Feature: BC Supreme Court Rules Vancouver Safe Injection Site to Stay Open, Federal Drug Law Controlling It Unconstitutional

In a ruling that stunned and very pleasantly surprised advocates for Vancouver's Insite safe injection site, the British Columbia Supreme Court Tuesday held that Insite can stay open indefinitely. Canada's federal drug law is unconstitutional when applied to Insite because it conflicts with the Charter of Rights and Freedoms and health matters that are a provincial responsibility, the court held.

The future of Insite has been a bitter political battle between the Conservative federal government of Prime Minister Stephen Harper and harm reductionists, scientists, academic specialists, and broad swathes of the Vancouver community, including Mayor Sam Sullivan and BC Health, the provincial health agency. Begun in 2003, under Harper, Insite has limped along on a series of temporary exemptions from Canada's drug law. The latest was set to expire June 30, and a campaign to save it was in full swing when the court made matters moot.

While the political fight was brewing, some actors sought recourse in the courts. Represented by Vancouver attorney John Conroy, the Portland Hotel Society, which operates Insite for BC Health, and the Vancouver Area Network of Drug Users (VANDU) filed suit in the provincial courts seeking protection for the site, and in particular, for workers at the site who might be at risk under the federal drug law. By imposing an absolute, unqualified prohibition on the possession of controlled substances, the law prevented access to Insite and its health services. That was an improper expansion of the federal government into what should be a provincial sphere, they argued. It was this lawsuit that brought Tuesday's victory.

In his ruling in PHS Community Services Society v. Attorney General of Canada, Justice Ian Pitfield declared part of the Controlled Drugs and Substances Act unconstitutional and null and void, and gave Ottawa one year to rectify the law so it does not interfere with medical treatment. In the meantime, Pitsfield declared, Insite is constitutionally exempt from the drug law.

"In my opinion," Pitfield wrote, "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 drug law blocks addicts from receiving health care that could reduce their chances of overdose or death by infectious disease, and that violates their rights under the Charter, Pitsfield wrote. "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 counseling and consultation that may lead to abstinence and rehabilitation," he said. "All of this is health care."

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," he wrote. "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."

Advocates for Insite, who fought for years to create it, then again to keep it going in the face of the ideological opposition of the Conservatives, wavered between ecstasy and disbelief. "I just want to cry, I'm so ecstatic," Liz Evans, one of the directors of PHS, told the Vancouver Sun.

"This is a significant victory for the people in our community," said New Democratic Party provincial parliamentarian Jenny Kwan, in whose district Insite is located.

NDP Member of Parliament Libby Davies, who represents the district at the federal level, went on the offensive in Ottawa Wednesday. "Mr. Speaker, yesterday BC's Supreme Court decision makes it abundantly clear that Insite, the supervised injection facility in east Vancouver, is a health facility," she said during parliamentary questions. "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?"

While Health Minister Tony Clement denied any responsibility for any decision on an appeal, he let it be known his government was not happy. "We are disappointed with the judgment," he responded. "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."

"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," Davies retorted. "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."

Clement did not respond, except to say, "We are here to help our kids, prevent them from getting on drugs in the first place. We are here to help addicts."

If he wants to help addicts, Clement should quit opposing the safe injection site, said the Canadian HIV/AIDS Legal Network. "The court has recognized that criminalizing drugs and drug users cannot be allowed to deny people the benefits of a health facility such as Insite, and that to do so would violate the constitutional rights of some of those who are most vulnerable and in need of such health services," said Richard Elliott, the network's executive director.

"It's time to end the waffling and misdirection that we've seen so far," said Elliott. "The evidence is extensive and shows the benefits of such health facilities, including reducing injecting behavior that risks transmitting HIV and hepatitis C. Ideology cannot be allowed to block the delivery of health services and perpetuate a public health crisis."

Update: Late Thursday the government announced it would appeal the decision.