Pubdate: Mon, 29 Sep 2008
Source: Victoria Times-Colonist (CN BC)
Copyright: 2008 Times Colonist
Contact: http://www.canada.com/victoriatimescolonist/letters.html
Website: http://www.canada.com/victoriatimescolonist/
Details: http://www.mapinc.org/media/481
Author: Louise Dickson, Times Colonist
Cited: Portland Hotel Society http://www.communityinsite.ca
Bookmark: http://www.mapinc.org/topic/Charter+of+Rights
Bookmark: http://www.mapinc.org/topic/Insite (InSite)
Bookmark: http://www.mapinc.org/people/Ian+Pitfield
Bookmark: http://www.mapinc.org/find?142 (Supervised Injection Sites)
Bookmark: http://www.mapinc.org/people/Tony+Clement

ADDICT'S ARREST VIOLATED CHARTER, LAWYER ARGUES

Insite Ruling on Right to Health Care Cited

A Victoria defence lawyer is arguing that the charter rights of a 
homeless heroin addict were violated when he was arrested with a 
needle in his hand in a secluded parking lot off Herald Street in June 2006.

Wayne Charters was poised to inject 0.3 millilitres of morphine into 
his arm when he was arrested by Victoria police. Charters, now 44, 
was charged with possession of a controlled substance. He is pleading 
not guilty to the offence.

Lawyer Katherine Tyhurst is arguing that Charters's right to life and 
security under the Charter of Rights and Freedoms is being threatened 
because the Controlled Drug and Substances Act does not recognize his 
drug addiction as a health issue.

Tyhurst also maintains Charters's rights were violated because he 
does not have access to a supervised injection site like Vancouver's Insite.

"How can someone's conduct be criminal in Victoria, but not in 
Vancouver where drug addicts have access to Insite?" she asked.

Charters was injecting $7 worth of morphine, the amount required to 
stop addiction sickness, Tyhurst said. He was not injecting the drug 
to get high, she added. Police didn't find any other drugs when they 
searched him that night.

"Addiction is an illness," Tyhurst said. "Addicts have a continuing 
need to consume that substance."

The trial, which began in Victoria provincial court last week, was 
adjourned until March 16. Prior to the adjournment, Charters, who has 
since turned his life around, testified that if Victoria had a safe 
injection site, he wouldn't have been in the parking lot.

Crown prosecutor Peter Eccles said he hasn't decided what position he 
will take on the matter.

Tyhurst's defence is based on a recent B.C. Supreme Court ruling by 
Justice Ian Pitfield that Insite can stay open indefinitely because 
it provides a form of health care to which drug users have a right.

In his May 28 judgment, Pitfield called drug addiction an illness and 
said Canada's possession and trafficking laws, from which the 
injection site has to get an exemption to operate, are too broad and 
arbitrary to deal with people who are addicted.

The law on possession "contributes to the very harm it seeks to 
prevent. It is inconsistent with the state's interest in fostering 
individual and community health, and preventing death and disease," 
Pitfield wrote.

Addicts should not be denied a form of health-care treatment, 
Pitfield said. He pointed out that people who drink alcohol or smoke 
tobacco aren't denied treatment.

"Simply stated, I cannot agree with ... Canada's submission that an 
addict must feed his addiction in an unsafe environment when a safe 
environment that may lead to rehabilitation is the alternative," he wrote.

Federal Health Minister Tony Clement immediately appealed the 
decision. However, the B.C. government is fighting to keep Insite 
legal and will take on the federal government when the case goes to 
appeal in April. The province plans to file a formal argument in 
October, when the federal government and the Portland Hotel Society, 
which runs Insite, file their arguments.

"The attorney general will appear to speak to the exclusive 
provincial jurisdiction over the delivery of community health 
services and the importance of permitting provinces to experiment and 
innovate in response to local health concerns," a spokesman for the 
B.C. Health Ministry said in an e-mail.

On Thursday, Victoria Mayor Alan Lowe said the city is still 
interested in establishing a pilot project with multiple safe 
injection sites in conjunction with other social service agencies in 
the city, but "the door appears to be shut" by the federal 
government's position.

Although some police forces don't normally charge people for simple 
possession of heroin, Sgt. Grant Hamilton said Victoria police 
enforce all sections of the Criminal Code, including those involving 
addicts in possession of drugs.

"Until there are amendments to the Criminal Code that will not 
change," Hamilton said. 
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