Safe Injection Sites: Supreme Court Set For Landmark Ruling

OTTAWA - The Tories tough-on-crime agenda faces tough scrutiny from the Supreme Court of Canada when it rules Friday on the government's attempts to close Vancouver's supervised injection site for drug addicts.

The top court will issue what will be a landmark judgment on whether Ottawa's decision to close Insite, a health-care facility under British Columbia provincial jurisdiction, violates the rights of drug addicts living in one of Canada's most desolate neighbourhoods.

Supporters, including the B.C. government, point to peer-reviewed studies that conclude Insite prevents overdose deaths, reduces the spread of HIV and hepatitis, and curbs crime and open drug use.

The federal government has rejected that evidence, arguing the facility fosters addiction and runs counter to its tough-on-crime agenda.

The decision will have legal and political ramifications that will resonate well beyond the borders of Vancouver's squalid Downtown Eastside.

Two legal issues are to be decided: whether closing the facility would violate the Charter guarantee "to life, liberty and security of the person" for its users, and whether the federal government's jurisdiction over criminal justice can triumph over provincial jurisdiction in health care.

Since opening in 2003, Insite has been granted a federal exemption that allows what would otherwise be illegal drug use within its walls. As the first supervised injection site in North America, addicts can use one of 12 booths to inject drugs under the supervision of a nurse.

In 2008, two years after the Conservatives won power, then-health minister Tony Clement declared: "In this case, we have given it due process, we've looked at all the evidence, and our position is that the exemption should not be continued."

Friday's ruling arrives as the Conservative majority government faces no substantive political resistance to its massive crime bill — a bundle of nine law-and-order bills that died in past minority Parliaments.

If the Supreme Court sides with Insite, it will represent a significant setback for the Conservative crime agenda and could lead to the creation of other safe injection sites in major cities across Canada.

Supreme Court justices grilled two Justice Department lawyers who argued the government's case when the appeal was heard at a hearing in May.

Federal lawyer Robert Frater told the hearing that notwithstanding Clement's earlier comments, "the decision to grant or not to grant the exemption has not been made" by the Harper government.

Justice Rosalie Abella pounced on that statement.

"A failure to actually make a decision, in response to a request, is still a decision," Abella told the lawyer. "There is a failure to extend. That's on the table. There's no dispute about the fact that there has been a failure to extend because there's no extension."

Frater argued that the federal government's right to arrest drug users can't be trumped by the provinces.

Justice Marshall Rothstein probed what guides a health minister in his exercise of discretion.

Frater said that the law allows for "medical, scientific or other public interest exemptions," but ultimately it is the Charter of Rights and Freedoms that binds the minister.

"So it's up to him in his absolute discretion to decide whether it's medical, scientific or not?" Rothstein said.

Chief Justice Beverley McLachlin challenged federal lawyer Paul Riley over the peer-reviewed studies that showed Insite has made a difference.

"Lives are being saved, diseases are being prevented by this site, and aren't we putting too fine a point on it to say, well, the site has nothing to do with it?"

Riley said the law doesn't make the state responsible for the dubious choice some people make to inject harmful substances.

"It may make the state responsible for certain actions, which will expose addicts to death, to other illness, and it brings up back to the question that was raised … what good will the closing of this site do?" Justice Louis LeBel interjected.

Abella questioned whether the government was exercising a "kind of arbitrariness" in not extending Insite's exemption, after this exchange with Riley:

Abella: "There have been reductions in harm, improvements in health safety … the government exercised that flexibility for five years?"

Riley: "Right."

Abella: "And then didn't."

Riley: "Right, and to be clear the government exercised that flexibility to permit a scientific study."

Justice Thomas Cromwell questioned whether arresting clients of Insite served any "rational purpose" from a law enforcement perspective.

"If the police wanted to arrest people for possession, they could simply do it outside on their way to the door, is that a fair comment?"

Riley said it wasn't.

"If you were seriously interested in preventing possession of those substances, all you have do, is stand outside the door," Cromwell retorted.

So far Insite has received 1.5 million visits. More than 12,000 people have registered to use it, with the average user visiting 11 times a month. There have been 2,400 overdoses at Insite, but no deaths.

It is funded entirely by the B.C. government with a budget of about $2.9 million a year.