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The Insite case: it should never have ended up in court

There’s little debate about the health questions and crime implications of Insite


 

The case of the Vancouver supervised injection facility called Insite was being heard at the Supreme Court of Canada today, and I’m sure not going to pretend here to offer any instant untangling of the lawyers’ arguments about clashing federal and provincial jurisdictions.

The two levels of government are battling because British Columbia claims the right to keep Insite open to provide a health service to addicts, while Ottawa asserts the right to shut it down to maintain the uniform national application of criminal law.

It will be interesting to see how the court rules. But from what I heard in court this morning, combined with what I knew already about Insite, it seems to me this case should never have ended up in court in the first place.

The apparent conflict here—between criminal law and health policy—might sound like exactly the sort of thing we need wise judges to sort out. But the statute at the centre of this dispute, the Controlled Drugs and Substances Act, seems to me to have been written with ample flexibility to allow any elected federal government, acting in good faith, to uphold law and order while dealing with the vexing health problems arising from drug addiction.

The act outlaws possession of prohibited drugs, of course. But it also gives the federal cabinet the power to regulate exceptions for “medical, scientific and industrial” reasons. And it allows for a special exemption to be granted where the health minister decides that’s necessary “for a medical or scientific purpose or is otherwise in the public interest.”

It’s this sort of exemption that was granted, initially for three years, by the previous Liberal government, allowing Insite to set up shop in 2003 as North America’s first state-sanctioned facility where drug addicts could go to inject themselves. The Conservatives, however, after granting two extensions, finally decided not to renew Insite’s exemption, prompting the legal battle that’s now reached the top court.

We rely on the Supreme Court to refine or even revolutionize law when society changes and the old rules don’t do the job anymore. But the Controlled Drugs and Substances Act was passed in 1996, not so long ago, and the room it allows for health and science exemptions worked just fine in the case of Insite. The exemption required careful study into the facility’s impact. That copious research found, among other benefits, that addicts who use the facility are more likely to go into detox, or at least get treatment for injection-related infections. (Here is a story on only the latest research.)

So the health policy argument in Insite’s favour is overwhelming. That leaves the federal government’s preoccupation with criminal law. Yet there’s no evidence that Insite leads to more lawlessness in Vancouver’s troubled downtown eastside, as a federal advisory panel found.

It’s true that some members of the RCMP disliked Insite enough to wage a rather sneaky campaign to try to discredit the facility several years ago. As first reported in Maclean’s last summer, however, very senior Mounties, once they learned more about Insite, dropped any opposition and, in fact, acknowledged privately the good the facility does, although the RCMP has declined to publicly admit that top officers came to recognize those benefits.

If there’s little debate about the health questions and crime implications of Insite, why is its future being hashed over in court?

Well, to hear the federal government’s lawyers this morning, it’s a matter of preventing provinces from being allowed to “carve out exceptions to criminal statutes where the application of the criminal provision would affect delivery of a provincial health service.” What Ottawa’s lawyers are not arguing, so far as I can tell, is that Insite fails to provide a service that would prompt any reasonable federal health minister to extend the exemption that the act so sensibly allows.

So here’s the situation: a good law allowed a bold experiment that produced positive results. How could that end up as the basis for a case before the country’s highest court? Only when the government of the day decided to ignore the positive results to avoid the inevitable conclusion that it should continue to use the good law to prolong the bold experiment.

Don’t be too distracted, then, by the weighty legal arguments now in play. A pure political decision, and a very weakly defended one at that, set this train in motion, and all the jurisdictional and constitutional questions are merely baggage.


 
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The Insite case: it should never have ended up in court

  1. Bravo Mr. Geddes! I wholeheartedly concur.

    Science-deniers costing taxpayers money for a pointless court battle.

  2. The Harper Government closely follows the Bush administration in the US in denying the usefulness of an evidence-based approach to governing. The cancellation of the mandatory long-form census is perhaps the most blatant example, but the fight over InSite is close behind. The muzzling of government scientists is also near the top of the list.

    • There’s a deep vein of anti-intellectualism in neo-con philosophy, at least as I see it. Stephen Colbert probably nails it the best when he riffs on what his gut thinks, but I also think it has to do with maintaining their creation myth of eternal underdogs who have earned everything in life themselves (as opposed to being born to privilege). Without suggesting liberals/lefties are smarter, I sometimes wonder if there isn’t a correlation between engagement in such fields as writing, research and journalism, and a tendency to lean left. Minimally, it’s hard to argue that self-proclaimed right-wing research and “journalism” have often measured up to the mainstream they claim to improve upon.

      • It strikes me as a huge case of projection. Those on the ideological right know that when they start looking to research something, or to report something, they’re doing it to confirm what they already believe, or to impress upon others what they already believe.

        Thus, any alternative media or research must be doing the same thing.

        And, to be fair, any research that is simply looking to confirm bias rather than reality will find it has problems, whether that bias comes from the right or the left. 

  3. “A pure political decision, and a very weakly defended one at that, set
    this train in motion, and all the jurisdictional and constitutional
    questions are merely baggage.”

    If anyone ever starts up a Geddes fan club, I’ll buy a lifetime membership.

    I dislike it when governments of any stripe resort to court actions – or waste our money appealing decisions they don’t agree with. It almost always runs too close to the coward’s recourse.

    My memory is fuzzy, but didn’t there used to be a political party opposed to the courts determining public policy? It’ll come to me at some point, but it’s a shame they never moved beyond the fringes to any position where they could achieve that laudable goal.

    • I dislike it when governments of any stripe resort to court actions – or
      waste our money appealing decisions they don’t agree with. It almost
      always runs too close to the coward’s recourse.

      What’s the alternative? Send in the military to enforce laws that are within its constitutional competence to enact? Allow creative superior courts to dictate, for good and all, the outer boundaries of democratic decision making?

      • What’s the alternative? Send in the military to enforce laws that are within its constitutional competence to enact?

        That would be difficult here: the provinces don’t have militaries.

        • Huh? I mean the federal government sending in the military to arrest addicts and health care workers for breaking what is currently a criminal offense.

          • But here, it’s the province that needs to assert its right to legislate within its jurisdiction.

