Vancouver safe-injection site saved by judge's ruling that says federal drug laws are unconstitutional

The uncertainty is over.

Insite, the downtown Vancouver safe-injection site (pictured right) and the subject of a great deal controversy across Canada, cannot be cancelled by the Conservative federal government, a number of news outlets reported today. The government had been equivocating about granting Insite another exemption from federal drug statutes.

And that's not all: yesterday's ruling by BC Supreme Court justice Ian Pitfield also found sections of Canadian federal drug law, the Controlled Drugs and Substances Act, to be unconstitutional, for violating drug users' rights under Section 7 of the Canadian Charter of Rights and Freedoms, which reads: "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."

In his strongly worded decision, Justice Pitfield writes:

"Society cannot condone addiction, but in the face of its presence it cannot fail to manage it... 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. Society does that for other substances such as alcohol and tobacco. 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, an aspect of which is that the substance that resulted in the addiction in the first place will invariably be ingested in the short-term, and possibly in the long-term, because of the very nature of the illness. Simply stated, 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."

This decision in favour of drug addict litigants Shelly Tomic and Dean Edward Wilson and the Portland Hotel Society, which operates Insite, was not -- to put it mildly -- the result that the federal government had been hoping for. To be told that not only is it illegal to decide the future of the divisive project, but in addition that the laws governing drug enforcement must be revised, flies in the face of the government's longstanding position. Justice Pitfield has now given the government until June 30, 2009 to bring the relevant laws in line with his decision.

Since it came to power, the Harper government has been accused of hostility towards Insite and other harm reduction programs. In an article in the September 15, 2007 issue of the National Review of Medicine, I examined the feds' reluctance to provide longterm extensions to the clinic's licence to operate. (Physicians from the BC Centre for Excellence in HIV/AIDS wrote an accompanying opinion piece about the issue.) "The current federal government has philosophical objections to harm reduction initiatives. They're trying to obscure the evidence by saying the research on Insite is not clear," said Dr Stephen Hwang, of Toronto's Centre for Research on Inner City Health, who rallied over 130 scientists and physicians to sign a petition opposing the government's stance on harm reduction. Dr Keith Martin, a former addictions physician who now sits as a Member of Parliament in the Liberal caucus, told me he left the now-defunct Reform Party because of the ideological and unscientific approach to addictions and the law taken by his colleague at the time, Stephen Harper. Dr Martin told me to read an essay Mr Harper wrote about the Left called "Rediscovering the Right Agenda" from Report magazine in 2003 for an example. One passage from that essay reads:

"This descent into nihilism... leads to silliness such as moral neutrality on the use of marijuana or harder drugs mixed with its random moral crusades on tobacco. It explains the lack of moral censure on personal foibles of all kinds, extenuating even criminal behaviour with moral outrage at bourgeois society, which is then tangentially blamed for deviant behaviour."

Justice Pitfield puts that argument to shame in his decision:

"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, as I have discussed elsewhere in these reasons, must lead to the opposite conclusion."

Insite's supporters are rejoicing today after hearing the news of the decision. CBC News published a round-up of comments from people involved in the case this morning:

“It's a major victory, really — a judge for the first time in Canada has said that this project is about health care so the Controlled Substance and Drugs Act does not apply to it, so that is a major victory." - Mark Townsend, Portland Hotel Society director

"This decision is a huge victory for people in our community, for people who are marginalized in the community, who are struggling day by day to survive, and this decision is the foundation on which I think we can build on." - NDP MLA Jenny Kwan (Vancouver-Mount Pleasant)

"The court ... affirmed the right of people with serious addictions to access the health care they need to deal with the addictions and the coincidental health affects of those addictions." - Monique Pongracic-Speier, the lawyer who represented the Portland Hotel Society, Mr Wilson and Ms Tomic.

The Vancouver Sun's Ian Mulgrew called Justice Pitfield's decision "courageous."

It's unclear at this point to what extent the recent federally commissioned review of Insite played in Justice Pitfield's decision. That review, which I wrote about when it was released on April 14, was largely positive; it would be an ironic twist if the government's own study proved instrumental to the defeat of its argument in court.

It also remains unclear how this decision will affect the potential development of other harm reduction programs, including more safe-injection sites and projects like the North American Opiate Medication Initiative (NAOMI), which Dr Martin has been touting for expansion recently. In an email to me on Monday, he said, "I am still fighting to keep Insite open and expand this program and NAOMI into other jurisdictions such as Victoria, Toronto and Winnipeg."

It will be very intersting to see what happens tomorrow morning during a briefing scheduled at the House of Commons Standing Commitee on Health, where Health Minister Tony Clement is scheduled to appear alongside a group of researchers mostly sympathetic to harm reduction, including Julio Montaner and Thomas Kerr from the BC Centre of Excellence on HIV/AIDS. The meeting begins at 10am Eastern time. You can watch it on ParlVu here.


Update, Thursday, May 29: During a briefing earlier today in front of the House of Commons Standing Committee on Health, Tony Clement announced that he will be asking Justice Minister Rob Nicholson to appeal the British Columbia Supreme Court's decision.


Photo: Vancouver Coastal Health/Insite

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