Court decision could lead to safe-injection sites nationwide, judge says

OTTAWA – The legal battle over Vancouver’s controversial safe-injection site could lead to similar sites popping up around the country, a Supreme Court justice told a hearing into the future of the Insite facility.

Legal arguments over the supervised injection site ended Thursday with Justice Marshall Rothstein suggesting the case could set a precedent for the country, and a federal lawyer saying the Conservative government hasn’t decided whether it wants to close the facility.

Insite provides a spot for addicts to inject drugs using sterile needles under a nurse’s supervision.

Insite’s future is in the hands of the Supreme Court after the government appealed two lower court rulings against it that said Insite fell under provincial jurisdiction.

Lawyers for the federal government argued that it, not the B.C. government, has the right to decide whether to allow the eight-year-old Insite to continue to operate in Vancouver’s notorious Downtown Eastside, saying that the federal Criminal Code trumps provincial health care responsibilities.

"The only question is, what are the consequences to the addict?" said Justice Ian Binnie.

"The focus here is a particular facility that . . . by reason of being shut down forces people onto the street."

However, federal lawyer Robert Frater said the government has not decided to shut down Insite. He said that public comments that former health minister Tony Clement made about Insite were misinterpreted to mean that he had decided already to shut it down.

Insite has a Health Canada exemption that permits the facility to operate in contravention of criminal drug laws. In 2008, the government did not renew the exemption.

Frater said Clement held off making a decision because there were proceedings before the court and no decision has been made to date.

"It was never dealt with," Frater said. "If and when it has to be dealt with, (the minister) will give it due process."

Rothstein suggested that if the court rules in favour of the site’s continuing existence, similar sites could sprout in other cities.

"If you’re successful here, there could be Insites all over the country," Rothstein told an Insite lawyer during the morning session.

The Controlled Drug and Substances Act allows the federal government to grant exemptions like the one for Insite for a "medical or scientific purpose or (that) is otherwise in the public interest."

The Liberal government of Jean Chretien approved the original exemption for Insite in 2003. In 2008, when refusing to renew the exemption, Clement told a House of Commons committee that safe injection sites "divert valuable dollars away from treatment."

"That’s our money. That’s our spending decision," Craig Jones, a lawyer representing the B.C. government, told Thursday’s hearing. "That’s the core of the provincial interest."

Research has shown Insite reduces the number of drug-related deaths in the area. Research has also found that safe injection sites in general contain the spread of HIV/AIDS, reduce public disorder in the surrounding areas and help addicts enter detox and other treatment programs.

Lawyers supporting Insite’s continued existence repeatedly talked about the stats, but the federal government has asked the court to ignore that research in deciding who has jurisdiction over Insite.

"Have you got anything . . . that tends to demonstrate that this program doesn’t work?" asked Justice Louis LeBel.

The only response from government lawyer Paul Riley: "I think that’s a fair observation."

The case attracted a long lineup of people to the Supreme Court building. Some, like Insite nurse Tim Gauthier, made the trip from Vancouver to watch the proceedings in person.

"I think they’re going to rule in favour of Insite," Gauthier said. "They’ve repeatedly said they recognize Insite is effective."