          • The lower court ruled a federal law unconstitutional; the federal government appealed. Sean seems to be disparaging the federal government for challenging the ruling in court, and I’m wondering what he thinks is an alternative option for a federal government that reasonably believes it has enacted a valid law that the province is flouting.

          • Trying to understand…

            The lower court ruled which law (or which part of which law) unconstitutional?

            It can’t be that the entire Controlled Substance law was thrown out, was it?

          • The lower court ruled that certain provisions of the CDSA are unconstitutional insofar as they are applied to Insite.  Or, to be more technical, they found that if the provisions of the CDSA (regarding possession and trafficking of illegal drugs) were unconstitutional if applied to Insite’s staff and clientele, and that the provisions themselves are unconstitutional until sufficiently narrowed to exempt those to whom it would be unconstitutional if applied.

          • OK.  I’ve done some perusing, and grudgingly agree (happy to agree with you, grudging insofar as its bogus that this ended up in the courts in the first place).

            Perhaps a better ruling from the lower court would have allowed “us” to end up at a more appropriate outcome. 

          •  For me, I don’t know what a “more appropriate outcome” might have been – it’s a tricky legal issue and from what I can tell the lower courts may have been wrong, but if so not by a wide margin.  Unless you mean a ‘more appropriate outcome’ in the sense that the federal government would be reasonable and rational about the issue, in which case I have a bridge in Estevan for sale.

          • Ummm, both, I think…

            I don’t actually have a ‘more appropriate’ ruling from the lower court in mind; it was wishful thinking more than anything else. What if the lower court had just dismissed the case?

            And yes, ‘more appropriate outcome’ from the government side would be great, but I’m fully aware – as you are – of the likelihood of that happening.

            Btw, how much for that bridge? Are there toll revenue opportunities? ;-)

          • Well, the ideal alternative would be for them to recognize that it’s a bad law and change it. Given that they’re not about to do something so reasonable as that, sure, defending the law in court is the only way to go about things. And yes, as a general rule there’s nothing wrong with governments doing so. It just frustrates a lot of us that they want to do so.

            And I know that I’m being something of a dick here, but I think it’s important to make the point that this is not simply a case of federal-law-versus-constitution. There’s a strong provincial interest at play here, and some people seem not to realize that.

          • I couldn’t agree more.  In fact, if you read the Court of Appeal ruling, it smacks of unrelenting reasonableness and wisdom, from a political/policy perspective.  If the respective governments had made the decision the Court did, for the reasons the Court made it, very few would have reason to gripe.  The problem for me is whether it’s the court’s job to make that decision. 

            And yes, there’s a very strong provincial interest involved – not to mention the interests of Vancouverites and the actual users of Insite – I certainly don’t argue with that, and as a result fully understand the frustration of yourself, PW, Geddes and others at the government’s decision.  It’s just not an open and shut case legally, is all I’m suggesting.

            And I don’t think you’re being a dick, despite the fact that ‘people who disagree with me’ are presumptively classified by my brain into the ‘dickish’ column.

          • I’m not so sure you would get wide agreement that laws controlling illicit drugs like heroin are bad laws.  And I don’t think it makes much sense to say you can open up a clinic where federal laws can be ignored.

            I think that in a parliamentary democracy, it’s up to parliament to decide what is a bad law and what isn’t, and while you’re certainly entitled to your opinion, I don’t think you’re entitled to the expectation that everyone else has the same opinion.

          • 1. I certainly won’t get widespread agreement that the CDSA as a whole is bad law, but I do seem to be getting fairly widespread agreement that it’s bad law to the extent that it applies (or purports to apply) to Insite.

            2. It’s not a question of “ignoring federal laws” at Insite. It’s a question of whether federal jurisdiction extends to its operation. (There’s also a Charter issue, but frankly I find that both less interesting and less persuasive.)

            3. Of course it’s up to Parliament to decide what’s bad law, policy-wise; that’s why I expressed my desire that it would come to share my opinion in this case.

            3a. But we do have a constitution.

            4. How on earth do you think I “expect that everyone else has the same opinion”? I would’ve thought that my major distinguishing characteristic was my constant awareness of, and exasperation at, how FEW people share my opinions.

      • I’m not sure where to start if you honestly believe the only options are force or courts.  Downstream from here, I think you asked what Parliament is for.  It wouldn’t be implausible for this government to attempt a reworking of the law, if they wanted.  And I’m not quite sure how to square a distaste for the courts deciding “for good and all, the outer boundaries of democratic decision making” with what Harper is up to now.

        Short version:  one cannot decry activist courts on the one hand, and then try to weasel through policy with the very same courts on the other.  Does anybody freakin’  believe that the means are no less important than the ends, anymore?

        •  Short version:  one cannot decry activist courts on the one hand, and
          then try to weasel through policy with the very same courts on the
          other.

          I think you’re misunderstanding what happened.  The federal government passed a law within their competency and expected it to be followed, and not directly undermined, by the provinces.  That law was then challenged as unconstitutional by organizations involved in administering Insite and a number of clients of Insite (i.e. the federal government was sued).  The lower court found the law unconstitutional and of no force and effect.  The federal government’s options were to appeal the ruling or abide by it – they didn’t put the issue into the court system, they’re merely defending what they believe to be a validly enacted law within their exclusive competence. 

          I’m not sure why you think it’s the federal government that is trying to weasel something through the courts here, other than perhaps their demonstrated penchant for so weaseling – if so, it’s a completely understandable mistake.

          • I do understand the particulars of this case, and I stand by the weasel characterization.   Government lawyers would have warned them of the legal muddiness of their law in the first place, and they had every opportunity to engage in either rejigging the law or working with the various stakeholders to find a satisfactory means of achieving the goal.  Let’s not pretend they were acting in good faith, measured assessment of the situation, and reasonable judgement; only to find themselves shanghaied into court participation.

            They knew darned well this would happen, and chose this course knowing there was no political downside to the potential outcomes.  Weasels.  Preston Manning must be turning in his grave.

          • But they were shanghaied into court participation – if they had their way, there’d have been no suit, and no challenge.  The law (you can’t possess or traffic heroin) has been on in the books for some time, and is entirely constitutional, as far as it goes.  The claim here is that the law shouldn’t apply to a certain group of people for whom its application would have negative results. 

