Preparing for the SCC Insite Case

I am sitting on an Air Canada flight en route to Ottawa for the Supreme Court of Canada hearing in the Insite case this coming Thursday.  I am taking a break from reading court materials to reflect on the long journey that has brought the fate of Vancouver’s safe injection facility into the hands of Canada’s highest court.  A few rows back sit Andrew Nathanson and Brook Greenberg, counsel for the intervener Dr. Peter AIDS Foundation and Ryan Dalziel and Thomas Moran, counsel for the BC Civil Liberties Association.  I am one of three lawyers who will be counsel at the SCC hearing for the Respondents Portland Hotel Society, Dean Wilson and Shelley Tomic.  My former boss and current mentor, Joseph Arvay Q.C., and my current office mate with whom I share space when I am wearing my hat as sole practitioner of Red Cedar Law, Monique Pongracic-Speier, will be doing the heavy lifting by arguing the Charter Section 7 and the federalism issues, respectively.

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By now, three years after the first hearing in BC Supreme Court in 2008, most people know that at the trial level, Justice Ian Pittfield found that application of the criminal laws of possession and trafficking at Insite deprived people addicted to drugs of their life, liberty and security of the person, and did so in a way that was not in accordance of the principles of fundamental justice.  While finding a Charter Section 7 breach, Justice Pittfield dismissed the argument that as a provincial health care facility Insite was “immune” from the application of the federal drug laws.  At the Court of Appeal, two of the three justices held that Insite was, in fact, immune from the federal laws.  They also upheld the finding of Justice Pittfield that application of the drug laws was a Charter breach.  VANDU, which had sought broader declarations about the application of the drug laws to addicted people and the constitutionality of the federal Health Minister’s right to issue exemptions to the drug laws,  was denied the declarations it sought.

Of course, the Insite story started long before I became involved in this case in 2007 while still a law student and working part-time at Arvay Finlay while attending UBC Law School.  Insite was the first case I ever worked on at Joe Arvay’s office.  I was tasked with reading the copious affidavit evidence in this case, researching the case law on a Charter Section 7 deprivation, and making that case that closure of Insite would deprive injection drug users in the DTES of their life, liberty and security of the person. 

It was then that I first became familiar with the names and stories of the real actors in this court case – the long, difficult and brave journeys of people struggling with addiction issues, such as Mr. Wilson and Ms. Tomic, who recounted the unsafe practices associated with injection and the physical and mental toil that addiction and the resulting health issues take on an addict; policy makers and service providers, such as Donald MacPherson and the staff at PHS, battling the real effects and harm of unsafe injections in the DTES, such as HIV and Hepatitis C transmission, overdose, and a host of other health issues;  and the medical care and research people, Drs. Evan Wood, Thomas Kerr and Julio Montaner of the BC Centre for Excellence and Drs. Gabor Maté and David Marsh.  There were many others too.  People who had been on the ground helping abate what has been described as a health epidemic and social crises.  People who – through protest, lobbying and whatever means necessary – fought for and won the right to set up North America’s only sanctioned safe injection facility in 2003.  These were the stories I read: compelling and disturbing.  My task was to formulate those stories into a legal argument.  I sat through the week-long hearing in 2008, helping Joe Arvay the best I could, hoping that Justice Pittfield would be able to relate to the heart of this case and make a just decision.

I came back to the Insite case in the early part of 2009, in my final year of law school, working with Joe on the Court of Appeal argument.  The federal government had appealed Justice Pittfield’s decision and both the PHS plaintiffs and VANDU cross-appealed the parts of the claim each had lost at trial.

The Federal Government, perhaps predictably, appealed to the Supreme Court of Canada.  Despite overwhelming scientific evidence that Insite saves lives and reduces the harm of injection drug use, the Conservatives see the issue not as about science or harm, but about morality.  The one intervener supporting the federal government’s position (as opposed to the dozen interveners supporting Insite) takes the same position. 

The evidence, however, speaks a different story.  A recent study by the BC Centre for Excellence published in the prestigious journal, The Lancet, confirms that Insite saves lives.  The researchers found that Insite was associated with a 35% decrease of overdose deaths in the neighbourhood where the safe injection site is located.  This study added to a large collection of research studies that confirm that Insite helps people into treatment, reduces the harms associated with unsafe injection, reduces the harms of overdose, and more.  There has not been one study demonstrating any harmful effect of Insite.

But, the Conservatives cannot make a claim to the moral high ground when its strategy – more enforcement and treatment – simply ignores the reality faced by addicted persons in the DTES.  Enforcement criminalizes behaviour for which people suffering from addiction have no control and does nothing to reduce the availability of drugs.  Treatment, while desirable, is out of reach for many addicts for a complex set of reasons, and cannot help them if they do not survive to the point where they are able to enter a program.  When the incontrovertible science demonstrates that Insite saves lives, the real moral decision for me is quite clear.