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Pubdate: Mon, 28 Apr 2008 Source: Vancouver Sun (CN BC) Copyright: 2008 The Vancouver Sun Contact: http://www.canada.com/vancouver/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Ian Mulgrew Cited: Vancouver Area Network of Drug Users http://www.vandu.org Cited: PHS Community Services Society http://www.communityinsite.ca Cited: Vancouver Island Compassion Society http://www.thevics.com/ Bookmark: http://www.mapinc.org/topic/insite (Insite) Bookmark: http://www.mapinc.org/find?235 (Vancouver Island Compassion Society) Bookmark: http://www.mapinc.org/topic/Charter+of+Rights Bookmark: http://www.mapinc.org/find?142 (Supervised Injection Sites) Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) Bookmark: http://www.mapinc.org/mmjcn.htm (Marijuana - Medicinal - Canada) DRUG LAWS TESTED THIS WEEK IN B.C. SUPREME COURT Canada's drug prohibitions and the laws upholding them will be under attack in B.C. Supreme Court this week in two separate significant legal challenges. In one court, the Vancouver Area Network of Drug Users and the Portland Hotel Society are asking the senior trial bench to step in and prevent Ottawa from closing the supervised injection site. They'll argue in part that the anti-drug laws shouldn't apply to heroin and cocaine addicts while they're seeking treatment and that Ottawa is overstepping its constitutional bounds by interfering in provincial health responsibilities. In another courtroom, the Vancouver Island Compassion Society will continue its assault on the anti-cannabis criminal law with the resumption of testimony from Senator Pierre Claude Nolin, who led the 2002 parliamentary review of drug policy that concluded pot should be legalized. They're interrelated cases with national repercussions that rely on a substantially similar body of jurisprudence. "We're trying to strike down the provisions of the Controlled Drug and Substances Act by saying they don't apply at Insite," explained Joseph Arvay, representing the Portland Hotel Society, which operates the Eastside facility along with the Vancouver Coastal Health Authority. "We say we don't need a permit from Ottawa to stay open. The federal government is taking the opposite point of view, of course." In fact, the feds are trying to derail the move by Arvay and lawyer John Conroy to have the court conduct a summary two-week trial under a special rule for expediting less complicated litigation. The government, however, says the constitutional and jurisdictional issues are complex. It might even take the next two weeks to debate whether Rule 18A should apply. "If they are successful, since a full trial could be months or years away, we'll ask for an injunction to keep the clinic open until then," Arvay added. The 12-seat, experimental facility that opened in Sept. 2003 allows injection drug users to shoot up under the supervision of nurses and medical workers. But the Conservative administration in Ottawa has made no secret that it would like it shut. Insite was authorized under an initial three-year permit issued by the federal health department that exempted the facility from drug laws as part of a scientific pilot study. That permit expired Sept. 12, 2006 but the government twice extended it in the face of mounting controversy. The second extension expires June 30. Conroy said the two groups are making slightly different pitches at the court -- the Portland wants the anti-drug law declared invalid inside the clinic, VANDU wants it struck down, period. "We're saying that the means taken by Parliament in the prohibition of addictive drugs, like heroin and cocaine in particular, to achieve its objective of protecting persons from the harms potentially caused by addictive drugs, has created a new law that is so grossly disproportionate in its effects on those addicted persons, that it is contrary to the principles of fundamental justice and section seven of the Canadian Charter of Rights and Freedoms," he said. "The prohibition has the opposite effect from its intent and actually causes harm including death, the avoidance of primary health care and treatment and imposes serious levels of psychological stress that are constitutionally cognizable." He and Arvay are relying heavily on decisions made in medical marijuana cases. While acknowledging Ottawa's authority to pass a specific anti-drug law, the Supreme Court of Canada said such laws only pass constitutional scrutiny if sick people have access to their medication. "The state cannot prevent people from getting health care, be it abortion, marijuana or Insite," Arvay said. "We say this is a matter of health care, not the criminal law, and the federal government has no business sticking its nose into provincial jurisdiction." Down the hall, the other landmark drug-policy case will resume with similar arguments. It has been on hold since the death of the presiding justice, 61-year-old Robert Edwards, last November. It restarts today before Madam Justice Marvyn Koenigsberg. Ostensibly the case involves charges of producing marijuana laid against Sooke resident Mat Beren in May 2004, but the defence is he was growing it for the compassion club. The club supplies cannabis products to about 700 members on Vancouver Island who use pot as medication for a variety of ailments. They say the federal marijuana program is a failure and they are being forced to break the law to obtain their medicine. Health Canada regulations are so restrictive (potential users must get a doctor to fill out a 33-page application form) they force people into the black market, and so interfere with their charter right to security of person. Lawyer Kirk Tousaw maintains that means the government is no longer meeting the threshold set by the Supreme Court and the anti-pot law is null and void. We'll see. - --- MAP posted-by: Jay Bergstrom