            Knowing darned well that someone is going to take you to court, doesn’t place you under a duty to accede to their demands, right?  So if someone says, ‘don’t say that or I’ll sue you’, you have the right to say ‘go ahead and sue me, I think I’m on solid legal ground to say what I want’.  The federal government has a strong argument that passing a law banning the possession, use and traffic of hard drugs is within it’s sole competence, and that there is no constitutional duty to make exceptions.

            With respect, I think your problem here is that the federal government isn’t adopting a policy you want it to adopt, not that the federal government has deviously contrived to have the courts rule on whether or not they can pass criminal laws of universal application.

          • “warned them of the legal muddiness of their law”

            Legal muddiness?  The law that says it’s illegal to possess or traffic heroine?  I’m pretty sure that most people would find nothing muddy about such a law, and most people would applaud such a law.  Even the proponents of Insite are looking for an exemption, but would likely also agree that in most circumstances the law is a good one.

  4. The answer to your question is: Randy White.

    Ex-Reform MP and founder of The Drug Prevention Network of Canada

    They hate Insite

  5. We rely on the Supreme Court to refine or even revolutionize law when society changes and the old rules don’t do the job anymore

    What do we have Parliament for again?

    That leaves the federal government’s preoccupation with criminal law. Yet there’s no evidence that Insite leads to more lawlessness in Vancouver’s troubled downtown eastside, as a federal advisory panel found.

    The point isn’t that it leads to illegal activity, it’s that the activity itself is illegal, right? The federal government says what’s criminal. The provincial government has jurisdiction over health care provision, but it doesn’t have the authority to grant exemptions from criminal law provisions, however wise they might think those exemptions are. Frankly, I don’t really understand the point of this article; if someone wants to explain it to me, that would be great.

    • Me neither. The article makes no sense. The government makes the laws, the courts enforce them. Seems pretty simple. The site would have been illegal, but the government granted an exemption. The exemption expired. Now the site is illegal. Why on earth is the Supreme court needed for such a simple case?

      • There actually are a number of serious legal issues – the provinces have jurisdiction over health care provision, and there’s no doubt that Insite is a health care facility. It’s not a simple case. It relies on complicated (and inconsistently applied) federalism doctrines like interjurisdictional immunity (don’t ask) and federal paramouncy. And I believe the trial judge also found that the criminal prohibitions as applied against patients of Insite would violate s.7 of the Charter. It’s a sh*t storm of a case, rightly before the Supreme Court, Geddes faith in the eternal wisdom of Insite notwithstanding.

        • Section 7? The human right to shoot up drugs?

          The argument for the site is not logical, but the sensitivities of judges have interfered. They’re basically saying that drugs are bad, but we’re gonna give you a place to do them because you don’t know how to do drugs properly, so we’re gonna open a site where we show you how to break the law safely.

          Why don’t they open up a site where men can beat their wives? They can show men how to do it without inflicting permanent damage, and they can give treatment to the wives. Then they can publish studies that show that wives beaten under supervision have better health outcomes than wives beaten up at home. Then they can argue that wives have the human right to get beaten under safer conditions due to section 7 of the charter. And they can argue that it’s a health matter under provincial jurisdiction.

          I’m sorry, but there appears to be no serious legal issues involved here, just a bunch of activist judges who sympathize with drug addicts.

          • Why don’t they open up a site where men can beat their wives?

            What would be the government objective in doing that, exactly, other than to produce a false equivalency?

          • The whole point of that is that it’s not a false equivalency. The point is that wife-beating should not be tolerated under any circumstances because it breaks federal laws. Just because you can demonstrate some benefit to breaking the law under controlled conditions doesn’t mean that you suddenly have granted yourself an exemption from the law. The law is the law – beating your wife softly under supervised conditions is just as illegal as beating your wife at home.

            As a legal argument, it’s not a false equivalency, it’s the exact same thing, and the fact that it’s the exact same thing exhibits what an absolute farce this court case is.

          • But what if you had to beat your wife because… she planted a nuclear bomb in the city somewhere and you needed to find it before it killed millions!

            Oooh, see how I brought torture into this?

          • Now it’s getting really confusing….  how about we waterboard heroin users until they stop doing drugs?  Can we call that a health policy?

          • Well, I know you’re kidding. But, if waterboarding was scientifically proven to cure addictions, and (crucially) if addicts consented to such treatment, then, yea, sure, why not?

          • If you really think the only thing wrong with wife-beating is that it breaks the law, you’re sicker than even I thought. 

          • If you really think s_c_f thinks that’s the only thing wrong with– oh, never mind… 

          • Completely false equivalency. One directly victimizes another person against their will.. The other may, but not as direclty and more importantly not unwillingly.

          • It’s not completely false because you’ve managed to find a difference while completely ignoring the similarities.

          •  According to that definition, are a bale of hay and a scarecrow both straw men?  Falsely equivalent scenarios always have similarities, otherwise you wouldn’t bother comparing them in the first place.  However, those similarities shouldn’t blind you to the differing aspects which are crucial to the analogy you’re making.  In this case, harm to others is one of those crucial differences.  Beating people is illegal because it harms others.  Hard drugs are illegal because of a mistaken belief that prohibition laws are effective, which they demonstrably are not.  These are laws designed to protect the individual from the self, but they fail at it.  That aside, Insite (and its connected facility, Onsite) are not centers for doing drugs with impugnity.  They’re devoted to getting addicts off of drugs, as well as providing healthcare for Canadians who would otherwise find it prohibitively difficult to access.  As such, they’ve shown wide-ranging results which include improvements in the community surrounding the center.  That’s an improvement for the public good (one among many, in my opinion) that a center like Insite creates, and which your hypothetical wife-beating center would fall far short of.

          • Beating people is illegal because it harms others.  Hard drugs are
            illegal because of a mistaken belief that prohibition laws are effective

            LOL

            Injecting heroin is harmful.  That’s why it’s illegal.

            Whether you think the law is effective is beside the point. Certainly some people (I would say most) would say it’s effective, otherwise there would not be a law.  Wife-beating still exists too – even though it’s illegal.

