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Canada: Judge Orders Safe Injection Site Open in Vancouver

(July 2, 2008) In 2003, the Canadian federal government granted the Vancouver Coastal Health and PHS Community Services Society temporary permission to operate a supervised narcotic injection site in the city of Vancouver. (Press Release, Health Canada, Health Canada Approves Vancouver Supervised Injection Site Pilot Research Project (June 24, 2003).) The center was named Insite and has been advertised as the first of its type in North America. (Vancouver Coastal Health, Insite-Supervised Injection Site, (last visited June 20, 2008).)

The federal government initially authorized Insite to operate for a period of three years and later extended its exemption first for an additional year and then to the end of June 2008. Authority to grant exemptions to Canada's narcotics laws is found in section 56 of the Controlled Drugs and Substances Act. This section states as follows:

The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.

(Controlled Drugs and Substances Act, 1996 S.C. c. 19, as amended (official source); unofficial version available at HOME&caller=SI&search_type=all&shorttitle=controlled%20drugs%20and%20 substances%20act&day=20&month=6&year=2008&search_domain=cs&showall=L& statuteyear=all&lengthannual=50&length=50&noCookie (last visited June 20, 2008).)

With its approval to operate Insite about to expire, PHS Community Services Society applied to the Supreme Court of British Columbia for an order that would give it authority to operate without having to continue seeking temporary exemptions. On May 27, 2008, a judge of the Court allowed this application by finding that the absolute prohibitions on the possession of controlled substances violated the right to life and security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).) The judge's primary objection to the extant law is that it treated addicts and non-addicts equally and was inconsistent with the state's interest in fostering individual and community health and in preventing death and disease. Based on these findings, the judge declared that Insite could continue operating legally without obtaining another extension of its exemption, and he gave the government until June 30, 2009, to amend the impugned sections of the Controlled Drugs and Substances Act to bring them into line with the requirements of the Charter of Rights and Freedoms. The government can appeal the decision in PHS Community Services Society v. Canada (Attorney General) (2008 B.C.J. No. 951) to the Court of Appeal for British Columbia and leave to appeal from a decision by that court could be filed with the Supreme Court of Canada.