outlined by Hockey Canada, with progression through positioning and angling, stick checking, body contact and bodychecking skills.[4] Instruction in bodychecking includes techniques for receiving bodychecks, adhering to rules, and safe play. BODYCHECKING LEGISLATION Hockey Canada groups children and adolescents by age into six play levels: initiation (5 to 6 years of age), novice (7 to 8 years), atom (9 to 10 years), peewee (11 to 12 years), bantam (13 to 14 years), and midget (15 to 17 years). Historically, from the early 1980s until the 2002/2003 season, bodychecking was introduced at age 12 years in Canadian boys' ice hockey. In 2003, four of 13 provincial/territorial branches allowed checking for players as young as nine years old. Hockey Canada mandated the introduction of bodychecking in peewee leagues (ages 11 to 12) in 2009. Quebec has delayed bodychecking until bantam (age 14 from 1978 to 2002, then age 13 following an age change mandated nationally). THE DEBATE Despite lack of evidence, proponents of bodychecking argue that it is a fundamental skill which, learned early, may prevent future injuries. However, the evidence supports that bodychecking is the most common mechanism of injury. The Canadian Academy of Sports Medicine recommends that bodychecking be introduced only in boys' competitive hockey, and no earlier than the bantam (ages 13 to14) or midget (ages 15 to 17) level.[5] The AAP recommends a ban on bodychecking for male players younger than 15 years of age.[3] The present statement marks the first CPS position on this issue. BODYCHECKING AND INJURY Hockey is recognized as a high-risk sport. The speed of play, body contact and bodychecking all contribute to injury risk.[6][7] The injury rate is also high, with Canadian data suggesting that hockey injuries account for 8% to 11% of all adolescent sport-related injuries.[8][10] Unfortunately, serious injuries such as concussion, other brain injuries and spinal cord trauma are not uncommon in hockey.[6][11] The incidence of traumatic brain injury appears to be rising.[12][13] Ice hockey-related fatality rates are double those reported in American football, and catastrophic spinal cord and brain injury rates are almost four times higher for high school hockey players than for high school and college football players.[14][15] Bodychecking is the predominant mechanism of injury among youth hockey players at all levels of competition where it is permitted, accounting for 45% to 86% of injuries.[8][16]-[18] Several published studies, including two recent systematic reviews, reported on risk factors for injury (including bodychecking) in youth hockey.[19][20] Emery and colleagues conducted a systematic review of 24 studies and a meta-analysis including only studies which examined policy allowing bodychecking as a risk factor for injury. Policy allowing bodychecking was found to be a risk factor for all hockey injuries, with a summary incidence rate ratio (IRR) of 2.45 (95% CI 1.7 to 3.6). Furthermore, policy allowing bodychecking was found to be a risk factor for concussion, with a summary OR of 1.71 (95% CI 1.2 to 2.44). These data confirm that bodychecking increases the risk of all injuries and the risk of concussion specifically.[20] Nine of ten studies examining policy allowing bodychecking provided evidence to support a greater risk in bodychecking leagues.[20] The second systematic review found the RR of injury associated with policy allowing bodychecking ranged from 0.6 to 39.8; all but one of these studies found an increased risk of injuries associated with bodychecking.[19] Since the publication of these systematic reviews there have been five additional studies. A Canadian prospective cohort study compared injury rates between peewee ice hockey players in a league where bodychecking is permitted at age 11 years (Alberta) versus players in a league where bodychecking is not permitted until age 13 (Quebec).[21] During the 2007/2008 season, a validated injury surveillance system was used to capture all injuries requiring medical attention and/or time loss from hockey (ie, time between injury and return to play) in 2154 players. There was a threefold increased risk of all game-related injuries (IRR =3.26 [95% CI; 2.31 to 4.60]) and of injury resulting in >7 days time lost from sport (IRR=3.30 [95% CI; 1.77 to 6.17]) in 11- to 12- year-old peewee players from Alberta when compared with Quebec. There was also an almost fourfold increased risk of game-related concussion (IRR=3.88 [95% CI; 1.91 to 7.89]) in Alberta peewee players.[21] Further evidence was reported in a five-year cohort study (2002 to 2007) including all age groups, which demonstrated that injury risk increases 3.75 times (IRR=3.75 [95% CI; 1.51 to 9.74]) in leagues that allow bodychecking compared with those that do not.[22] A second prospective cohort study by Emery et al examined whether the introduction of bodychecking at 11 years of age (Alberta) or 13 years of age (Quebec) affected injury rates in later years (at 13 to 14 years of age).