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Author Topic: possession and trafficking laws deemed unconstitutional
Dana Larsen
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posted 28 May 2008 11:06 AM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Wednesday, May 28, 2008

B.C. court makes a courageous decision to support Insite

Rules section of national drug law conflicts with provincial responsibilities

Ian Mulgrew
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.

Author: imulgrew@png.canwest.com

Contact: sunletters@png.canwest.com
Contact: http://www.canada.com/vancouversun/letters.html



From: Vancouver | Registered: Jul 2005  |  IP: Logged
Dana Larsen
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posted 28 May 2008 11:07 AM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Here's a statement from lawyer John Conroy, who was fighting this case on behalf of Insite:

quote:
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



From: Vancouver | Registered: Jul 2005  |  IP: Logged
Dana Larsen
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posted 28 May 2008 11:10 AM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Read the full story here:

http://canadianpress.google.com/article/ALeqM5gg1GS78gMST8yY8EB4IAymd4VnJg

quote:
BC court rules federal drug laws against possession, trafficking unconstitutional

VANCOUVER — Canada's laws prohibiting possession and trafficking of drugs were struck down as unconstitutional Tuesday by the B.C. Supreme Court, in a case focusing on the plague of drug addiction in Vancouver's Downtown Eastside.

But Justice Ian Pitfield gave Ottawa until June 30, 2009, to fix the law and bring it in line with the Constitutional principle of fundamental justice.

The ruling, in a case challenging the federal government's jurisdiction over Vancouver's controversial safe-injection site, goes well beyond the site itself.

The case was launched by the non-profit organization that runs Insite and a group of addicts, who argued the site addresses a public health crisis.

In a 60-page ruling released Tuesday, Pitfield found that sections of the federal Controlled Drugs and Substances Act are inconsistent with Section 7 of the Charter of Rights and Freedoms.

Pitfield's says in his ruling that denying access to the site ignores the illness of addiction.

"While there is nothing to be said in favour of the injection of controlled substances that leads to addiction, there is much to be said against denying addicts health care services that will ameliorate the effects of their condition," he wrote.

"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."
The safe-injection site opened in 2003 under an exemption from Canada's drug laws. But the latest exemption expires June 30 and the site needed Ottawa's blessing to remain open beyond that date.

While Pitfield's decision striking down two sections of the federal drug laws doesn't take effect until next year, he granted Insite an immediate exemption, allowing it to remain open.

Federal Health Minister Tony Clement issued only a brief statement on the ruling: "We are studying the decision."

...snip...

But the site has a long list of supporters who have lobbied Ottawa for its continued operation, including health and medical experts, Vancouver's mayor and the provincial government.

"We are encouraged by the judgment," said B.C. Health Minister George Abbott.

"We are strongly supportive of Insite as part of the continuum of mental-health and addictions services in this province."

...snip...

Vancouver Mayor Sam Sullivan also predicted Tuesday's judgment won't put an end to the issue.

Sullivan said he expects the federal government to appeal, setting off a protracted legal battle that could take years to resolve. And he said he's glad Insite will be allowed to stay open in the meantime.

"We need to try new approaches, we need to respect that some people are simply ill and are not able to deal with drug addiction the way we'd like them to. ... It's very important to us that Insite remain open."



From: Vancouver | Registered: Jul 2005  |  IP: Logged
It's Me D
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posted 28 May 2008 12:01 PM      Profile for It's Me D     Send New Private Message      Edit/Delete Post  Reply With Quote 
This sounds like good news no matter where it goes from here. Thanks BC Out here we don't even stand up for things right-wingers believe in like money and oil. As to where it will go from here this is my expectation as well:

quote:
Sullivan said he expects the federal government to appeal, setting off a protracted legal battle that could take years to resolve.

Its sad to see an appointed court representing the people against an "elected" government


From: Parrsboro, NS | Registered: Apr 2008  |  IP: Logged
Dana Larsen
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posted 28 May 2008 12:17 PM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I just received this notice from Libby Davies, Deputy NDP Leader.


