B.C. Court of Appeal to hear Insite case next year

Ottawa's fight to shut down Vancouver's controversial supervised injection site will be heard by the B.C. Court of Appeal next April.

The federal government is appealing a B.C. Supreme Court decision that struck down sections of Canada's drug laws as unconstitutional because they prevent the facility, known as Insite, from operating.

The judge gave Ottawa until June 30 of next year to bring the Controlled Drugs and Substances Act in line with the Charter of Rights and Freedoms, and gave Insite a constitutional exemption to stay open in the meantime.

Madam Justice Anne Rowles of the appeal court announced yesterday that three days will be set aside for the appeal beginning April 27.

But a lawyer for the federal government noted that could mean a decision might not be issued before the lower court's ruling takes effect.

"The Attorney-General asks that the appeal be heard as soon as there is available time to hear it," said Paul Riley, who had hoped for a hearing as early as December.

"The implications are significant - what we're talking about is an order declaring an important law of no force and effect."

But Judge Rowles said other lawyers' schedules meant the case couldn't be heard until the spring.

A lawyer for the Portland Hotel Society, which runs Insite and helped launch the initial court challenge, said that if Ottawa was concerned about the deadline, it should be working to update the law, not speed up the appeal process.

"The government should be doing their work as we speak," Joseph Arvay said.

Insite opened in Vancouver's Downtown Eastside in 2003 under an exemption from federal drug laws, but Ottawa now wants the facility shut down. Insight allows addicts to inject their own narcotics under the supervision of medical staff.

Mr. Justice Ian Pitfield of B.C.'s Supreme Court ruled in May that denying drug addicts access to the health-care services offered at Insite violates their Charter rights to life, liberty and security of the person.

It's not clear what will happen if the Conservative government hasn't passed updated legislation by Judge Pitfield's deadline of June 30 and if the appeal isn't successful.

Lawyers at yesterday's court hearing suggested either side might apply to have the deadline extended, though Judge Rowles said that's an issue to be decided later.

A spokeswoman for Health Minister Tony Clement said the minister had no comment about the appeal and said the timing is at the discretion of the court.

Officials with the federal Attorney-General's office and the Justice Department were unavailable.

The case involves a complex mix of appeals and cross-appeals involving the federal government, the two local groups that launched the initial court challenge and at least three intervenors.

The B.C. government is already an intervenor, and the B.C. Civil Liberties Association and the Vancouver Coastal Health Authority are expected to apply to intervene in support of Insite.

"The civil liberties association, like the plaintiffs themselves, is responding to what in essence is a health-care crisis in the Downtown Eastside," the association's lawyer, Ryan Dalziel, said in an interview. "The service is saving lives."

The health authority, which works with the non-profit Portland Hotel Society to operate Insite, plans to keep the facility open indefinitely unless a court rules otherwise, said spokeswoman Anna Marie D'Angelo.
source: The Globe and Mail, http://www.theglobeandmail.com