B.C. Court of Appeal gives Harper Conservatives the smack-down over Insite

There have been over 4,000 overdose deaths in B.C. from illicit drug use since 1990. The staggering death toll does not even begin to measure the trauma that has been imposed on individual lives, family members and loved ones of those who have died. All of them, preventable deaths.

Public policy inaction and criminalization are some of the root causes of these deaths, unfortunately. Health and human rights approaches to drug addiction are not coming on stream fast enough.

The recent B.C. Court of Appeal decision on Insite establishes some de facto groundbreaking positions that will have lasting effects for generations to come in the health versus criminalization debate.

Health responses to drug addiction fall under provincial jurisdiction. Federal laws intended to regulate and criminalize access to illicit drugs can only be applied proportionately -- and in specific circumstances, when health interventions are called for to address an urgent public health crisis, interventions such as Insite, fall under provincial jurisdiction.

These were only some of the findings in a B.C. Court of Appeal decision which upheld a B.C. Supreme Court decision to allow Insite, a supervised injection site, to stay open.

The Harper Conservatives have signalled at virtually every opportunity that they would not give Insite an exemption by the Federal Health Minister to the Controlled Drugs and Substances Act -- a move that forced PHS Community Services Society, the operator of the site, to take a pre-emptive move and take the federal government to court -- essentially arguing that the intervention was a health intervention that fell under the purview of the province.

The interjurisdictional row is not yet over. The 2-1 split decision leaves the room open for a possible appeal to the Supreme Court by the Government of Canada.

The decision could also create the legal environment that would allow provinces to take further health based approaches to drug addiction, while federal laws still apply. Even at the international level, the incongruity between criminalization and health based approaches takes place between the International Narcotics Control Board and the human rights bodies of the UN.

The Government of Canada attempted to argue that the trial judge converted a "policy dispute" into a legal one. One of the court of appeal judges wrote, "If a law is determined to be not in accordance with the principles of fundamental justice, the court is performing its legitimate judicial role and is not trenching on matters of policy when declaring the law to be unconstitutional." The PHS also argued in its submission, "...some blurring of the lines between the policy making function of the Court has been inevitable. However, when a law meets the threshold of being arbitrary, grossly disproportionate or overbroad, there is no longer any deference required to the legislative policy making choices. This is now a matter for the judiciary."

Madame Justice Rowles went on to write,"...I doubt that the accuracy of the assertion that the operation of Insite is controversial in a policy sense. In this province, there is no longer any serious debate about the need for Insite as a health care facility...All of the provincial authorities, including the Attorney General of B.C. and the Vancouver Police, agree that Insite is a necessary component in dealing with the scourge of addiction in the DTES."

In a more direct attack on the Government of Canada's arguments in appealing the case, Rowles wrote: "Moreover, it is a gross exaggeration to suggest, as Canada does, that the implications of the judgement, which applies exclusively to Insite, are akin to 'requiring an exception from the law of theft for kleptomaniacs,' or 'an exception from the impaired driving laws for alcoholics.'"

Take that Stephen Harper. Ouch.

Hopefully, the ruling Conservatives don't waste any more taxpayers' money trying to appeal this case to the Supreme Court for narrow, ideological reasons.

If anything, we need more harm reduction facilities to open across the country. Attacks from the federal government on this one, small intervention in the DTES was totally unwarranted and flew in the face of the evidence.

The Harper Conservatives attack on Insite was an ideological assault on reason.

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