            In fact, heroin injection is not something that is common in most societies. In some societies, it is completely absent (Muslim ones, for instance). The places where it’s most widespread are the places like liberal hotspots like downtown Vancouver where drug use has become a part of the culture, thanks to the attitude of people like you.

          • The point is that the law DOES allow for exemptions – the article clearly states this – and it also states that successive federal governments have been allowing for those exemptions for eight years with positive results.

            Now the federal government is not allowing for the exemption, and is not providing a reasonable explanation as to why not, and not able to refute the evidence supporting Insite.

            I live and work in downtown Vancouver. Regardless of whether Insite is going or not, there are drugs everywhere in the downtown Eastside. The difference is whether the drugs are accompanied by bodies everywhere as well…

            Perhaps we should start withholding medical treatment for those who smoke cigarettes or overeat or drink alcohol – these are all bad choices that people make. Why should addicts be condemned to death when we spend billions on medical treatment for other people who make bad decisions? Because it’s illegal? Doesn’t wash for me.

            It’s too expensive from both a financial and a societal point of view to continue to ignore a very real problem that spans the nation. If Insite actually works to end the cycle of drug use, it should be supported at all costs. And a decision to end it should have some justification beyond satisfying the base of our newly appointed conservative government.

          • Well put! 

          • The exemption is permissive.  It’s not mandatory.  The federal government isn’t “not allowing for the exemption” they’re just not exercising it.

            I’m also not sure you understand the issues at stake.  It’s not a criminal offense to overeat, smoke cigarettes, or drink alcohol. You’re confused.

            And whether or not Insite is a good policy or not, it doesn’t settle the issue of whose decision it is to decide whether it’s a good policy or not (i.e. an unelected Court or democratic representatives), and whether all validly enacted laws inconsistent with that good policy automatically become unconstitutional. 

          • Um, explain to me why a decision from *this* unelected court would be more democratically legitimate. 

          • Look up the role of the Supreme Court, for God’s sake. 

          • Um, explain to me why a decision from *this* unelected court would be more democratically legitimate.

            I’m not saying arguing it would be.  Just saying there’s an argument to be made that its within the federal governments prerogative to pass controversial and/or “stupid” laws. 

          • As far as I’m concerned, that’s the whole issue.  The court is meant to interpret the law.  The court is meant to take the existing laws, and the constitution, and apply them, and when you do that, the case is ridiculously simple.
            It’s not the courts job to decide whether they happen to like a particular law, they’re supposed to decide if said law is being enforced or not, and whether said law is constitutional or not, and on those counts, the answer appears to be a resounding no, the law is not being enforced, and yes, the law is contitutional (I use the word constitutional to mean in accordance with the charter… I don’t know if there’s an equivalent word “chartitutional”).

          • In addition to Olaf’s points about the difference between illegal heroin injection and legal smoke inhalation (differences of degree in health consequences and differences in legality), as well as his point that “it’s whether all validly enacted laws inconsistent with that good policy automatically become unconstitutional.”, which is the primary point here…

            Another obvious difference is that smokers and alcoholics are told to stop smoking and stop drinking, we don’t spend taxpayer’s money to give them a nice place to drink and smoke themselves silly.  We tell them to stop.  We tell them to hit the detox center if necessary, buy the patch, whatever. We don’t tell them to find some people to monitor and count how many drinks and smokes are consumed and lift the drunk off the floor after the 10th shot.  If you asked a doctor whether he would provide you with a nice place to smoke your cigarette in his clinic, he would laugh!

          • I disagree with your ‘obvious point’. Health agencies across the nation spend public money on telling those imbibing on ‘legal substances’ about the health effects.. over and over and over. This costs significantly more than the 3 million dollars that Insite uses to operate per year.  And then we proceed to spend seemingly unlimited public dollars treating ‘legal’ addictions when people attend emerg, and on inpatient floors and for cancers, etc… If this were strictly about money, then Canadians have not addressed the true drain on resources.

            As a registered nurse working in a harm reduction program, the people I
            care for who use needles do so to address the long term pain issues that
            they face (stemming from poorly healed injuries, car accidents,
            beatings, etc), as well as self medicating to deal with the
            psychological pain in their lives. These aren’t the evil criminals that
            the media, or government, or even the police would make them out to be.
            Yes, trouble does accompany them at times, as it does with others in
            society who make poor choices. However, in terms of health in Canada, I
            am equally concerned about road raging drivers, sexual assault, and underage drinking.

            The bothersome thing in my mind, is that we have a contextual (war on drugs) socially constructed law saying certain substances and routes of consumption (injecting) are BAD. This black and white decree appeals to the five year old in all of us who want clear cut rules and value judgements. Opiates provided in the hospital via IV (or a needle) are legit, but are offensive when taken via needle when not in the hospital. I think it is necessary to reflect on what it is about heroin use or injecting drugs that is so reprehensible? Is it because it is gross? Dangerous? Is it because it is often associated with mentally ill people facing a multitude of challenges such as poverty, homelessness, chronic illness? Because the media doesn’t glamorize drug use unless you are a celebrity? Excuse my humanistic sentiments, but there are wonderful, valuable people out there who benefit from the services of Insite and harm reduction programs. I would suggest those who haven’t needed such health care be thankful of it… and support those who do.

            In my mind, this is a fundamental question of  humanity. It is summed up by the photos on display at Insite with the caption,  “Before they were ‘junkies’, they were someone’s kid.”

          • You know, you might want to avoid commenting on Insite until you actually know more about it.  Insite is not there to teach drug addicts how to do drugs safely.  It DOES help them do that, but it’s actual purpose is severalfold:

            1.  Stop the spread of HIV, HEP C, etc. through shared needle use.  This alone saves the health system millions.

            2.  Provide a place where addicts feel like somebody gives a damn about them…because that feeling that somebody believes they’re worth saving is what motivates many to save themselves. Just ask the addicts who have cleaned up because of  Insite.

            3.  Prevent drug-related infections and overdoses to keep addicts alive long enough to make the choice to get well.

  6. The act outlaws possession of prohibited drugs, of course. But it
    also gives the federal cabinet the power to regulate exceptions….

