Pubdate: Wed, 28 May 2008 Source: National Post (Canada) Copyright: 2008 Southam Inc. Contact: http://www.nationalpost.com/ Details: http://www.mapinc.org/media/286 Author: Ian Mulgrew, Canwest News Service Referenced: The ruling http://drugsense.org/url/IoeOUnAY Bookmark: http://www.mapinc.org/topic/Insite (Insite) B.C. DRUG INJECTION SITE LEGAL, COURT RULES Insite Victory Throws Drug Law into Limbo VANCOUVER - The B. C. Supreme Court has thrown the country's drug law into limbo with a ruling that says it conflicts with health concerns that constitutionally are a provincial responsibility, as well as conflicting with the Charter of Rights and Freedoms. In a surprise ruling yesterday, the court supported Vancouver's experimental supervised injection clinic and halted federal attempts to close the facility. Judge Ian Pitfield said Insite should be allowed to remain open for a year even without a federal exemption from current drug laws. The judge declared a key section of the Controlled Drugs and Substances Act (CDSA) of no force and gave Ottawa until June 30, 2009, to rectify the law because it appears to interfere with medical treatment. Judge Pitfield said the current law governing illicit substances puts "unfettered discretion in the hands of the Minister" and violates the Constitution. He dismissed the government's claim that Parliament is empowered to prohibit the possession of controlled substances because of their dangerous nature and the state's compelling interest in controlling their use, an interest shared by the world and formalized in international treaties. The government had argued that even if the drug law was unconstitutional, its constraints were justifiable and reasonable in a free and democratic society. In a 59-page decision that reviewed more than a decade's worth of social work on the Downtown Eastside, the judge said drug addicts deserved the same kind of health care as those in the thralls of alcohol or tobacco addiction. Insite was established in September, 2003, as a pilot project to reduce disease, reduce overdose deaths and foster better health care for addicts. More than one million injections have occurred. However, an exemption granted by the federal government for the clinic to operate expired, and the facility has been operating on temporary permits since. The ruling was greeted with near disbelief and euphoria by advocates, who have lobbied for years, first to open the site and then to keep it open. "I just want to cry, I'm so ecstatic," said Liz Evans, one of the directors of the Portland Hotel Society. The society operates Insite for the health authority, supported by the Vancouver Area Network of Drug Users. Staff were at risk if they continued to operate the clinic without Ottawa's approval when the current exemption-extension expires this summer. The society complained that the drug law imposes an absolute and unqualified prohibition on the possession of controlled substances and prevented access to Insite. As a result, they argued, Ottawa was migrating from the criminal sphere -- a federal responsibility -- into the provincial realm of health care. Judge Pitfield concluded the national law blocked addicts from a health care facility that could reduce or eliminate their risk of death from an overdose or from contracting an infectious disease, thereby violating their right to life and security. "While users do not use Insite to directly treat their addiction, they receive services and assistance at Insite which reduce the risk of overdose that is a feature of their illness, they avoid the risk of being infected or of infecting others by injection, and they gain access to counselling and consultation that may lead to abstinence and rehabilitation," he said. "All of this is health care." Judge Pitfield went on to say the federal law "forces the user who is ill from addiction to resort to unhealthy and unsafe injection in an environment where there is a significant and measurable risk of morbidity or death." In a statement, Ms. Evans said, "The B. C. Supreme Court has now confirmed what doctors and nurses have known for many years, that addiction is a health care issue, and that Insite is a vital part of how our health care system treats this tragic disease." Jenny Kwan, the NDP MLA in whose riding the site is located, called it a "significant victory for the people in our community." And a spokeswoman for Vancouver Coastal Health said the organization was pleased with the ruling. "Obviously, it reinforces a lot of the arguments we have made about the value of the site," Viviana Zanocco said. When reached late yesterday, the office of Federal Health Minister Tony Clement released a brief statement reacting to the ruling: "We are studying the decision." [sidebars] WHAT THE JUDGMENT SAYS: From yesterday's judgment by the B. C. Supreme Court: - "In my opinion, section 4(1) of the [Controlled Drugs and Substances Act], which applies to possession for every purpose without discrimination or differentiation in its effect, is arbitrary. In particular, it prohibits the management of addiction and its associated risks at Insite. It treats all consumption of controlled substances, whether addictive or not, and whether by an addict or not, in the same manner. Instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributes to the very harm it seeks to prevent. It is inconsistent with the state's interest in fostering individual and community health, and preventing death and disease." - "Section 4(1) of the CDSA threatens security of the person. It denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated. While it is popular to say that addiction is the result of choice and the pursuit of a liberty interest that should not be afforded Charter protection, an understanding of the nature and circumstances which result in addiction...must lead to the opposite conclusion." - "While [alcohol and tobacco] are not prohibited substances, society neither condemns the individual who chose to drink or smoke to excess, nor deprives that individual of a range of health care services. Management of the harm in those cases is accepted as a community responsibility. I cannot see any rational or logical reason why the approach should be different when dealing with the addiction to narcotics. ... Simply stated, I cannot agree with ... Canada's submission that an addict must feed his addiction in an unsafe environment when a safe environment that may lead to rehabilitation is the alternative." FACTS ON INSITE: North America's first legal supervised injection site - Opened in Vancouver's Downtown Eastside in September, 2003 - Provides clean equipment and supervision for injected drug use - Involves the use of illegal drugs such as heroin, cocaine and crystal methamphetamine - Has given more than one million injections under the supervision of nurses - Insite's annual operating cost is $3-million. British Columbia's Ministry of Health gave Insite $1.2-million to renovate a former retail space. Health Canada gives Insite $500,000 every year through Vancouver Coastal Health - Government report commissioned by federal Health Minister Tony Clement and released in March said the clinic could save about one life per year by intervening in overdoses - - Report did not find evidence that Insite reduces HIV infection rates - Report said Insite accounted for less than 5% of drug injections in Downtown Eastside - [Report said] the cost of each injection was about $1,380. Source - Zosia Bielski, National Post - --- MAP posted-by: Richard Lake