B.C. judges rule against Ottawa in safe injection fight
Equating a "supervised injection site" where drug addicts consume heroin, cocaine and crystal methamphetamine to a hospital, the B.C. Court of Appeal has dismissed a federal government challenge aimed at closing the facility.
In her reasons for judgment released on Friday, Madam Justice Carol Huddart wrote that federal laws prohibiting the possession and use of controlled substances at the Vancouver facility -- called Insite -- cannot supercede provincial health care initiatives.
The doctrine of "interjurisdictional immunity" applies, she wrote, because Insite "provides a health care program" that is provincially funded and supported by B.C.'s attorney general, the regional health authority, the Vancouver Police Department and other local stakeholders.
"The provision of health care services is what makes a hospital a hospital, what makes health care a provincially regulated activity," she wrote. "It is the indisputable intrusion of the federal government into the provision of medical services at the level of doctor and patient that is happening at Insite. Could Parliament legislate to effectively prohibit a doctor from using a scalpel?"
Madam Justice Anne Rowles agreed. The third Appeal Court member, Madam Justice Daphne Smith, dissented. In cases where federal law and provincial activity conflict, she found that the application of "paramountcy" applies and the law has priority.
The federal government is expected to appeal to the Supreme Court of Canada. In the meantime, Insite will remain open.
Situated in the heart of Vancouver's notorious Downtown Eastside, where drugs are openly sold and consumed, Insite is hailed by most local health care workers and community activists as a disease-free "harm reduction" facility where addicts can inject toxic drugs in a relatively safe environment, using clean equipment and in front of health care professionals.
Inaugurated in 2003 as a scientific research pilot project, Insite received a temporary exemption from federal laws that prohibit the use and the traffic of controlled substances. Extensions to the temporary exemption were granted until the current federal government declared it was no longer prepared to support Insite.
Faced with closure in 2008, Insite went to B.C. Supreme Court, where its lawyers argued that enough scientific data had accumulated to prove it was a valid health care resource that needed to remain in the community.
While Mr. Justice Ian Pitfield did not decide on that evidence, he did find that Insite plays a positive role in the health and welfare of its clients, who number in the hundreds. He also found that certain sections of Canada's Controlled Drugs and Substances Act were inconsistent with the Charter of Rights and Freedoms. His judgment allowed Insite to remain open, pending some sort of resolution or decision on appeal.
Ironically, Mr. Justice Pitfield rejected the same "interjurisdictional immunity" argument that convinced the Court of Appeal to find in Insite's favour on Friday.
The lawyer who put forward the argument said it's rare for a Canadian court to shield a provincial power from federal law. "Usually it's the other way around," says Daniel Webster, counsel for the British Columbia Civil Liberties Association, which intervened on behalf of Insite during both the trial and the appeal process.
Mr. Webster said the Appeal Court's decision could encourage other health authorities to allow drug user sites to open in their own jurisdictions and provinces. These sites might include facilities reserved for the inhalation of crack cocaine.
Prior to Friday's ruling, the non-profit society that operates Insite had approached the federal government for a crack-cocaine inhalation room exemption, similar to its contested injection site exemption. The society said it received no response. However, one of the respondents in the Insite case, the Vancouver Area Network of Drug Users, has indicated it will establish a crack cocaine inhalation site in the Downtown Eastside.
Shielding Insite from federal laws might also weaken drug enforcement, Madam Justice Smith suggested on Friday in her dissenting judgment.
It "would significantly impair the federal criminal law mandate over controlled substances and create a gap in its general application across Canada," she wrote. "The effect "would require both [provincial and federal] jurisdictions to be willfully blind to what Canada describes as ‘the chain of illegal distribution' or how the heroin injected by users of Insite is obtained...
"The creation of ‘enclaves' where illicit drugs may be brought for intravenous drug use, without the potential for prosecution, could eviscerate the efficacy of a criminal law validly enacted by Parliament that seeks to address the broader context and consequences of illicit drug use across the entire supply chain."
Her two Appeal Court colleagues did not share these concerns. Nor, wrote Madam Justice Rowles, is there any "serious debate about the need for Insite as a health care facility." Madam Justice Huddart went further, declaring that, contrary to claims made by the Government of Canada, Insite is not considered controversial.
January 15, 2010