    …It’s this sort of exemption that was granted, initially for three
    years, by the previous Liberal government

    …The Conservatives, however, after granting two extensions, finally decided not to renew Insite’s
    exemption, prompting the legal battle that’s now reached the top court.

    Geddes’ logic seems to be way off. If the government regulates the exemptions, and the exemption has expired, then how on earth is this place still open? How on earth does the province have a case? Geddes is right, this should not be in the courts, the site should be shut down immediately. Is this a banana republic or something?

    • The province has a case because it has a right to legislate for health care. A stack of research, mentioned by Geddes and never controverted at any point by federal lawyers today, demonstrates clear health benefits when addicts have a clean safe place to do what they would normally do in gutters with water from puddles. Shut that place down, and you trigger Section 7 of the Charter of Rights:

      “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.”

      Several times today, federal lawyers were asked what good would be served by shutting Insite down. They offered no answer, except to say the link between shutting Insite and endangering addicts’ life and personal security was too “tenuous” to trigger Section 7.

      Basically the court must decide whether the Government of Canada has the right to be nihilist, depriving citizens of demonstrated health benefits at a whim.

      • I don’t see how the act of injecting drugs has any relation to “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.”

        Someone with any interest in security of the person would not be shooting drugs in the first place. It has nothing to do with liberty or security.

        There are obvious policy choices to deal with drugs, either you enforce their prohibition or you don’t. If you don’t, then why do we have a drug controls act at all? Why do we have gun control laws? Is gun control illegal? Should we have a site where we show people how to shoot other people safely, in the shoulder rather than in the heart?

        Drug injection is a harmful act that has nothing to do with freedom or security.

        Just because is can lead to even more harmful consequences doesn’t mean it should suddenly become legal.

        Why don’t they open up a site where men can beat their wives? They can
        show men how to do it without inflicting permanent damage, and they can
        give treatment to the wives. Then they can publish studies that show
        that wives beaten under supervision have better health outcomes than
        wives beaten up at home. Then they can argue that wives have the human
        right to get beaten under safer conditions due to section 7 of the
        charter. And they can argue that it’s a health matter under provincial
        jurisdiction.

        You cannot grant yourself an exemption from a law just because you’ve figured out a way to break that law with fewer adverse consequences.

        • “Why don’t they open up a site where men can beat their wives?”

          Seriously? The only reasonable point of comparison between this example and what Insite does is that both ‘facilities’ would provide locale and implied sanction to a criminal activity. 

          Beyond that, well, shooting up is ‘victimless’ whereas the ‘beating of wives’ is most definitely not, so the lurid example kinda fails right there. Beyond that, all the information about the benefits of Insite linked to in Gedde’s article would suggest that the wife beaters’ in their unique facility would be more likely to stop doing so.

          Finally, Insite isn’t an opium den. They don’t distribute or otherwise provide whatever addicts shoot into their bodies. It’s a ‘BYODope’ place where all that’s being provided is supervision, ‘clean tools’ and, if necessary, immediate emergency care. All of which serves to make an admittedly bad choice as least harmful as possible.

          • “both ‘facilities’ would provide locale and implied sanction to a criminal activity. ”

            Exactly, so you managed to get the point.  And not only that, when it comes to the courts, and when it comes to legal activity, that’s all that matters.  In a court of law, it’s the criminal aspect of it that is the judges job to think about, and it is the constitutional aspect as well. The rest of it does not belong in a court of law.  The policy aspect is for everybody else to consider.

        • [dislike]*

          *others are arguing the case well, so if the site still had the “thumbs” feature this is where I’d click the “down” thumb and read on…

      • “Basically the court must decide whether the Government of Canada has the right to be nihilist … ”

        Addicts are the nihilists, they don’t seem to care about their own health/life all that much.

        Fed Government is trying to protect addicts and society from clearly destructive lifestyle while Prov is enabling bad behaviour which will encourage even more of it.

        •  The evidence of the benefits to the addicts and to society generally, which the government does not seem to be disputing, rund counter to your last statement. What evidence can you present to show the studies are wrong?

        •  No, the government would prefer addicts return to the gutter (or perhaps send them all to super jails).

          Addiction is a real problem in all societies. Pretending addiction can be cured through the draconian application of law is a fallacy older than this country.

      • Basically the court must decide whether the Government of Canada has the
        right to be nihilist, depriving citizens of demonstrated health
        benefits at a whim.

        It’s not quite that simple. My understanding is that most of the activities of Insite violate no criminal law provision, and thus most of the activities with ‘demonstrated health benefits’ are not in any way jeopardized by the federal law. The federalism question essentially comes down to how important is that single activity (helping addicts actually use the drugs) to the valid provincial health care objective as compared the importance of maintaining a no-exceptions rule to the government’s criminal law objective. The Charter issue is whether or not it is a principle of fundamental justice (to be determined by judges) that the government must make exceptions to otherwise valid and democratically enacted laws where those laws to some degree frustrate the actions of another level of government in attempting to achieve a different purpose altogether.

        Personally, I think these are hard questions, not easy ones.

        • Or, to put it in simpler terms:
           
          Which is more important – the CPC’s desire to punish wrongdoers and appear to be tough on crime, or demonstrably better health and lower crime rates among Vancouver’s addicts?

          Or: “gut feelings” vs. scientific evidence?

          • Great policy argument.  Now put it in legal terms, such that a Court can override the expressed will of democratic representatives who disagree with you.

          • LOL! Give me a few years to get that law degree, & I’ll get back to you.

            You’re absolutely right that, from a legal perspective, it is a complex issue. I’ve read a great deal of case law in my work and get where you are coming from. But I agree with Geddes that, were it not for the political “optics” of appearing to be tough on crime and damn the evidence, this would never have gone to court in the first place.

            In a sense, the CPC can’t lose. They get to say they are pushing their “tough on crime” agenda, and if they lose the case they get to spin it as proof that the courts are too lenient and “something must be done.”

            Call me cynical, but it looks to me like a calculated, politically motivated move, with little consideration for the evidence or the actual people being impacted.

