ADDICT'S ARREST VIOLATED CHARTER, LAWYER ARGUES

Insite Ruling on Right to Health Care Cited

A Victoria defence lawyer is arguing that the charter rights of a
homeless heroin addict were violated when he was arrested with a
needle in his hand in a secluded parking lot off Herald Street in June 2006.

Wayne Charters was poised to inject 0.3 millilitres of morphine into
his arm when he was arrested by Victoria police. Charters, now 44,
was charged with possession of a controlled substance. He is pleading
not guilty to the offence.

Lawyer Katherine Tyhurst is arguing that Charters's right to life and
security under the Charter of Rights and Freedoms is being threatened
because the Controlled Drug and Substances Act does not recognize his
drug addiction as a health issue.

Tyhurst also maintains Charters's rights were violated because he
does not have access to a supervised injection site like Vancouver's Insite.

"How can someone's conduct be criminal in Victoria, but not in
Vancouver where drug addicts have access to Insite?" she asked.

Charters was injecting $7 worth of morphine, the amount required to
stop addiction sickness, Tyhurst said. He was not injecting the drug
to get high, she added. Police didn't find any other drugs when they
searched him that night.

"Addiction is an illness," Tyhurst said. "Addicts have a continuing
need to consume that substance."

The trial, which began in Victoria provincial court last week, was
adjourned until March 16. Prior to the adjournment, Charters, who has
since turned his life around, testified that if Victoria had a safe
injection site, he wouldn't have been in the parking lot.

Crown prosecutor Peter Eccles said he hasn't decided what position he
will take on the matter.

Tyhurst's defence is based on a recent B.C. Supreme Court ruling by
Justice Ian Pitfield that Insite can stay open indefinitely because
it provides a form of health care to which drug users have a right.

In his May 28 judgment, Pitfield called drug addiction an illness and
said Canada's possession and trafficking laws, from which the
injection site has to get an exemption to operate, are too broad and
arbitrary to deal with people who are addicted.

The law on possession "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,"
Pitfield wrote.

Addicts should not be denied a form of health-care treatment,
Pitfield said. He pointed out that people who drink alcohol or smoke
tobacco aren't denied treatment.

"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," he wrote.

Federal Health Minister Tony Clement immediately appealed the
decision. However, the B.C. government is fighting to keep Insite
legal and will take on the federal government when the case goes to
appeal in April. The province plans to file a formal argument in
October, when the federal government and the Portland Hotel Society,
which runs Insite, file their arguments.

"The attorney general will appear to speak to the exclusive
provincial jurisdiction over the delivery of community health
services and the importance of permitting provinces to experiment and
innovate in response to local health concerns," a spokesman for the
B.C. Health Ministry said in an e-mail.

On Thursday, Victoria Mayor Alan Lowe said the city is still
interested in establishing a pilot project with multiple safe
injection sites in conjunction with other social service agencies in
the city, but "the door appears to be shut" by the federal
government's position.

Although some police forces don't normally charge people for simple
possession of heroin, Sgt. Grant Hamilton said Victoria police
enforce all sections of the Criminal Code, including those involving
addicts in possession of drugs.

"Until there are amendments to the Criminal Code that will not
change," Hamilton said.