LAWYERS GIRD FOR LEGAL BATTLE OVER INSITE
Ottawa Shouldn't Make It Easier For Drug Users To Break The Law, Federal Official Tells Court
Author: Wendy Dueck

Globe and Mail (Canada)
Tue, 28 Apr 2009
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VANCOUVER -- Vancouver's Insite clinic has become the focus of a constitutional showdown in British Columbia's highest court, where a federal lawyer yesterday argued the government is under no obligation to make it easier for citizens to break the law by condoning a supervised injection site.

"It should be stressful to break the law," Department of Justice lawyer Robert Frater said yesterday in the B.C.  Court of Appeal.  "The government is under no obligation to provide [its citizens] with a safer way of breaking the law."

Making drug-related laws unconstitutional because they are difficult for drug addicts to obey would be "capitulation" along the lines of changing arson laws to accommodate pyromaniacs, Mr.  Frater added.

That argument mischaracterizes positions taken by Insite supporters, and by the B.C.  Supreme Court judge who last year ruled some sections of Canada's Controlled Drugs and Substances Act were unconstitutional because they deprived addicts of access to Insite services, Insite lawyer Joseph Arvay responded.

"Where the law stands between ill people and the health care they need, that law deprives those people of their rights to life and security of person," said Mr.  Arvay, who is representing PHS Community Services in the case.

Without Insite, addicts will inject in back alleys and flophouses, putting themselves at risk of death and disease and potentially passing on infections to others, he added.

The Appeal Court hearing, scheduled for three days this week, is the latest skirmish in a long-running battle over Insite, a Downtown Eastside facility that opened its doors in 2003 and has since been the site of more than one million drug injections.

The clinic, to which users bring their own drugs, opened as part of a plan to tackle an epidemic of HIV-AIDs and drug-overdose deaths in the Downtown Eastside.

To operate the facility, the Vancouver Coastal Health authority applied for exemptions under the CDSA that would allow users to inject drugs at the clinic, and staff to monitor that activity, without staff or patients running afoul of federal drug laws.

The initial exemptions were granted for three years beginning in September of 2003 and extended first to the end of 2007 and subsequently to June 30, 2008.

With the clock running down on Insite's exemption, PHS Community Services Society ( which operates the clinic under contract to VCH ) and two individuals last year launched a court action in a bid to keep the clinic operating on constitutional grounds.

In a landmark ruling last May, Mr. Justice Ian Pitfield of the Supreme Court found sections of the CDSA that relate to possession and trafficking are inconsistent with Section 7 of the Canadian Charter of Rights and Freedoms.

"The blanket prohibition contributes to the very harm it seeks to prevent," Judge Pitfield wrote in his reasons for judgment.  "It is inconsistent with the state's interest in fostering individual and community health and preventing death and disease."

In the ruling, the federal government was given until June 30 of this year to redraft the provisions of the CDSA against possession and trafficking to accommodate Insite's operation.  In the interim, users and staff were granted a constitutional exemption that allowed the clinic to operate.

On June 3 last summer, the federal government filed its notices of appeal relating to Judge Pitfield's decision.

This week's Appeal Court hearing is expected to feature constitutional debate and federal-provincial jousting over jurisdiction over community health services.