          • Call me cynical, but it looks to me like a calculated, politically motivated move, with little consideration for the evidence or the actual people being impacted.

            Oh, I didn’t mean to suggest it was anything else – I guess I’ve just stopped looking for motivations from politicians that don’t relate in some way to their long term benefit as opposed to mine.

          •  BTW – welcome back! I’ve missed your well-argued, thoughtful comments.

          • I know you’ve been away for a while but, – not everything the government decides to do is voted on by parliament – and – gasp- not everything  parliament  decides on is enacted by the (current) government.  Try not to be bitter..

          • You’ve lost me I’m afraid. Care to explain what you meant, and how I’m bitter?

            I mean, I certainly am bitter, I’m just wondering what reason you’re referring to.

      • Several times today, federal lawyers were asked what good would be
        served by shutting Insite down. They offered no answer, except to say
        the link between shutting Insite and endangering addicts’ life and
        personal security was too “tenuous” to trigger Section 7.

        Those are some terrible lawyers. It’s obvious what would be served: the federal drug control laws. If drug control is legal, then that’s what would be served: the law. Then the law enforcement would be able to go ahead and do their jobs by confiscating those drugs rather than allowing those drugs to damage peoples’ health and lives. You can make the argument that it’s pointless because addicts are just so addicted… and then I can argue that’s what detox is for.

        • My favourite moment was when Cromwell, a Harper appointee, asked why the RCMP doesn’t arrest addicts on the sidewalk outside Insite for simple possession if everyone is so hot to trot to enforce the criminal law. The federal lawyer had no answer.

          Here are the situations that obtain inside and outside Insite: Inside, addicts have sanitary conditions and an emergency gurney 40 feet away if they overdose. This happens every once in a while. Nobody has yet died when it does. Dirty needles are disposed of safely. Counselling is available for anyone who wants to kick their habit. Most don’t take it. Some do. And nobody arrests any of these people.

          Outside, nobody arrests any of these people. Not Vic Toews’ favourite police, not anyone. Meanwhile the addicts are almost certain to shoot up in conditions that spread hepatitis, HIV, abscesses, and so on. Dirty needles lie around for weeks. And if the addicts OD, they have a pretty good shot at dying alone. 

          It’s not going to be easy to shut that place down, having twice extended its exemption, and pass a Section 7 test.

          • Section 7?  If you are right, wouldn’t that compel provincial governments to either (a) offer such a service pretty much everywhere, since a Canadian should enjoy no more rights in a crappy neighbourhood of Vancouver than in any other neighbourhood in the country, or (b) invoke the notwithstanding clause?  Bonus question for anyone who knows these things: is section 7 even notwithstanding-able?

            Darn.  Geddes told us not to get distracted by any silly little law thingy…

          • Section 7 is ‘notwithstandable’.  And whether or not it would compel the various provincial governments to put in place Insites across the land is a very difficult question.  Precedent is sketchy – the courts have before found that it is a purely negative right, and doesn’t compel governments to do anything (Gosselin).  However, they’ve read other rights and freedoms which clearly (on their face) only require the government not interfere, as requiring that the government act in order to promote those freedoms, such as freedom of association (Dunmore).  The Court kinda just finds positive obligations when it wants to, when it finds the claimant particularly sympathetic, etc.

            The finding in Gosselin – that the government had no affirmative constitutional obligation under s.7 to provide a certain minimum income level – was one thing; the claimant survived, took a case to the Supreme Court, etc.  But if you read the BCCA’s rhetoric in this case, they apparently see this issue as one of life and death – perhaps rightly, I can’t say.  Gosselin was heavily criticized at the time by left leaning law professors, and I imagine that their argument would apply with even greater force here. 

          • Your first two paragraphs are interesting points and certainly worthy of discussion as it relates to health, policy and criminal law enforcement, but as far as I can tell they don’t relate to this case in the court of law.

            Certainly the Conservatives have an argument about what is the right way to go as well…  as far as I can tell, the only reasonable treatment for a heroin addict, and the only treatment with any track record of success, is to get that person off the drug.  I’ve never heard anyone say that a heroin addict has anything that approaches a reasonable quality of life, the addicts themselves would invariably say otherwise. Regardless, the policy debate is not supposed to be decided by a panel of judges.

            I have a hard time picturing how section 7 figures into this.  We’re not talking about an act of health treatment, we’re talking about an act of harm reduction. 

            It’s like arguing we have a constitutional right to a net around every tall building just in case someone decides to jump.  The act of jumping off a building, like the act of injecting heroin, is certainly not a healthy thing to do.  Meanwhile, the act of installing nets all over the city to catch suicide jumpers is much like the act of opening drug clinics like Insite, it’s about harm reduction, it’s about reducing the damage, it’s not about security of the person, because security of the person is all about NOT leaping off a tall building.  When you start arguing that suicide nets are human rights, then you’re pretty well arguing anything is a human right, anything that has any positive aspect to it.

            Is it against the law to jump off tall buildings?  Yes, as far as I know.  Would a judge strike down such a law or grant an exemption as a violation of our charter rights?  Obviously not.

            Do I think you may be right, that they might side in favour of BC? Yes, I do, you may be right, not because there is any legal reasoning for such a decision, but simply because we do have activist judges who do have their own opinions about drug addicts and drugs, and these judges are not afraid to let their opinions take precedence over their jobs.

      • Sorry Paul, but the Government of Canada has responsibilities BEYOND addicts including those people who are harmed by addictions but are not themselves addicts!!!   You know, those people who are assaulted and homes broken into so that the addict can continue their addiction!!!

        And NO one is depraving an addict rom seeking assistance to deal with their addiction – is that not a more positive response to addictions rather than supporting the addict to continue in their behavior!!!???  by your rationale, thieves should be allowed to continue stealing, because it is to their benefit.  At the same time, overweight people are being condemned and punished because they are somehow ‘harming’ the health care system because of the ‘burden’ fat people are placing on the system. 

        • Except of course that this program is reducing street loitering, crime, the presence of dirty needles littering the streets, and increasing the number of addicts quiting the drugs.

          So in other words, helping the addicts and the public at large.

          What is confusing you about this? 

