CLEMENT DISAGREES WITH INSITE DECISION

'Examining Options'

Federal Health Minister Tony Clement yesterday said his government
disagrees with a B. C. Supreme Court decision that rules that it
would be unconstitutional for Ottawa to shut down North America's
only supervised safe-injection facility.

Mr. Clement expressed his disappointment and said the government was
"examining options;" the Department of Justice will ultimately decide
whether to appeal Justice Ian Pitfield's judgment, he said.

In a decision released on Tuesday, Judge Pitfield said that Canada's
trafficking and possession laws were unconstitutional when applied to
addicts using Insite and the Vancouver supervised-injection site
should be allowed to remain open for a year, even without a federal
exemption from drug laws. The current exemption was due to run out June 30.

Judge Pitfield has given Ottawa until the end of June 2009 to amend
the country's drug laws.

Mr. Clement told the House of Commons that prevention was the best
way to deal with the issue of drug addiction.

"We on this side of the House care about treating drug addicts who
need our help and we care about preventing people, especially our
young people, from becoming drug addicts in the first place. We are
proud to take that message to the people of Canada," he said during
Question Period.

The judgment, which has been described as going far beyond what
anyone expected, has drawn charges of "judicial activism."

"When judges take it upon themselves, in cases like this where
reasonable people can reasonably disagree whether there is or is not
a violation against the Charter, and say we're going to resolve it in
accordance with our opinion, in effect, the judges are usurping the
democratic powers of the elected representatives of the people," said
Rory Leishman, author of Against Judicial Activism: The Decline of
Freedom and Democracy in Canada.

Lloyd Brown-John, professor emeritus of political science at the
University of Windsor, said any judicial decision can have policy consequences.

"To say that here are the courts forging ahead is absolute nonsense,"
he said. "The court's responsiblity is to interpret the law in the
matter that it believes Parliament intended ... and then point out to
Parliament where there are gaps."

Margot Young, an associate law professor at the University of British
Columbia, said in this case, the judge had acted with "judicial restraint."

"[When judges] say a law is unconstititional and they fix it
themsleves, where for instance they rewrite the law or they put a
phrase in or take a phrase out, that raises cries of horror about
judicial acitivism. But here, the court has given Parliament a year
to fix it as they see fit. That is a more restrained, remedial approach."

Monique Pongracic-Speier, the lawyer who argued the case on behalf of
the nonprofit group, Portland Hotel Society, called the ruling "significant."

"It is an important affirmation that in Canada we do have a right to
receive treatment that will help addicted individuals deal with the
effects of their addiction and to receive treatment that will promote
recovery," she said.

"A court in this country has not been called upon to look at
injection drug use from a human rights point of view. That said, the
Canadian Charter of Rights and Freedoms and the protection of the
right to life, liberty and security as a person, has a well-devleoped
body of law around it.

"The court, in my estimation, was not making new law. It was applying
the existing law to the facts of the case."

During the court case lawyers for the federal government had argued
that the lives of drug users were endangered not because they they
could not get access to health care but because they chose to inject
themselves with a harmful drug and that allowing Insite to continue
operating would create a safe haven fromthe criminal law.

The judge, however, said the experts presented by the government
during the case had little experience in understanding Vancouver's
drug-user population and the facility.

Judge Pitfield ruled Insite should be allowed to remain open under
current drug laws for a year, even without a federal exemption from
current drug laws.

That year would give the federal government time to rewrite its laws
to allow for medical use of illegal drugs if they were part of a
health-care program, he said.