Libby Speaks Out on Insite Court Decision

House of Commons
HANSARD
May 28, 2008

Ms. Libby Davies (Vancouver East, NDP):

Mr. Speaker, yesterday B.C.'s Supreme Court decision makes it abundantly clear that Insite, the supervised injection facility in east Vancouver, is a health facility. The ruling also makes it clear that closing Insite would be “inconsistent with the state's interest in fostering individual and community health and preventing death and disease”.

Can the Minister of Health assure the House today that his Conservative government will abide by the court's decision and not appeal this important case?

Hon. Tony Clement (Minister of Health and Minister for the Federal Economic Development Initiative for Northern Ontario, CPC):

Mr. Speaker, I am not in charge of appeals. That is the Minister of Justice.

But I can say to the House that on this side of the House at least we are disappointed with the judgment. We disagree with the judgment. We are, of course, examining our options and I would say to the House that we on this side of the House care about treating drug addicts who need our help. We care about preventing people, especially our young people, from becoming drug addicts in the first place. That is our way to reduce harm in our society and we are proud of taking that message to the people of Canada.


Ms. Libby Davies (Vancouver East, NDP):

Mr. Speaker, if the Minister of Health claims that he cares about people who use drugs and the issues they face, then he will respect the decision of the court.

The medical, scientific and now legal conclusions just could not be any clearer. Insite is a life-saving facility and harm reduction is an essential component of Canada's drug strategy.

When will the minister put aside his personal ideological position, respect the court's decision and get to work on changing Canada's drug laws to allow access to health facilities such as Insite? When is he going to do that? He is taking too long.

Hon. Tony Clement (Minister of Health and Minister for the Federal Economic Development Initiative for Northern Ontario, CPC):

Mr. Speaker, it is a bit rich for the member from the New Democratic Party to start lecturing us on ideological positions. That is its bread and butter over there, but we on this side of the House are here for public policy. We are here to help our kids, prevent them from getting on drugs in the first place. We are here to help addicts.


From: Vancouver | Registered: Jul 2005  |  IP: Logged
Dana Larsen
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posted 29 May 2008 06:03 PM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
The exchange between Libby Davies and Tony Clement above can be watched on YouTube here:

http://www.youtube.com/watch?v=hJan-EOdTfk


From: Vancouver | Registered: Jul 2005  |  IP: Logged
Dana Larsen
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posted 04 June 2008 07:03 PM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I am surprised that this is not getting more attention, but the media has not correctly explained what this decision means.

Canada's laws prohibiting possession and trafficking of drugs were struck down as unconstitutional, with a one-year delay.

So the Conservatives have until May 2009 to rewrite Canada's Controlled Drugs and Substances Act to exempt supervised injection sites and other harm reduction techniques. If this is not done, then possession and trafficking will be entirely legal as the laws are struck down.

The thing is, I don't think the Conservatives will spend much time actually working to rewrite the laws. Instead they will fight this decision. If their courtroom battle fails, then possession and trafficking in every banned drug will be legal in May 2009.

This already happened with the marijuana laws. Because the med-pot program wasn't up to the judicial standard, marijuana was completely legal in Canada for a few months in 2003, until the regulations were fixed. Read about that here: http://www.cannabisculture.com/news/tour

And now there are lower court judges in Ontario who have ruled that the marijuana prohibition laws are still invalid, because the med-pot program is still not being run properly. Read about that here: http://thepotlawhasfallen.ca/ and also here: http://www.nationalpost.com/opinion/story.html?id=336547&p=2


From: Vancouver | Registered: Jul 2005  |  IP: Logged
Buddy Kat
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posted 08 June 2008 07:50 AM      Profile for Buddy Kat   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by It's Me D:

Its sad to see an appointed court representing the people against an "elected" government

Yes it is...especially an elected government that has shown repeatedly (almost on a weekly basis) it can't interpret the law much less a constitution.

