Lawyers make the case for Insite before Supremes

Can a safe injection site continue to operate without a federal exemption from Canada’s drug laws? The Supreme Court of Canada heard arguments May 12 about Insite, a Vancouver supervised injection site.

Robert Frater, arguing on behalf of the attorney general, told the court that no decision has been reached on whether to extend the clinic’s exemption from the federal drug law.

In 2003, the Vancouver Coastal Health authority was given an exemption from Canada’s drug trafficking and possession laws under Section 56 of the Controlled Drugs and Substances Act (CDSA).

The exemption allowed Insite to work with illegal drugs in order to conduct a study. The study was successful and the clinic applied for an extension to the exemption. In 2008, when then-minister of health Tony Clement failed to renew the exemption, Insite sought an injunction from the courts.

The courts declared that Sections 4(1) and 5(1) of the CDSA, which prohibit possession and trafficking of banned substances, violated Section 7 of the Canadian Charter of Rights and Freedoms and were constitutionally invalid when applied to users and staff at Insite.

Frater argued that the lower courts erred in the decision and that federal law should have overruled provincial law. He stated that drugs fall under federal jurisdiction and that any provincial service dealing with illicit drugs is breaking the law and therefore is not a provincial matter.

Frater spoke of wider consequences if provincial laws, in this case, trumped federal law.

But that’s not the case when it comes to health matters, the respondents argued. An individual’s right to choose healthcare treatment falls under the provincial law, said Monique Pongracic-Speier, a civil litigator with Ethos.

Pongracic-Speier said that for drug users at Insite, the possession of drugs was a given; the question was about where the injections were going to occur and under what circumstances — and Insite is the safest answer. She emphasized that the clinic has a broader mandate: it caters to addicted and casual drug users, offering clean equipment, supervised and safe injections that eliminate the chance of overdose as well as working to free people from drug addiction.

Joe Arvay, a lawyer for PHS Community Services, which runs Insite, argued that any time a law creates a barrier between a sick person and healthcare it jeopardizes public safety, and therefore, the provincial government can and should step in. He reiterated that government interference would lead to a disproportional amount of damage, stating that without Insite the risks of death from overdose and blood-borne diseases would increase exponentially.

The other respondents included John Conroy for the Vancouver-area Network of Drug Users and Craig Jones for the attorney general of British Columbia.

Conroy spoke of the fear drug users have of being prosecuted while shooting up. He stated that having supervised injections at Insite eliminates that fear and reduces the risk of overdose and unsafe injection practices. Jones spoke for the provincial government, saying that he was acting in the interests of public service and that federal interference potentially impairs the power of the provincial government.

There were 10 intervenors who spoke on behalf of the respondents, including HIV/AIDS organizations, civil liberties associations and nursing associations.

Andrew Nathanson, for the Dr Peter AIDS Foundation, said that safe and supervised injections are a public health concern. He emphasized that HIV-positive drug users are already marginalized and that supervised injections fall under primary healthcare.

Lawyers for the British Columbia Civil Liberties Association and the Canadian Civil Liberties Association agreed that there was “no realistic” choice for drug users other than to break the law and that the harm-reduction principles of Insite include abstinence goals.

Rahool Agarwal, speaking to the court on behalf of the Canadian Nurses Association, said that nurses, an essential part of the clinic, are exposed to the threat of prosecution.

Agarwal argued that nurse-supervised injections helps prevent overdosing and the spread of diseases, but the threat of prosecution has deterred nurses from seeking employment at Insite.