        • I would argue that basically ALL that the government does is consider the needs of everyone but the addicts. How about fewer concessions to those who already enjoy a comfortable Canadian life (which includes housing, food, freedom from being discriminated against because they have a car and nice clothes and a cell phone); and more support to those who need help just finding health care and a person willing to see them as a human being?

          As to the overweight comment…. It has to do with the fact that 60% and more of Canadians burden the health care system with preventable illness associated with their extra weight. I am sure you would agree if 60% of Canadians had skin cancer or club foot or pneumonia, then emphasis and dollars would be directed to those address those conditions as well.

    • Don’t be touchin’ ma oil ! It belongs to the provinces! Don’t be telling me how to provide health care, it belongs to the Provinces! Don’t be trying different drug-combat strategies, it belongs to the feds! Sheesh. 

  7. “Science-deniers …. ”

    “…. denying the usefulness of an evidence-based approach to governing.”

    “There’s a deep vein of anti-intellectualism …. ”

    All these insults for people who don’t think government should be opening and operating opiate dens? I would like to see this ‘evidence’ that Governments should encourage citizens to be crack addicts.

    Must be such a burden to be a liberal, always the smartest and prettiest person at the party and everyone else jealous of your awesomeness. It is too bad we can’t all be liberals but there you go.

    One thing liberals are going to need to learn is how to debate again – how to attract people to your argument – because all they can do now is name call.

    • So a bunch of references to actual evidence were made in this article, and all you can do is come up with some copy-and-paste insults.

      From your comment above, you write “Fed Government is trying to protect addicts and society from clearly destructive lifestyle while Prov is enabling bad behaviour which will
      encourage even more of it.” — which proves that you didn’t read the article you’re commenting on, and certainly didn’t follow any links, because that sentance is completely and wholy false, wrong, as in the opposite of true.

      As the evidence (start looking for yourself, http://scholar.google.ca/scholar?q=Insite+drug ) unambigiously points out, you’ve got the roles completely reversed. The result of Insite is more people in rehab, more people in detox, more people getting treatment they need. The result of the Federal governemnt’s case is exactly the opposite; they would apparently rather those people simply not get that help.

      And your argument is what, that a whole bunch of people are flocking into heroin addiction because they heard there was a safe injection site and it sounded cool? Where is your evidence that there is even *one* *person* swayed that way? Because these things actually are being studied, and the facts to date say that you are 100% wrongity-wrong-wrong-wrong.

      So yes. There is a running theme of certain groups of people actively pursuing a deeply non-evidence-based approach to governing, denying science and evidence wherever it gores their personal bull. One of these people goes by the handle TonyAdams.

      • “… and all you can do is come up with some copy-and-paste insults.”

        ” There is a running theme of certain groups of people actively pursuing a deeply non-evidence-based approach to governing, denying science and evidence ….”

        hahahahhahaha. Have you been to lower east side? It is den of iniquity, I have no idea how people can claim that Insite is ‘working’. Government is way too permissive, created Sodom and Gomorrah-type area where drug use and crime are increasing.

        Who are you who are so wise in the ways of science?

        “Research has shown that not only are many crimes committed by those who are under the influence of drugs and/or alcohol, but crime, particularly property-related crime, is often committed to obtain money to purchase drugs …… A recent national survey found that between 1994 and 2004, the proportion of Canadians who reported having used an illicit drug in their lifetime rose from 28% to 45% …. Regardless of the type of drug or the type of offence, the rates of drug crime in British Columbia have been among the highest in Canada for 30 years” StatsCan, May 2009

        •  Your StatsCan quote is notably silent on the impact of InSite. The provided evidence shows that some who availed of InSite’s services have successfully sought help for their addictions. The number of used needles floating around the city where they could injure and infect others is dramatically lessened – a net benefit to the larger community. Infection rates among addicts is lessened – again, a net health benefit to the community – if for no other reason than the savings in tax dollars due to better health of the addicts.

          I thought the clinic was a bad idea when it first opened, but the evidence has convinced me my “gut” was wrong. This action by the Feds is purely politically motivated; like with many of its positions, it has no empirical evidence to back its “gut”.

          •  And his Monty Python quote was woefully misplayed.

        • The people who live there have noticed a drop in theft crime because junkies don’t need to steal to get their fix. Those with IV-vein infections are getting treatment more thoroughly and sooner. 

          •  While I agree with the sentiment… I am not sure if your reference to ‘theft crime’ is substantiated. Opiates and other substances are not provided at Insite- but must still be brought in. People still must procure their substance in the community. Not sure how you are suggesting Insite has changed this.

        • “…Have you been to lower east side? It is den of iniquity, I have no idea how people can claim that Insite is ‘working’…”

          Oh sigh. And what was it like before the insite program? Worse or better?

          All you’ve done in your final quote, is demonstrate that drug use fuels crime.

          So one would assume you would be in favour of measures that reduce drug use, crime and improve health outcomes.

          And yet strangely you’re not.

          Odd that.

        • A couple moderately quick points.  

          For one, the lower east side was a “den of iniquity” well before Insite was even conceived of.  There are a great number of sociological factors (mental health facility closures, dislocated immigrant population, etc.) which lead to the current condition of the dtes – can you explain how government permissiveness is the true, scientific culprit?  For another, an increase in illicit drug use doesn’t necessarily correlate to an increase in injected drugs.  Last I checked, marijuana and other non-injected drugs which have no connection to Insite are still considered illicit substances.  People claim Insite is “working” because, based on all the available research (including that from similar programs being run worldwide), it is.  Even if you’re not at all concerned with the health of addicts, unbiased community leaders from the surrounding area have reported a decrease in petty burglaries, a decrease in the number of needles on the street and in the parks, and a decrease in the number of addicts in those same areas.  Those are all results that lead people to believe that keeping Insite open is in the larger public interest.

          No one is denying that people in Vancouver (or in Canada and BC, as you didn’t actually post any stats relating to a specific increase in drug use in the dtes, which might have had some bearing on your argument) use drugs.  What they are saying is that Insite seems to be helping with that problem, which has otherwise been on the rise.  If you’re saying it isn’t doing enough, perhaps that’s because it is a single facility facing not only an overwhelming extant drug problem, but also a good deal of strife from people who insist that they’re promoting drug use because those people can’t be bothered to look into what the facility actually does and the larger picture of whether or not it’s effective in that regard.