Mark my words if the cons ever get a majority they will destroy our constitution. As it is they can't understand it, much less follow it.

Cheers to the BC justice system....They got this one right.


From: Saskatchewan | Registered: Sep 2006  |  IP: Logged
jeff house
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posted 08 June 2008 10:02 AM      Profile for jeff house     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Its sad to see an appointed court representing the people against an "elected" government

Governments make GENERAL laws. But those laws may not take everyone's circumstances into account, and they may also express the will of the majority without taking the rights of the minority into account.

When they do, there is ONE mechanism which can possibly protect individual rights, and that is a court. It is a primitive democracy which is concerned about elections, and not also rights.

Both are important in modern democracy.


From: toronto | Registered: May 2001  |  IP: Logged
M. Spector
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posted 08 June 2008 10:22 AM      Profile for M. Spector   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Buddy Kat:
Mark my words if the cons ever get a majority they will destroy our constitution.

They already have majority support in the House of Commons.

What more power do they need?


From: One millihelen: The amount of beauty required to launch one ship. | Registered: Feb 2005  |  IP: Logged
Buddy Kat
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posted 08 June 2008 05:21 PM      Profile for Buddy Kat   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by M. Spector:

They already have majority support in the House of Commons.

What more power do they need?


True..the sleazy liberals have made sure of that. I think tho a costitutional change would require much more consent than even a backstabbing liberal can muster.

However, given a majority the neocons can stack senates and do whatever they want, without any liberal interferance. Like they did when lye'n brian was the pm and passed the gst...they stacked the senate. They even tried to ruin the constitution ...remember the referandum.


From: Saskatchewan | Registered: Sep 2006  |  IP: Logged
Noah_Scape
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posted 12 June 2008 10:06 PM      Profile for Noah_Scape     Send New Private Message      Edit/Delete Post  Reply With Quote 
There is an immorality where prohibition is applied to medicines provided by nature.

The resistance to ending prohibition of heroin, and marijuana, comes from the elephant to the south of us. Their motives for upholding prohibition may be along the lines that heroin is a source of funds to do "unsavory political actions" that their congress cannot approve of. [I am reading Henrik Kruger's "The Great Heroin Coup"].

First it was France, and then Nixon took over the illegal drug trade for America. They both used organized crime to do the dirty work. As with oil, it is too valuable an entity to leave in the hands of your enemies or competitors.

The only way to end this "drug fascism" is to end prohibition.


From: B.C. | Registered: Oct 2007  |  IP: Logged
wwSwimming
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posted 13 June 2008 12:31 PM      Profile for wwSwimming     Send New Private Message      Edit/Delete Post  Reply With Quote 
Does this have any bearing on the extradition of Marc Emery ?
From: LASIKdecision.com ~ Website By & For Injured LASIK Patients | Registered: May 2006  |  IP: Logged
Dana Larsen
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posted 13 June 2008 09:35 PM      Profile for Dana Larsen   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Regarding Emery's case, and that of his two co-accused employees who are also facing extradition, this decision could have an impact.

If the possession and trafficking laws do fall in May 2009, then I imagine that Emery would apply to have his case dismissed as there would be no law in Canada against selling any banned drug or plant, and hence the offence would not be extraditable.

Emery finally has a hearing starting in Feb 2009, with a week put aside. I expect the hearing will take longer than that, and that there will be another fate in the fall of 2009.

If the law doesn't change, and if there is no massive public outcry, then I believe that Emery will be extradited and he will receive a 30 year sentence in the US.


From: Vancouver | Registered: Jul 2005  |  IP: Logged
It's Me D
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posted 14 June 2008 06:02 AM      Profile for It's Me D     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
If the law doesn't change, and if there is no massive public outcry, then I believe that Emery will be extradited and he will receive a 30 year sentence in the US.

It's just sickening


From: Parrsboro, NS | Registered: Apr 2008  |  IP: Logged

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