[23] During the 2008/09 season, the same injury surveillance system cited above was used to study 1971 bantam players (13- to 14-year-olds). There was no reduction in game-related injury risk (all injuries) for this age group (IRR=0.85 [95% CI 0.63 to 1.16]), of concussion specifically (IRR=0.84 [95% CI 0.48 to 1.48]), or of concussions resulting in >10 days time lost from sport (IRR=0.6 [95% CI 0.26 to 1.41]) in the Alberta league, compared with Quebec. In fact, the concussion rate found in Alberta peewee players was higher than in bantam players in either province.[22][23] Injuries to bantam players resulting in >7 days time lost from sport were reduced by 33% (IRR=0.67 [95% CI 0.46 to 0.99]) in the Alberta league, where players had had two years of bodychecking experience. However, these findings must be interpreted in light of the three- to fourfold greater injury and concussion risk among peewee players in Alberta, along with a possibly higher 'survival effect' among peewee players moving on to bantam in Quebec when compared with Alberta, where bodychecking is allowed in peewee league play. Recent retrospective studies have examined the influence of policy change based on the Canadian Hospitals Injury Reporting and Prevention Program (CHIRPP) surveillance data. Injury rates among boys presenting to emergency departments in the Kingston, Ontario area both before and after the 2002 rule change to allow bodychecking in younger players, were reported. There was no change between bodychecking injury rates in 1997 to 2002 (with bodychecking introduced at 11 years of age) and 2003 to 2007 (when bodychecking was introduced at nine years of age).[24] Overall rates of injury actually declined over the later period.[24] However, this retrospective study may also be biased by stronger rule enforcement, better coaching certification and temporal declines in emergency department use for this type of injury over that period. In contrast, retrospective research of CHIRPP data from 1994 to 2004 in five Ontario hospitals examined injury risk following a rule change in 1998 that allowed bodychecking in nine- and 10-year-old hockey players. A 2.2 times greater risk of injury in atom players (9 and 10 years of age) after the rule change was reported (OR=2.2 [95% CI 1.7 to 2.84]).[25] Another retrospective study using CHIRPP data (from 1995 to 2002) compared hockey injuries in children 10 to 13 years of age playing in Ontario, where bodychecking was allowed, with data from Quebec, where bodychecking was not allowed. There was a 2.6 times greater risk of bodycheck-related injuries reported for this age group when bodychecking was allowed (OR=2.65 [95% CI 2.21 to 3.18]).[26] OTHER RISK FACTORS After policy that permits bodychecking, the most commonly investigated risk factors for injury in the scientific literature are: age, session-type (ie, a practice versus a game), level of play, player position, physical size, and a previous history of injury and/or concussion. Most studies examining age found that injury risk increased with age;[8][20][27][29] others suggest no elevated injury risk in older age groups.[30]-[33] Relative age has been examined to "describe the potential advantages (or disadvantages) that result from age differences between peers within one age group".[31] One study examining relative age among hockey players found no evidence that younger (or older) players within a grouping were at elevated injury risk.[31] Additional research supports this finding at the peewee level, where no increased risk was found in first-year players. In bantam leagues, however, there was a 40% greater risk of injury in first-year players when compared with players in their second year.[21][23] Based on session-type, injury risk is reported to be consistently higher in games than in practices, with RR estimates ranging from 2.45 to 6.32.[16][18][27][34] One study also indicated that injury rates were higher in regular season play than during preseason, postseason or tournament games.[30] In general, studies examining level of play have found that injury risks rise with increasing skill levels across all age groups.[31][35][36] However, one study reported that only peewee players in the highest skill division were at the greatest risk of injury, with no significant increase by skill level in other age groups.[8] Larger cohort studies confirmed a consistently greater risk of injury among peewee players who were more highly skilled, but this trend was not observed in the bantam age group.[21][23] When examining player position, some researchers found that forwards were at higher risk of injury than defencemen or goalies, [30][32] while others reported the relative risk of injury was 2.18 times higher for defencemen than forwards.[27] In all three studies, goalies were shown to be at much lower risk than other players. Additional research shows a consistent protective effect for goalies at both the peewee and bantam levels.