Wednesday, May 28, 2008
B.C. court makes a courageous decision to support Insite
Rules section of national drug law conflicts with provincial responsibilities
The Vancouver Sun
The B.C. Supreme Court has thrown Canada's drug law into limbo, saying a key section conflicts with provincial health responsibilities and the Charter of Rights and Freedoms.
In a stunning and surprising ruling Tuesday, the court supported Vancouver's experimental supervised injection clinic and halted the threatened closure of the facility.
Justice Ian Pitfield declared a key section of the Controlled Drugs and Substances Act of no force and effect and gave Ottawa until June 30, 2009 to rectify the law because it appears to interfere with medical treatment.
In the interim, he said the experimental Insite clinic has a constitutional exemption from the drug law to continue its work with street addicts.
Justice Pitfield said the current law governing illicit substances puts "unfettered discretion in the hands of the minister" and violates the Constitution.
He dismissed the government's claim that Parliament is empowered to prohibit the possession of controlled substances because of their dangerous nature and the state's compelling interest in controlling their use, an interest shared by the world and formalized in international treaties.
It was a courageous ruling.
"In my opinion," Justice Pitfield said, "section 4(1) of the CDSA, which applies to possession for every purpose without discrimination or differentiation in its effect, is arbitrary. In particular it prohibits the management of addiction and its associated risks at Insite.
"It treats all consumption of controlled substances, whether addictive or not, and whether by an addict or not, in the same manner.
"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."
The government had argued that even if the drug law was unconstitutional, its constraints were justifiable and reasonable in a free and democratic society.
Justice Pitfield said the principles of fundamental justice are too important to be trampled so easily.
In a lengthy 59-page decision that reviewed more than a decade's worth of social work on the Downtown Eastside, Pitfield said drug addicts deserve the same kind of health care as those in the thrall of alcohol or tobacco.
The Vancouver Safe Injection Site (aka Insite) was established in September 2003 as a pilot project to reduce disease, reduce overdose deaths and foster better health care for addicts. More than one million injections have occurred.
Staff have managed in excess of 1,000 overdoses without any resulting fatalities.
But the exemption granted by the federal government for the clinic to operate expired and the facility has been operating on temporary permits ever since.
Insite staff feared criminal charges could be laid against them if they continued to operate the facility after the most recent federal permit extension expired later this summer.
That's why the court ruling was sought.
The Portland Hotel Society, which operates Insite for the health authority, supported by the Vancouver Area Network of Drug Users, complained that the drug law imposes an absolute and unqualified prohibition on the possession of controlled substances and prevented access to Insite.
As a result, they argued, Ottawa was migrating from the criminal sphere -- a federal responsibility -- into the provincial realm of health care.
Pitfield concluded the national law blocked addicts from a health care facility that could reduce or eliminate their risk of death from an overdose or from contracting an infectious disease, thereby violating their right to life and security.
"While users do not use Insite to directly treat their addiction, they receive services and assistance at Insite which reduce the risk of overdose that is a feature of their illness, they avoid the risk of being infected or of infecting others by injection, and they gain access to counselling and consultation that may lead to abstinence and rehabilitation," he said.
"All of this is health care."
Pitfield went on to say the federal law "forces the user who is ill from addiction to resort to unhealthy and unsafe injection in an environment where there is a significant and measurable risk of morbidity or death."
That should not be allowed.
"Section 4(1) of the CDSA threatens security of the person," Pitfield said. "It denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated.
"While it is popular to say that addiction is the result of choice and the pursuit of a liberty interest that should not be afforded Charter protection, an understanding of the nature and circumstances which result in addiction . . . must lead to the opposite conclusion."
Pitfield said there was no justification for denying addicts health care services that will ameliorate the effects of their condition.
"Society does that for other substances such as alcohol and tobacco," he emphasized.
"While those are not prohibited substances, society neither condemns the individual who chose to drink or smoke to excess, nor deprives that individual of a range of health care services.
"Management of the harm in those cases is accepted as a community responsibility.
"I cannot 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 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."
Common sense perhaps, but common sense that needed to be said.
Good on Justice Pitfield for cutting through the cant.