Safe Injection Site Can Remain Open: BC Supreme Court Judge

InSite operates near East Hastings and Main streetInSite operates near East Hastings and Main streetVANCOUVER – Canada’s trafficking and possession laws are unconstitutional when they are applied to addicts using a supervised-injection site, a B.C. Supreme Court judge has ruled. In a judgment that went far beyond what anyone expected, Judge Ian Pitfield said Vancouver’s supervised-injection site, Insite, should be allowed to remain open under current drug laws for a year even without a federal exemption from current drug laws. That year should give the federal government enough time to rewrite its laws to allow for medical use of illegal drugs if they are part of a health-care program, he said in the case that had been brought on by PHS Community Services, which runs the site, and two drug users.
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 PHS. New Democratic Party MLA Jenny Kwan, 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,” said Viviana Zanocco.

Judge Pitfield said the possession and trafficking laws are too broad and arbitrary to deal with people who have an illness called drug addiction. The law on possession “prohibits the management of addiction and its associated risks at Insite,” he wrote. “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.”

He said those laws, when applied to the site, threaten a person’s constitutional right to life and security because “it denies the addict access to a health-care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated.”

Pitfield made it clear that science and medical opinion is divided on how to treat addiction and he didn’t pretend to be able to resolve that. But, he said, that doesn’t mean those who are addicted should be denied a form of health-care treatment. He pointed out that people who drink alcohol or smoke tobacco to excess aren’t denied treatment. “I do not 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 the 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.” Health-care workers at the site should not have to face the risk of being charged with trafficking, he said.

Lawyers for the federal government had made many arguments against allowing Insite to operate without an exemption. Among them: Drug users’ lives are endangered because they choose to inject a harmful drug, not because they can’t get access to health care; Canada has a compelling interest in prohibiting the injection of controlled substances because of their adverse effects on individual and community health; and “Permitting Insite to continue its operations will create a safe haven from the criminal law and undermine its national objective and importance.”

Both sides had experts present testimony by affidavit. Pitfield said that the federal government’s experts, while knowledgeable, had little experience or background in understanding Vancouver’s drug-user population or the operation of the supervised-injection site.

Article from the Vancouver Sun, Tuesday May 27th 2008

– Read the judgement in PDF format by clicking here

From lawyer John W. Conroy QC:

I am pleased to be able to announce that we just received a favorable decision in the BC Supreme Court in the InSite Safe Injection Facility battle by Vancouver Area Network of Drug Users and Portland Hotel Society. Mr. Justice Pitfield of the BC Supreme Court declared Section 4 (possession) and Section 5 (trafficking) of the Controlled Drugs and Substances Act (CDSA) to be unconstitutional as violating Section 7 of the Charter (“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,”) as arbitrary, overbroad and grossly disproportionate in their effects.

The declaration of invalidity is suspended until June 9th, 2009 to enable the federal government to try and make the law constitutional. In the interim, the CDSA laws still stand for everyone else, but InSite and users and staff at the site now enjoy a constitutional exemption — instead of a further extension of the current exemption they were waiting for the Federal Government’s Health Minister (Tony Clement) to announce before June 30th, 2008. This BC Supreme Court decision protects InSite for at least one year from needing a federal exemption from the CDSA and the current exemption process was found not to be a sufficient antidote to the existing problems.

This decision applies to all possessors and users of addictive drugs in the sense that once addicted they suffer from an illness, and to deprive an addict of access to health care via a Safe Injection Facility results in grossly disproportionate effects that involve life, liberty and the security of the person.

John W. Conroy QC
Conroy and Company
Barristers and Solicitors