[21][23] Research on player size has shown conflicting results, with some studies citing increased risk for smaller players in some age groups. Prospective Canadian data show a significantly greater risk of injury in peewee players in the lowest 25th percentile by weight, [21] though this finding was not reflected in the bantam cohort.[23] However, additional research has found lighter bantam players to be at greater risk, while other studies report a significant weight difference, at all levels, between players who sustained a bodychecking-related injury and those who did not.[16][30] Other research examining body weight as a risk factor for shoulder injuries found that heavier players were at greater risk for these injuries.[37] One study looked at height as a possible risk factor for injury and found no evidence of effect among bantam players.[16] By contrast, a history of previous injury or concussion is consistently reported as a significant risk factor for reinjury and further concussion, respectively.[20] One recent Canadian peewee cohort study showed that the risk of injury doubled for players who reported being injured within the past year (IRR=2.07 [95% CI 1.49 to 2.86]), while the risk of concussion tripled for players reporting any previous concussion (2.76 [95% CI 1.1 to 6.91]).[21] The bantam cohort also showed greater risk of reinjury and concussion in players reporting previous injury within the past year (IRR=1.39 [95% CI 1.13 to 1.71]) or any previous concussion (IRR=1.87 [95% CI 1.19 to 2.94]), respectively.[21] INJURY PREVENTION AND RISK REDUCTION Injury prevention and risk reduction programs have been implemented but have not been evaluated rigorously. The STOP (Safety Towards Other Players) program (www.safetytowardsotherplayers.com) is supported by the Ontario Minor Hockey Association (www.omha.net), and includes an education component and the "STOP patch", which is sewn on the back of players' uniforms to remind opponents not to hit from behind. A study evaluating another injury prevention program, "Fair Play", which awards points for sportsmanlike play (based on penalty minutes), suggests an approximate 60% reduction in the risk of injury (OR=0.41 [95% CI 0.11 to 1.47]) where the program is in effect, but the results were not statistically significant.[38] EDUCATION Players, parents, coaches, officials and trainers must be mindful of the potential risks of playing hockey. Hockey Canada has player development, coaching, education and safety promotion programs and resources for coaches, officials, players and parents at www.hockeycanada.ca. Concussion awareness is vital. Athletes and all those involved in their care need to know about the risks, symptoms/signs and how to manage concussive injuries. The CPS statement on concussion evaluation and management is essential reading [39], with additional information available from the Canadian Academy of Sport and Exercise Medicine (www.casm-acms.org), ThinkFirst Canada (www.thinkfirst.ca) and the US Centers of Disease Control and Prevention (www.cdc.gov/ncipc/tbi/Coaches_Tool_Kit.htm). CONCLUSION Studies consistently identify bodychecking as the primary mechanism of hockey-related injuries, including concussion. It is expected that delaying the introduction of bodychecking until the bantam level and restricting bodychecking to elite leagues for older age groups will reduce the risks of injury and concussion substantially. Delaying bodychecking until bantam will have a clear benefit in reducing the risks of injury and concussion in young ice hockey players. Bodychecking should be eliminated from recreational youth ice hockey and the age at which it is introduced in competitive hockey leagues should be reconsidered. Both initiatives require policy change in many provinces/territories in Canada, and policy changes will need to be evaluated on a regular basis in light of emerging research. RECOMMENDATIONS The Canadian Paediatric Society recommends the following: * Eliminating bodychecking from all levels of organized recreational/non-elite competitive male ice hockey. (Grade II-2A evidence) * * Delaying the introduction of bodychecking in elite male competitive leagues until players are 13 to 14 years of age (bantam level) or older. (Grade III-C evidence)* * Implementing Hockey Canada's four-stage skill development program for bodychecking (body positioning, angling, stick checking and body contact) for all leagues. * Educating coaches and trainers, schools, and policy-makers in sport about the signs and symptoms of common hockey injuries, especially concussion. * Improving injury surveillance to better identify the risk factors for, and mechanisms of, hockey injuries. * Policies to reduce injury and promote fair play in hockey, for all age groups and league levels. Clinicians who see young hockey players in their practice should offer the following advice: * Girls and young women should continue participating in non-bodychecking leagues. * Boys should play in recreational/non-elite hockey leagues that do not allow bodychecking. * Elite male players should play in hockey leagues that introduce bodychecking later, when players are 13 to 14 years of age (bantam level) or older. * All players should adhere to fair play and a non-violent sport culture. * Parents and caregivers should learn injury prevention and risk reduction strategies, including concussion prevention, recognition and management. *The levels of evidence and strength of recommendations are based on the Canadian Task Force on Preventive Health Care (See Table 1). [40][41] TABLE 1: [SEE PDF] Levels of evidence and strength of recommendations Level of evidence Description I Evidence obtained from at least one properly randomized controlled trial. II-1 Evidence obtained from well-designed controlled trial without randomization. II-2 Evidence obtained from well-designed cohort or case-controlled analytical studies, preferably from more than one centre or research group. II-3 Evidence obtained from comparisons between times and places, with or without the intervention. Dramatic results in uncontrolled experiments could also be included in this category. III Opinions of respected authorities, based on clinical experience, descriptive studies or reports of expert committees. Grade Description A There is good evidence to recommend the clinical preventive action. B There is fair evidence to recommend the clinical preventive action. C The existing evidence is conflicting and does not allow a recommendation to be made for or against use of the clinical preventive action; however, other factors may influence decision-making. D There is fair evidence to recommend against the clinical preventive action. E There is good evidence to recommend against the clinical preventive action. F There is insufficient evidence to make a recommendation; however, other factors may influence decision-making. ACKNOWLEDGEMENTS This statement was reviewed by the Community Paediatrics and Injury Prevention Committees of the Canadian Paediatric Society. Thanks to Drs. Claire MA LeBlanc, Stan Lipnowski, Peter Nieman, Christina G Templeton and Thomas J Warshawski for their input as past members of the CPS Healthy Active Living and Sports Medicine Committee. HEALTHY ACTIVE LIVING AND SPORTS MEDICINE COMMITTEE Members: Catherine Birken MD; Tracey L Bridger MD (Chair); Mark E Feldman MD (Board Representative); Kristin M Houghton MD; Michelle Jackman MD; John F Philpott MD Liaison: Laura K Purcell MD, CPS Paediatric Sports and Exercise Medicine Section Principal authors: Kristin M Houghton MD; Carolyn A Emery PT PhD May 2013 REFERENCES 1. Hockey Canada, Annual report 2008: www.hockeycanada.ca/index.php/ci_id/55192/la_id/1.htm (Accessed July 4, 2012). 2. Rice SG; American Academy of Pediatrics, Council on Sports Medicine and Fitness. Medical conditions affecting sports participation. Pediatrics 2008;121(4):841-8. 3. American Academy of Pediatrics, Committee on Sports Medicine and Fitness. Safety in youth ice hockey: The effects of body checking. Pediatrics 2000;105(3 Pt 1):657-8. 4. Hockey Canada. Teaching checking: A progressive approach. 2002: www.omha.net/admin/downloads/Teaching%20Checking.pdf (Accessed July 4, 2012). 5. Canadian Academy of Sport Medicine. Position Statement: Violence and injuries in ice hockey. 1988. www.casm-acms.org/forms/statements/HockeyViolEng.pdf (Accessed July 4, 2012). 6. Emery CA, Risk factors for injury in child and adolescent sport: A systematic review of the literature. Clin J Sport Med 2003;13(4):256-68. 7. Caine D, Caine C, Maffulli N. Incidence and distribution of pediatric sport-related injuries. Clin J Sport Med 2006;16(6):500-13. 8. Emery CA, Meeuwisse WH. Injury rates, risk factors, and mechanisms of injury in minor hockey [comment]. Am J Sports Med 2006;34(12):1960-9. 9. Emery CA, Meeuwisse WH, McAllister JR. Survey of sport participation and sport injury in Calgary and area high schools. Clin J Sport Med 2006;16(1):20-6. 10. Emery C, Tyreman H. Sport participation, sport injury, risk factors and sport safety practices in Calgary and area junior high schools. Paediatr Child Health 2009;14(7):439-44. 11. Tator CH, Carson JD, Cushman R. Hockey injuries of the spine in Canada, 1966-1996 [comment]. CMAJ 2000;162(6):787-8. 12. Proctor MR, Cantu RC. Head and neck injuries in young athletes. Clin Sports Med 2000;19(4): 693-715. 13. Kelly KD, Lissel HL, Rowe BH, Vincenten JA, Voaklander DC. Sport and recreation-related head injuries treated in the emergency department. Clin J Sport Med 2001;11(2):77-81. 14. Mueller FO, Cantu RC. Catastrophic injuries and fatalities in high school and college sports, fall 1982-spring 1988. Med Sci Sports Exerc 1990;22(6):737-41. 15. Cantu RC, Mueller FO. Fatalities and catastrophic injuries in high school and college sports, 1982-1997: Lessons for improving safety. Phys Sportsmed 1999;27(8):35-48. 