B.C. COURT MAKES A COURAGEOUS DECISION TO SUPPORT INSITE

Rules Section of National Drug Law Conflicts With Provincial Responsibilities

The B.C. Supreme Court has thrown Canada's drug law into limbo,
saying a key section conflicts with provincial health
responsibilities and the Charter of Rights and Freedoms.

In a stunning and surprising ruling Tuesday, the court supported
Vancouver's experimental supervised injection clinic and halted the
threatened closure of the facility.

Justice Ian Pitfield declared a key section of the Controlled Drugs
and Substances Act of no force and effect and gave Ottawa until June
30, 2009 to rectify the law because it appears to interfere with
medical treatment.

In the interim, he said the experimental Insite clinic has a
constitutional exemption from the drug law to continue its work with
street addicts.

Justice 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.

It was a courageous ruling.

"In my opinion," Justice Pitfield said, "section 4(1) of the CDSA,
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."

The government had argued that even if the drug law was
unconstitutional, its constraints were justifiable and reasonable in
a free and democratic society.

Justice Pitfield said the principles of fundamental justice are too
important to be trampled so easily.

In a lengthy 59-page decision that reviewed more than a decade's
worth of social work on the Downtown Eastside, Pitfield said drug
addicts deserve the same kind of health care as those in the thrall
of alcohol or tobacco.

The Vancouver Safe Injection Site (aka 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.

Staff have managed in excess of 1,000 overdoses without any resulting
fatalities.

But the exemption granted by the federal government for the clinic to
operate expired and the facility has been operating on temporary
permits ever since.

Insite staff feared criminal charges could be laid against them if
they continued to operate the facility after the most recent federal
permit extension expired later this summer.

That's why the court ruling was sought.

The Portland Hotel Society, which operates Insite for the health
authority, supported by the Vancouver Area Network of Drug Users,
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.

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."

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."

That should not be allowed.

"Section 4(1) of the CDSA threatens security of the person," Pitfield
said. "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."

Pitfield said there was no justification for denying addicts health
care services that will ameliorate the effects of their condition.

"Society does that for other substances such as alcohol and tobacco,"
he emphasized.

"While those 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."

Common sense perhaps, but common sense that needed to be said.

Good on Justice Pitfield for cutting through the cant.