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