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 
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