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David Gratzer

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Who Really Lost At The Supreme Court

Posted: 10/01/11 10:00 AM ET

Despite the federal government's efforts, Friday's decision by the Supreme Court of Canada means that Insite will remain open.

Here's the background: Insite opened in 2003, offering addicts clean needles, supervision of their drug use (but not actual drugs), and counseling. Located in Vancouver, it's the only centre of its kind in North America.

The idea of a Supervised Injection Facility (to use the technical term) has won support from successive municipal and provincial governments. The catch, of course, is that it requires an exemption from the Controlled Drugs and Substances Act so that drug use that would be illegal outside the clinic would not breach the law within its walls -- thus the need to involve the federal government.

The federal Liberals first granted a three-year exemption, and, after winning the 2006 election, so did the Tories. But, in a change of heart, the Tories suggested that a third exemption would not be approved.

Lower courts ruled against the government twice. The Harper government appealed, leading to the Supreme Court showdown.

The government has drawn opposition for its sharp position from a broad coalition of activists, doctors (represented by the Canadian Medical Association), and researchers.

On Friday, the government lost and lost big.

As Chief Justice Beverley McLachlin wrote on behalf of all the Justices: "The potential denial of health services and the correlative increase risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite's premises."

It's the sort of ruling that is met with great enthusiasm -- people organizing themselves, armed with passion and medical evidence, against politicians who seem to have put politics ahead of policy.

The Harper government did itself no favours with its case, weakened by its own internal contradictions (that not making an exemption wasn't really a decision, etc.).

But political debates settled in the courts often produce an uncomfortable reality. In this case, it is this: the Supreme Court finds, yet again, that Section 7 of the Charter can be applied broadly. Let's put this in blunt terms: that the "right to life, liberty and security of the person" means that an addict has the right to shoot up heroin with a "free" needle as he is watched by a clinic worker, all at taxpayers' expense. We have grown so used to such cases -- with the courts used by the right and the left -- that we've forgotten the alternative: people speaking out, swinging public opinion, and changing government policy without the lawyers.

But the larger issue remains: does Insite really help addicts?

Proponents truck out papers published in some of the most prestigious journals like The Lancet and The New England Journal of Medicine that paint a picture of success -- a decrease in overdoses and an uptick in addicts seeking rehab.

It's easy to get seduced by the argument. And, as a physician, I'd like to be more optimistic. But the reality is this: early data usually supports new initiatives. Addiction medicine unfortunately is ripe with glorious papers for ideas that prove less interesting with the test of time.

Insite seems great. Give addicts free needles, and they will stop sharing -- and thus spreading HIV. Watch them carefully, and they will stop overdosing. Offer them a supportive environment, and they can be persuaded to try rehab. And, again, medical literature backs these claims, albeit with limited data over short periods of time, often written by researchers who support Insite.

But walk around the inner-city of Vancouver, and the painful reality is clear. The parks are still strewn with needles; addicts are still lying on the sidewalks in drug-induced hazes; death is everywhere. I'm hoping to be proven wrong, but I suspect that in a decade, despite Insite's zealous staff working away, the problems will remain.

Insite is built on the idea of harm reduction. Addicts are going to use anyway, the theory goes, so we might as well make drug use safer for them.

For decades now, we have experimented -- with needle exchanges and supervision, with methadone and rapid detox, with free condoms. At the end of the day, the journal papers are great but the addiction trend is discouraging.

For the drug addicts of inner-city Vancouver -- disproportionately poor, disproportionately Aboriginal -- the issues must surely run deeper than the cost of a needle (pennies a day, to facilitate an addiction that costs hundreds of dollars a day) or the need for advice (addicts know everything and anything about drugs, after all).

On Friday, the Harper government lost at the Supreme Court. Insite remains open for business. But did anyone really win at the Supreme Court? The failings of our policies for the poor and for Aboriginals continue on, and thus, we are all losers for it.