Thursday, May 29, 2008

Details of the Insite Decision

The decision to grant the Insite clinic in Vancouver a reprieve is now available at the British Columbia Supreme Court website.

There is no doubt that this decision will be controversial but for anybody who has been reading the cases or, for that matter reading the headlines, it should come as no real surprise. The Supreme Court of Canada has dealt with a couple of issues over the last few years which nearly inevitably lead to this result.

First, the Court made it clear that while the state has no obligation to deliver medical services, unless it provides an effective alternate system itself, it cannot block other people from delivering those health services. That was the basic thrust of the decision striking down Quebec's laws banning private medical services.

Second, the Court has made it clear that there are two sides to the drug issue. One side is recreational or social use -- this the government is free to ban, regulate and criminalize. The other side is the medical side of drugs -- this the governments can certainly regulate, but they do not have a free hand to criminalize, as this may amount to little more than the criminalization of illness. Can you imagine a law saying "Suffering from the flu is a criminal offence punishable by five years in prison"?

Running up against these legal and rights based principles is the conservative war on drugs agenda -- that is the view that all aspects of the drug problem are fundamentally moral issues dealt with best by the system of criminal law combined with, perhaps, preventative education programs. While there is certainly a strong home grown strain of this line of thinking that runs across social and political lines (this is not just a Harper issue), one would have to be a fool not to recognize that the importance of this approach to drugs is re-inforced by the strong political feelings south of the border on this issue.

These two forces have now collided on the Downtown Eastside and the British Columbia Supreme Court has been forced to make a ruling. Interestingly the judge who heard the case, Justice I Pitfield, is not a judge anybody would place on the 'activist' side of the agenda. Indeed, if anything he would be viewed as a cautious, conservative judge who for the most part focus on the day to day job of judging -- which largely involves sorting out fact from fiction and figuring out which line of argument best makes sense given the well-established cases.

In the end Justice Pitfield was driven to find that Insite provided a valuable medical service to people who are deathly ill with a disease that caries with it the risk of death or further infection. As would anyone who has ever driven or walked through the Downtown Eastside, he recognized that the community of drug addicted people there live in desperate poverty and in what can only be described as filth and are left to cope with their disease in hopeless circumstances. He ultimately found because of all of this that the ban on clinics like Insite made no sense and amounted to a deprivation of "life, liberty and security of the person."

However the appeal courts deal with this question they have to face the sad description of matters provide by Justice Pitfield about the circumstances of drug addicts on the Downtown Eastside:

[89] Residents of the DTES who are addicted to heroin, cocaine, and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose that compromise their physical health and the health of other members of the public. I do not assign or apportion blame, but I conclude that their situation results from a complicated combination of personal, governmental and legal factors: a mixture of genetic, psychological, sociological and familial problems; the inability, despite serious and prolonged efforts, of municipal, provincial and federal governments, as well as numerous non-profit organizations, to provide meaningful and effective support and solutions; and the failure of the criminal law to prevent the trafficking of controlled substances in the DTES as evidenced by the continuing prevalence of addiction in the area.




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8 comments:

Karen Krisfalusi said...

Hi Robert,
You have said the state has no obligation to provide medical service. What powers does the gov't have to control the nature and quality of medical services provided by others? I am thinking of abortion, which in the last Morgentaler decision was ruled to be an essential service. If the state doesn't have to provide an essential service -- that is interesting. Then factor in that when you let a US NGO like the National Abortion Federation do the service in Canada, and they use pressure tactics to get consent, and ask ethnicity during the referrals, and so forth -- you wonder -- what a load of double talk is the law. don't you?

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