In a unanimous ruling, the Supreme Court of Canada has dismissed a federal government appeal to try to shut down Insite, which is Vancouver's supervised-injection site.
It's a major victory for drug users Dean Wilson and Shelly Tomic, the Vancouver Area Network of Drug Users, and the operator of Insite, the PHS Community Services Society.
"“This is an historic ruling. We are extremely grateful for the verdict—now InSite can keep on saving lives,” PHS executive director Liz Evans said in a news release issued shortly after the decision.
PHS and the drug users went to court to fight Ottawa's decision not to grant an exemption in 2008 under the Controlled Drugs and Substances Act.
They won a ruling in B.C. Supreme Court that the federal government's decision—which would have closed Insite—was unconstitutional because it violated drug users' right to life, liberty, and security of the person under Section 7.
The judge in that case granted Insite an exemption from federal drug laws, which allowed it to stay open.
The federal government appealed and lost in the B.C. Court of Appeal, and then lost again today in the country's highest court.
Writing for the court, Chief Justice Beverley McLachlin ordered the Minister of Health, Leona Aglukkaq, to grant Insite an exemption under Section 56 of the Controlled Drugs and Substances Act.
The infringement at stake is serious; it threatens the health, indeed the lives, of the claimants and others like them," McLachlin wrote. "The grave consequences that might result from a lapse in the current constitutional exemption for Insite cannot be ignored. These claimants would be cast back into the application process they have tried and failed at, and made to await the Minister’s decision based on a reconsideration of the same facts. Litigation might break out anew. A bare declaration is not an acceptable remedy in this case."
After an epidemic of HIV/AIDS and hepatitis C on the Downtown Eastside in the late 1990s, health officials concluded that the creation of a supervised-injection site would ameliorate the crisis.
"After years of research, planning, and intergovernmental cooperation, the authorities proposed a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply when they quit drugs for good," the court ruling states. "The proposed plan included supervised drug consumption facilities which, though controversial in North America, have been used with success to address health issues associated with injection drug use in Europe and Australia."
The Liberal government provided a conditional exemption in 2003 under the Controlled Drugs and Substances Act. The facility opened eight years ago.
"It is a strictly regulated health facility, and its personnel are guided by strict policies and procedures," the decision notes. "It does not provide drugs to its clients, who must check in, sign a waiver, and are closely monitored during and after injection. Its clients are provided with health care information, counselling, and referrals to various service providers or an on‑site, on demand detox centre. The experiment has proven successful. Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area. It is supported by the Vancouver police, the city and provincial governments."
The only way Insite could be shut down is if the Conservative majority in Parliament votes to invoke the "notwithstanding clause" (Section 33 of the Constitution Act, 1982).
It grants legislators the right to pass legislation overriding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982. The federal government has never used the notwithstanding clause to override fundamental freedoms in the charter this since the constitution was repatriated in 1982.
Meanwhile in the same decision, the justices dismissed VANDU's cross-appeal against the constitionality of Controlled Drugs and Substances Act prohibition on illegal-drug possession. "The argument is that because addicted persons have no control over the urge to consume addictive substances, they are forced by fear of arrest and prosecution to procure and consume drugs in a manner that threatens their lives and health, and which causes them a high level of psychological stress," McLachlin wrote. This is a very different argument than that advanced by Tomic, Wilson and PHS."
The court ruled that "VANDU’s contention lacks an adequate basis in the record."
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