FEDS SHOULD NOT APPEAL INSITE DECISION

The more the federal government fights Insite, Vancouver's supervised
injection site, the deeper the hole it digs for itself.

Last year, when it became evident that the feds wished to close the
site, two separate actions were commenced to ensure it remained open.
In May 2008, B.C. Supreme Court Justice Ian Pitfield held that certain
sections of the Controlled Drugs and Substances Act (CDSA) violated
the Charter rights of Insite users, and hence were of no force and
effect.

This meant that Insite could stay open, without fear that Insite users
or staff could face charges for possession or trafficking in
controlled substances. But the federal government decided to appeal
Pitfield's decision to the B.C. Court of Appeal. Last week the court
issued its decision, and placed a further hurdle in the way of the
feds' efforts to shut down the healthcare facility.

Writing for the majority in the 2-1 decision, Justice Carol Huddart
held that the prohibition and trafficking sections of the CDSA are
inapplicable to Insite by reason of the application of the doctrine of
"interjurisdictional immunity." In the words of the Supreme Court of
Canada, "there are circumstances in which the powers of one level of
government must be protected against intrusions, even incidental ones,
by the other level," and "this is called interjurisdictional immunity."

For example, in the present case, Insite is a provincial undertaking,
a healthcare facility whose only purpose is to provide healthcare
services. But given that the federal government has authority over
criminal law, and can use that authority to shut down Insite, it can
"effectively prohibit a form of healthcare vital to the delivery of a
provincial healthcare program, [and] that means Parliament has an
effective veto over provincial healthcare services."

This, according to Justice Huddart, is precisely the sort of federal
intrusion into the provincial domain that the doctrine of
interjurisdictional immunity was meant to prevent. And while the feds'
could -- and did -- argue that application of the doctrine would
severely limit the feds' scope of criminal law power, Huddart noted
that the doctrine can be applied in a very limited way: Specifically,
the doctrine would result in the possession and trafficking sections
of the CDSA being inapplicable only to users and staff of Insite.

All sections of the CDSA would continue to apply to everyone else in
Canada, and would still apply to users and staff of Insite while they
are not at Insite.

As a result, Huddart thought it unnecessary to consider the Charter
argument on which Pitfield based his decision. Nevertheless, Justice
Anne Rowles, who agreed with Huddart on the matter of
interjurisdictional immunity, did review the Charter argument,
concluding that the relevant sections of the CDSA do represent an
unconstitutional infringement of the Charter rights of Insite users.

This means the federal government now faces a steeper uphill battle in
its efforts to shut down an important service for drug addicts. This
is a good enough reason to quit while they're behind.

But there's another, more important reason. Ottawa has already spent a
significant amount of taxpayers' money attempting to scuttle what has
proven to be an effective healthcare service. Yet the Harper
government has repeatedly expressed interest in providing treatment
services for drug addiction. If this is so, the government can make it
a reality by taking the money they would spend on an appeal and
earmarking it instead for services that will help those battling
substance abuse.