HTTP/1.0 200 OK Content-Type: text/html Drug Laws Tested This Week In B.C. Supreme Court
Pubdate: Mon, 28 Apr 2008
Source: Vancouver Sun (CN BC)
Copyright: 2008 The Vancouver Sun
Author: Ian Mulgrew
Cited: Vancouver Area Network of Drug Users
Cited: PHS Community Services Society
Cited: Vancouver Island Compassion Society
Bookmark: (Insite)
Bookmark: (Vancouver Island Compassion Society)
Bookmark: (Supervised Injection Sites)
Bookmark: (Cannabis - Canada)
Bookmark: (Marijuana - Medicinal - Canada)


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

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.

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