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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