DOES JUDGMENT CLEAR WAY FOR SAFE-INJECTION SITES?

VANCOUVER -- Legal experts were divided yesterday on whether a B.C.
Supreme Court ruling ensuring that Vancouver's injection facility for
heroin addicts remains open clears the way for supervised injection
sites across the country. "The decision only exempts Insite," lawyer
Joseph Arvay, who represented the Portland Hotel Society in the court
case, said yesterday in an interview.

The city of Victoria or other places with problems similar to
Vancouver's Downtown Eastside neighbourhood may try to use the court
ruling to set up their own facilities, but they would require a court
order to stay within the law, he said. "And whether they get that
order would depend on the facts of their case."

Margot Young, an associate professor of law at the University of
British Columbia, agreed. She said the ruling was made in the context
of expert evidence about the dire circumstances of the Downtown
Eastside, research showing that Insite had success in addressing some
of the issues, and city policies for responding to drug problems in
the neighbourhood.

"There is no guarantee [others who open an injection facility] are
going to find a judge who is going to make the same judgment call
about their particulars," she said. The court ruling gives a
constitutional exemption to Insite based on the circumstances of the case.

"It is not a general exemption for injection sites," Prof. Young said.

However, academic researcher and lawyer Neil Boyd and lawyer Monique
Pongracic-Speier said others could use the ruling to open their own facilities.

"It applies to Insite and by extension to others," Prof. Boyd said,
adding that he assumed the ruling would cover any facility that met
Insite's standards. Ms. Pongracic-Speier, who also represented the
Portland Hotel Society in the court case, agreed.

"If another site opened and operated in relatively the same way as
Insite, I don't see how there could be an argument against it," she said.

In a court ruling that caught many by surprise, Mr. Justice Ian
Pitfield decided that the federal drug law as applied to Insite was
unconstitutional. Unless a higher court overturns Judge Pitfield's
ruling, Insite will have a constitutionally protected right to stay
open indefinitely.

The federal government has not yet indicated whether the ruling will
be appealed. The lawyers estimated it could take two or three years
to reach a final ruling, and possibly longer, if the B.C. Court of
Appeal and the Supreme Court of Canada are asked to consider the case.

Mr. Arvay urged the government to accept the ruling and amend the
drug laws to be consistent with the constitutional protection for Insite.

"It is my hope that the government, on sober reflection, realize this
decision is correct in law, and a highly moral decision. They should
not appeal it," he said.

The injection facility operates under an exemption from the law that
was to expire on June 30.

Prof. Boyd said federal Health Minister Tony Clement should move
ahead with plans to clarify the government's position on whether the
exemption would be extended beyond June 30, despite the court ruling.
Otherwise, the future of Insite will depend solely on higher courts
upholding a decision of a lower court judge, he said.

Prof. Boyd said he is concerned the issue would be left in limbo as
any appeal winds its way through the court system. "There's no clear
outcome from this," he said. "It appears to me we are not going to
have a clear decision [on whether Insite will remain open] in the near future."