Changing the law from the bench

The London Free Press
By Rory Leishman

In a two-to-one ruling on January 15, the British Columbia Court of Appeal held that Parliament has no constitutional authority to prohibit drug addicts from injecting themselves with illegal drugs in a public health clinic. With this bizarre decision, the Court has undermined the entire bans on drug possession and drug trafficking in the Controlled Drugs and Substances Act.

The immediate focus of the case is Insite, a notorious health clinic in the drug-infested, east side of downtown Vancouver, where nurses and paramedical staff help drug addicts to inject themselves with heroin, cocaine and other illegal drugs. According to the trial judge, "No substances are provided by staff. It goes without saying that the substances brought to Insite by users have been obtained from a trafficker in an illegal transaction."

The British Columbia Ministry of Health established Insite in 2003 as an experiment in the supervised injection of illegal drugs, the first of its kind in North America. To enable the clinic to operate, the minister of health in the Liberal government of Canada at the time granted Insite a temporary exemption from the federal bans on illegal drug possession and trafficking.

Former Conservative health minister Tony Clement served notice in 2007 that he planned to terminate the exemption. "Allowing and/or encouraging people to inject heroin into their veins is not harm reduction," he said. "We believe it is a form of harm addition." He insisted that instead of fostering the injection of dangerous and illegal drugs, the medicare system should save the lives of addicts by concentrating on drug treatment and rehabilitation.

Backers of Insite fundamentally disagree with this policy. Having failed in their political efforts to maintain the exemption for Insite, they appealed Clement's decision to the courts, and won.

In a ruling on May 27, 2008, Mr. Justice Ian Pitfield of the British Columbia Supreme Court overturned Clement's policy. He continued the exemption for Insite on the ground that the Controlled Drugs and Substances Act violates the right to "life, liberty and security of the person" in section 7 of the Canadian Charter of Rights and Freedoms to the extent that the bans on drug possession and drug trafficking prevent addicts from safely injecting illegal drugs in a public health clinic.

Now the British Columbia Court of Appeal has likewise upheld a continuing exemption for Insite. In reasons for the Court, Madam Justice Carol Huddart opined: "A supervised drug injection service does not undermine the federal goals of protecting health or eliminating the market that drives the more serious drug-related offences of import, production and trafficking." In a concurring opinion, Madam Justice Anne Rowles similarly argued that application of the provisions on drug possession and drug trafficking in the federal narcotics law to Insite "would have the effect of putting the larger society at risk on matters of public health with its attendant human and economic cost."

In dissent, Madam Justice Daphne Smith pointed out that if other provinces take advantage of the immunity granted to Insite in this case, "supervised injection sites could be opened in every city across Canada. The creation of 'enclaves' where illicit drugs may be brought for intravenous drug use, without the potential for prosecution, could eviscerate the efficacy of a criminal law validly enacted by Parliament that seeks to address the broader context and consequences of illicit drug use across the entire supply chain."

Note that instead of discussing the principles of the law and the Constitution, all of these judges are debating the wisdom of the policy adopted by the Harper government to uphold the comprehensive ban on the possession and trafficking of illegal drugs in the Controlled Drugs and Substances Act.

Upon further appeal, will the Supreme Court of Canada likewise maintain the exemption for Insite and amend the federal narcotics law? That remains to be seen.

Meanwhile, it’s clear that our appeal courts are still infested with arbitrary judicial activists who have no compunction about changing the law to suit their personal policy preferences.