16. Brust JD, Leonard BJ, Pheley A, Roberts WO. Children's ice hockey injuries. Am J Dis Child 1992;146(6):741-7. 17. Bernard D, Trudel P. Marcotte G. The incidence, types, and circumstances of injuries to ice hockey players at the bantam level (14 to 15 years old). In: Hoerner E, ed. Safety in Ice Hockey. Philadephia: American Society for Testing and Materials, 1993:44-55. 18. Benson B, Meeuwisse WH. Ice hockey injuries. In: Maffulli N, Caine DJ, eds. Epidemiology of Pediatric Sports Injuries: Team Sports. Basel: S Karger AG, 2005:86-119. 19. Warsh JM, Constantin SA, Howard A, Macpherson A. A systematic review of the association between body checking and injury in youth ice hockey. Clin J Sport Med 2009;19(2):134-44. 20. Emery CA, Hagel B, Decloe M, Carly M. Risk factors for injury and severe injury in youth ice hockey: A systematic review of the literature. Inj Prev 2010;16(2):113-8. 21. Emery CA, Kang J, Shrier I, et al. Risk of injury associated with body checking among youth ice hockey players. JAMA 2010;303(22):2265-72. 22. Darling, SR, Schaubel DE, Baker JG, Leddy JJ, Bisson LJ, Willer B. Intentional versus unintentional contact as a mechanism of injury in youth ice hockey. Br J Sports Med 2011;45(6):492-7. 23. Emery C, Kang J, Shrier I, et al. Risk of injury associated with bodychecking experience among youth hockey players. CMAJ 2011;183(11):1249-56. 24. Kukaswadia A, Warsh J, Mihalik JP, Pickett W. Effects of changing body-checking rules on rates of injury in minor hockey. Pediatrics 2010;125(4):735-41. 25. Cusimano M, Taback N, McFaull S, Hodgins R, Tsegaye B; Canadian Research Team in Traumatic Brain Injury and Violence. Effect of bodychecking on rate of injuries among minor hockey players. Open Medicine 2011;5(1):e59: www.openmedicine.ca/article/view/246/389 (Accessed July 4, 2012). 26. Macpherson A, Rothman L, Howard A. Body-checking rules and childhood injuries in ice hockey. Pediatrics;117(2):e143-7 [Erratum in Pediatrics. 2006;117(6):2334-6]. 27. Stuart MJ, Smith AM, Nieva JJ, Rock MG. Injuries in youth ice hockey: A pilot surveillance strategy. Mayo Clin Proc 1995;70(4): p. 350-6. 28. Mölsä, J, Kujala U, Myllynen P, Torstila I, Airaksinen O. Injuries to the upper extremity in ice hockey: Analysis of a series of 760 injuries. Am J Sports Med 2003;31(5):751-7. 29. Björkenheim JM, Syvähuoko I, Rosenberg PH. Injuries in competitive junior ice-hockey. 1437 players followed for one season. Acta Orthop Scand 1993;64(4):459-61. 30. Wiggins W. Implication of introducing body checking in ice hockey at different ages. OpenThesis. Lakehead University, 1998: www.openthesis.org/documents/Implication-introducing-body-checking-in-182710.html (Accessed July 4, 2012). 31. Wattie N, Cobley S, Macpherson A, Howard A, Montelpare WJ, Baker J. Injuries in Canadian youth ice hockey: The influence of relative age. Pediatrics 2007;120(1):142-8. 32. Roberts WO, Brust JD, Leonard B. Youth ice hockey tournament injuries: Rates and patterns compared to season play. Med Sci Sports Exerc 1999;31(1):46-51. 33. Williamson IJS. An epidemiological investigation of concussion in youth ice hockey. Simon Fraser University: MSc thesis, 2006. 34. Smith AM, Stuart MJ, Wiese-Bjornstal DM, Gunnon C. Predictors of injury in ice hockey players. A multivariate, multidisciplinary approach. Am J Sports Med 1997;25(4): 500-7. 35. McKay C, Emery CA, Campbell T, Meeuwisse W. The effect of premature return to play on re-injury risk in elite adolescent ice hockey and associated psychosocial predictors [Abstract]. Br J Sport Med 2008;42(6):532-3. 36. Willer B, Kroetsch B, Darling S, Hutson A, Leddy J. Injury rates in house league, select, and representative youth ice hockey. Med Sci Sports Exerc 2005;37(10):1658-63. 37. Finke RC, Goodwin Gerberich S, Madden M, et al. Shoulder injuries in ice hockey. J Orthop Sports Phys Ther 1988;10(2):54-8. 38. Brunelle JP, Goulet C, Arguin H. Promoting respect for the rules and injury prevention in ice hockey: Evaluation of the fair-play program. J Sci Med Sport 2005;8(3):294-304. 39. Canadian Paediatric Society, Healthy Active Living and Sports Medicine Committee. Identification and management of children with sport related concussion (Principal author Laura K Purcell). Paediatr Child Health 2012;17(1):31 www.cps.ca/en/documents/position/concussion-evaluation-management. 40. Canadian Task Force on Preventive Health Care, New grades for recommendations from the Canadian Task Force on Preventive Health Care for specific clinical preventive actions. CMAJ 2003;169(3):207-8. 41. Canadian Task Force. Quality of Published Evidence. www.canadiantaskforce.ca/_archive/index.html (Accessed July 19, 2012). Disclaimer: The recommendations in this position statement do not indicate an exclusive course of treatment or procedure to be followed. Variations, taking into account individual circumstances, may be appropriate. Internet addresses are current at time of publication.

