Drug laws unconstitutional: B.C. Supreme Court
Last Updated: Tuesday, May 27, 2008 | 10:31 PM PT
The Canadian Press
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.
However, 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 Insite, 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 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 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 government "studying" decision
Federal Health Minister Tony Clement issued only a brief statement on the ruling: "We are studying the decision."
A spokesman for Public Safety Minister Stockwell Day declined comment, and Justice Minister Rob Nicholson was not immediately available for comment.
The lawyer for the Portland Hotel Society, which runs Insite, said the judge recognized the site provides a necessary service to people battling addiction.
"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 said.
Ruling has national implications
Pongracic-Speier said while the decision was based on the situation in the Downtown Eastside, it has implications across the country.
"So if the Parliament of Canada decides that it's not going to amend the laws ... then those laws are off the books," she said.
"They [supporters of the safe-injection site] don't want to see open-season on trafficking, and it would be my expectation that the federal government will update the laws."
John Conroy, lawyer for the other plaintiff, the Vancouver Area Network of Drug Users, said Ottawa must now update its laws to ensure provinces are free to provide health-care services to addicts.
"The government's options are to now create a better exemption process that recognizes the provincial health jurisdiction," he said.
"So when the province is carrying out a genuine health service ... there isn't a dependence on the whim of the federal minister to exempt people."
The Portland Hotel Society celebrated the ruling.
"What he's saying is, well, yes, if this service is withdrawn, people will die," said Mark Townsend, executive director.
"It's very important that you control drugs and heroin and trafficking, but it's overboard to then condemn people to die, is basically what he's saying."
Drug addiction is a health issue: Insite supporters
Federal lawyers argued before the court that the Charter of Rights and Freedoms doesn't protect the right of drug addicts to shoot up. They told the B.C. court that the future of Vancouver's supervised-injection site is a matter of political policy, not law.
But the site has a long list of supporters who have lobbied Ottawa for its continued operation, including health and medical experts, Vancouver Mayor Sam Sullivan 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."
Neil Boyd, a B.C. criminologist who was hired by the federal government to study the impact of Insite, said the ruling reinforces a changing way of looking at drug addiction.
"It does seem to make the point that over the last two decades has been made again and again: That the problems of drug use are best understood as public health problems ... and not as problems for the criminal law," said Boyd, who teaches at Simon Fraser University.
Boyd noted that there are still several levels of appeal available to the federal government, but he said the B.C. ruling does offer yet another opinion supporting Insite that will put more pressure on Ottawa.
"As a lawyer, I think I have to be cautious and say it's not the end of the story," Boyd said.
Sullivan also predicted Tuesday's judgment won't put an end to the issue.
The Vancouver mayor 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."
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