INSITE DECISION UNDERMINES DRUG LAWS

In a two-to-one ruling on Jan. 15, the British Columbia Court of
Appeal held that Parliament has no constitutional authority to
prohibit drug addicts from injecting themselves with illegal drugs in
a public health clinic. With this bizarre decision, the court has
undermined the entire bans on drug possession and drug trafficking in
the Controlled Drugs and Substances Act.

The immediate focus of the case is Insite, a notorious health clinic
in the drug-infested east side of downtown Vancouver, where nurses
and paramedical staff help drug addicts to inject themselves with
heroin, cocaine and other illegal drugs. According to the trial
judge, "No substances are provided by staff. It goes without saying
that the substances brought to Insite by users have been obtained
from a trafficker in an illegal transaction."

The British Columbia Ministry of Health established Insite in 2003 as
an experiment in the supervised injection of illegal drugs, the first
of its kind in North America. To enable the clinic to operate, the
minister of health in the Liberal government of Canada at the time
granted Insite a temporary exemption from the federal bans on illegal
drug possession and trafficking.

Former Conservative health minister Tony Clement served notice in
2007 that he planned to terminate the exemption. "Allowing and/or
encouraging people to inject heroin into their veins is not harm
reduction," he said. "We believe it is a form of harm addition." He
insisted that instead of fostering the injection of dangerous and
illegal drugs, the medicare system should save the lives of addicts
by concentrating on drug treatment and rehabilitation.

Backers of Insite fundamentally disagree with this policy. Having
failed in their political efforts to maintain the exemption for
Insite, they appealed Clement's decision to the courts, and won.

In a ruling on May 27, 2008, Justice Ian Pitfield of the British
Columbia Supreme Court overturned Clement's policy. He continued the
exemption for Insite on the ground that the Controlled Drugs and
Substances Act violates the right to "life, liberty and security of
the person" in Section 7 of the Canadian Charter of Rights and
Freedoms to the extent that the bans on drug possession and drug
trafficking prevent addicts from safely injecting illegal drugs in a
public health clinic.

Now the British Columbia Court of Appeal has upheld a continuing
exemption for Insite. In reasons for the court, Justice Carol Huddart
opined: "A supervised drug injection service does not undermine the
federal goals of protecting health or eliminating the market that
drives the more serious drug-related offences of import, production
and trafficking."

In a concurring opinion, Justice Anne Rowles similarly argued
application of the provisions on drug possession and drug trafficking
in the federal narcotics law to Insite "would have the effect of
putting the larger society at risk on matters of public health with
its attendant human and economic cost."

In dissent, Justice Daphne Smith pointed out if other provinces take
advantage of the immunity granted to Insite, "supervised injection
sites could be opened in every city across Canada. The creation of
'enclaves' where illicit drugs may be brought for intravenous drug
use, without the potential for prosecution, could eviscerate the
efficacy of a criminal law validly enacted by Parliament that seeks
to address the broader context and consequences of illicit drug use
across the entire supply chain."

Note that instead of discussing the principles of the law and the
Constitution, all of these judges are debating the wisdom of the
policy adopted by the Harper government to uphold the comprehensive
ban on the possession and trafficking of illegal drugs in the
Controlled Drugs and Substances Act.

Upon further appeal, will the Supreme Court of Canada likewise
maintain the exemption for Insite and amend the federal narcotics
law? That remains to be seen.

Meanwhile, it's clear that our appeal courts are still infested with
arbitrary judicial activists who have no compunction about changing
the law to suit their personal policy preferences.

Rory Leishman is a London freelance writer. E-mail roryleishman@gmail.com