Canadian Court to determine constitutionality of law preventing supervised drug-injection sites

Apr 30 2009

The British Columbia Court of Appeals this week is hearing a case to decide whether certain sections of Canada's Controlled Drugs and Substances Act that prevent injection drug users from accessing services at the supervised drug-injection facility Insite in Vancouver, British Columbia, are constitutional, Toronto's Globe and Mail reports (Stueck, Globe and Mail, 4/28).

Insite, which is funded by the British Columbia provincial government and has received research funding from the Canadian government, includes booths for IDUs to inject drugs as well as room in which users can be monitored for overdoses. Vancouver has one of the highest illegal drug use rates in North America, with as many as 12,000 IDUs in the Vancouver metropolitan area, 30% of whom are HIV-positive and 90% of whom have hepatitis C. When the facility opened in September 2003, it received a three-year exemption from CDSA, which bans heroin use, to conduct a pilot study on the site's role in reducing drug use and crime in Vancouver's Downtown Eastside (Kaiser Daily HIV/AIDS Report, 8/8/08). The exemption was extended to the end of 2007 and later to June 30, 2008.

Two individuals last year initiated court proceedings to allow Insite to continue operation after June 30, 2008. B.C. Supreme Court Justice Ian Pitfield in May 2008 issued a ruling in the case, saying that certain sections of the CDSA relating to drug possession and trafficking are inconsistent with the Canadian Charter of Rights and Freedoms. "The blanket prohibition contributes to the very harm it seeks to prevent," Pitfield wrote in his ruling, adding, "It is inconsistent with the state's interest in fostering individual and community health and preventing death and disease."

In his ruling, Pitfield gave the Canadian government until June 30, 2009, to rewrite the CDSA possession and trafficking provisions, which would enable Insite to continue operation. Insite received a constitutional exemption in the interim allowing the facility to continue to operate until the CDSA sections were rewritten. The federal government appealed Pitfield's ruling on June 3, 2008.

Robert Frater, an attorney for the Canadian government, on Monday argued that the federal government is not required to provide a supervised drug-injection facility, such as Insite, for IDUs. "It should be stressful to break the law," Frater said, adding, "The government is under no obligation to provide (its citizens) with a safer way of breaking the law." Insite attorney Joseph Arvay said the CDSA "stands between ill people and the health care they need" and "deprives [IDUs] of their rights to life and security of person" (Globe and Mail, 4/28).