    • [dislike]

      @Jonathan Dursi: great reply.

  8.  From my skimming through some global media sites today, there are many countries watching to see what the outcome will be.  Even Russia is very interested as they have a huge heroin addiction/deaths problem.
     
    I’m torn, as on one hand you want to believe lives are saved that then go on to get help and a normal life, yet you know that many of the 6-800 a day that use Insite have gotten their illegal drugs by victimising others. 
     
    If I were them I would focus on the prevention of hepatitis, HIV, etc.   There are still lots of dirty needles lying around the DTES and lots of junkies shooting up in the alleys, but at least 6-800 a day will use clean needles.    I knew one guy who kept re-using his needle until he got a weird staph infection, nearly died, but 2-1/2 months in the hospital and a major operation saved him.  Then two months later he started using again…such a waste.
     
    As far as accolades from The Lancet, they also published the fellow who claimed autism was caused by the measles, mumps, and rubella vaccine.

    • “…yet you know that many of the 6-800 a day that use Insite have gotten their illegal drugs by victimising others…”

      I share your concern, but think about it this way: If they close Insite, wouldn’t the users still get their drugs in the same manner?

      Seems to me that this program has made nothing but improvements to the situation.

    •  Well said.  The whole Insite case presents several moral/legal conundrums which do not have easy answers.  On the one hand, I see the clear benefit of offering a safe injection site which acts a potential pathway to addictions treatment.  On the other, how far can a government go before it is seen to be abetting trade in illicit substances?  The drug trade is a huge business in British Columbia, and many innocent individuals have been victimized as a result of this criminal activity.

      Part of me has pondered the idea of making all drugs legal, yet subject to health regulation, allowing private enterprise to supplant the criminals peddling dangerous substances (and creating an additional source of tax revenue for governments).  But is that really the answer?  Do we abandon people to their poor choices, and let them destroy themselves?  The compassionate part of me says ‘no’, but another part of me feels that people have to take responsibility for themselves at some point – government can’t do it all for you.

      The other option I’ve considered is forced, long-term institutionalization for addicts in mental health facilities until they are no longer ill (which for some, may be never).  This would require a massive increase in health care funding in order to run said facilities, but if we follow the principle that government has a responsibility to those who would otherwise cause irreparable harm to themselves (and possibly others), it is the best way of getting addicts off the streets and out of a destructive cycle.

      A huge quandary if ever there was one.

      • It is a quandary, and I don’t think that the criminalization of drugs, nor the liberalization of drugs, are solutions.  But I do think one may be better than the other.  It certainly seems to me that drug problems are worse in places that are more tolerant and permissive of the activity, such as Vancouver.

        Ultimately though, it’s up to people to decide to preserve their own health, I don’t think that health policy or criminal law can ever eradicate the problem.

  9.  Don’t be too distracted, then, by the weighty legal arguments now in play.

    Say what?  They’re at the Supreme friggin’ Court!

    You may not like the federal government’s decision.  Hell, I don’t like this particular decision (although an explanation of why a junkie in that neighbourhood should enjoy greater exemption from the Criminal Code that junkies elsewhere do not enjoy would be immensely helpful…).

    But it is dangerous, dumb, crazy, and totalitarian, to ask judges to look into “[a] pure political decision, and a very weakly defended one at that,” with an express instruction to these jurists to avoid the pesky distracting law.  The politicians and the voters have authority over political decisions, good, bad or ugly.  The judges get to deal with the law.  I don’t want to live in a Canada that forgets that.  So please, Mr. Geddes, do not forget that yourself.

    • You’re missing his point. He’s not suggesting the justices ignore the law. He’s saying this should never have come before them in the first place. And your point about “that neighbourhood” is moot because this was started as an experiment. Ostensibly if the government gets out of the way, many more “Insites” will spring up in neighbourhoods across the country.

  10. Any research is conditioned by the overall research question – which determines what will (and will not) be examined. 

    Yes,
    some addicts who use Insite are prevented from overdose and some
    actually go into rehab.  But NOT ALL addicts use Insite, or use it all
    the time.  Insite may or may not have contributed to more crime in the
    area (but is certainly hasn’t contributed to LESS crime since addicts
    rarely are productively employed so their drugs are coming from
    somewhere and they are not free! or is that the next stage in the
    process?)

    It seems that the initial understanding about the establishment of Insite seems to be ignored – that the federal government temporarily waived their right, but that ‘addictions’ movement wants to control the whole ball of wax!  Why have a federal government at all when various advocacy groups clearly know best!

    •  “Why have a federal government at all when various advocacy groups clearly know best!”

      Here’s the thing, @maureen1955 . Quite often, the advocates have the science on their side, and DO know best.  In those cases, it would behoove the government to yeild the field to those who have the expertise.

      Reply

  11. I’ve never understood how criminalizing drugs ever helped anyone or anything. It seems to me you’re merely giving up and ceding control to organized crime. 

    If you want influence in any social group, making a pariah out of its members and abdicating your social responsibilities to these people, seems like a really stupid idea.

    It’s only the desire of some people to condemn others that is served by this. While it’s obviously politically expedient, I’m not sure that hate and revenge are principles we should be advocating through law.

  12. Section 56 exemptions are unconstitutional because they leave the rights of Canadians to the arbitrary whims of the Minister of Health, or so it was found when the government attempted to use Section 56 exemptions to allow for medicinal cannabis use.

  13. So, would those here who support Insite be supportive of the idea of a government funded place where alcoholics can go drink for free under the watchful eye of a medical professional? 
    Of course not.  So, why is Insite different?  I say let Darwin do his work.

    • As an Insite supporter, I would support provincially-funded supervised drinking sites if alcohol was prohibited and drinkers were dying from adulterated alcohol and spreading infectious diseases with dirty glasses.  Especially if it turned out that providing supervised drinking sites saved tax dollars as well as lives.  Mind you, I’d still be arguing that alcohol prohibition should be repealed so that private enterprise could run supervised drinking sites with live entertainment and exotic dancers.

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