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Recommended guidelines for low-risk drinking

https://policybase.cma.ca/en/permalink/policy10143

Last Reviewed
2019-03-03
Date
2011-03-05
Topics
Population health/ health equity/ public health
  1 document  
Policy Type
Policy endorsement
Last Reviewed
2019-03-03
Date
2011-03-05
Topics
Population health/ health equity/ public health
Text
Note: These Guidelines are not intended to encourage people who choose to abstain for cultural, spiritual or other reasons to drink, nor are they intended to encourage people to commence drinking to achieve health benefits. People of low bodyweight or who are not accustomed to alcohol are advised to consume below these maximum limits. Guideline 1 Do not drink in these situations: When operating any kind of vehicle, tools or machinery; using medications or other drugs that interact with alcohol; engaging in sports or other potentially dangerous physical activities; working; making important decisions; if pregnant or planning to be pregnant; before breastfeeding; while responsible for the care or supervision of others; if suffering from serious physical illness, mental illness or alcohol dependence. Guideline 2 If you drink, reduce long- term health risks by staying within these average levels: Women Men 0–2 standard drinks* per day 0–3 standard drinks* per day No more than 10 standard drinks per week No more than 15 standard drinks per week Always have some non-drinking days per week to minimize tolerance and habit formation. Do not increase drinking to the upper limits as health benefits are greatest at up to one drink per day. Do not exceed the daily limits specified in Guideline 3. Guideline 3 If you drink, reduce short- term risks by choosing safe situations and restricting your alcohol intake: Risk of injury increases with each additional drink in many situations. For both health and safety reasons, it is important not to drink more than: Three standard drinks* in one day for a woman Four standard drinks* in one day for a man Drinking at these upper levels should only happen occasionally and always be consistent with the weekly limits specified in Guideline 2. It is especially important on these occasions to drink with meals and not on an empty stomach; to have no more than two standard drinks in any three-hour period; to alternate with caffeine-free, non-alcoholic drinks; and to avoid risky situations and activities. Individuals with reduced tolerance, whether due to low bodyweight, being under the age of 25 or over 65 years old, are advised to never exceed Guideline 2 upper levels. Guideline 4 When pregnant or planning to be pregnant: The safest option during pregnancy or when planning to become pregnant is to not drink alcohol at all. Alcohol in the mother's bloodstream can harm the developing fetus. While the risk from light consumption during pregnancy appears very low, there is no threshold of alcohol use in pregnancy that has been definitively proven to be safe. Guideline 5 Alcohol and young people: Alcohol can harm healthy physical and mental development of children and adolescents. Uptake of drinking by youth should be delayed at least until the late teens and be consistent with local legal drinking age laws. Once a decision to start drinking is made, drinking should occur in a safe environment, under parental guidance and at low levels (i.e., one or two standard drinks* once or twice per week). From legal drinking age to 24 years, it is recommended women never exceed two drinks per day and men never exceed three drinks in one day. 2 Approved by the CMA Board in March 2011 Last reviewed and approved by the CMA Board in March 2019. The above is excerpted from the report, Alcohol and Health in Canada: A Summary of Evidence and Guidelines for Low-Risk Drinking Available: https://www.ccsa.ca/sites/default/files/2019-04/2011-Summary-of-Evidence-and-Guidelines-for-Low-Risk%20Drinking-en.pdf (accessed 2019 March 01).

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