Posted on 05/27/2008 8:30:14 PM PDT by bruinbirdman
Canada's laws prohibiting possession and trafficking of drugs were struck down as unconstitutional Tuesday by the B.C. Supreme Court, in a case focusing on the plague of drug addiction in Vancouver's Downtown Eastside.
But Justice Ian Pitfield gave Ottawa until June 30, 2009, to fix the law and bring it in line with the Constitutional principle of fundamental justice.
The ruling, in a case challenging the federal government's jurisdiction over Vancouver's controversial safe-injection site, goes well beyond the site itself.
The case was launched by the non-profit organization that runs Insite and a group of addicts, who argued the site addresses a public health crisis.
In a 60-page ruling released Tuesday, Pitfield found that sections of the federal Controlled Drugs and Substances Act are inconsistent with Section 7 of the Charter of Rights and Freedoms.
Pitfield's says in his ruling that denying access to the site ignores the illness of addiction.
"While there is nothing to be said in favour of the injection of controlled substances that leads to addiction, there is much to be said against denying addicts health care services that will ameliorate the effects of their condition," he wrote.
"I cannot agree with the Canada's submission that an addict must feed his addiction in an unsafe environment when a safe environment that may lead to rehabilitation is the alternative."
The safe-injection site opened in 2003 under an exemption from Canada's drug laws. But the latest exemption expires June 30 and the site needed Ottawa's blessing to remain open beyond that date.
While Pitfield's decision striking down two sections of the federal drug laws doesn't take effect until next year, he granted Insite an immediate exemption, allowing it to remain open.
Federal Health Minister Tony Clement issued only a brief statement on the ruling: "We are studying the decision."
A spokesman for Public Safety Minister Stockwell Day declined comment and Justice Minister Rob Nicholson was not immediately available for comment.
The lawyer for the Portland Hotel Society, which runs Insite, said the judge recognized the site provides a necessary service to people battling addiction.
"The court ... affirmed the right of people with serious addictions to access the health care they need to deal with the addictions and the coincidental health affects of those addictions," Monique Pongracic-Speier said in an interview.
Pongracic-Speier said while the decision was based on the situation in the Downtown Eastside, it has implications across the country.
"So if the Parliament of Canada decides that it's not going to amend the laws ... then those laws are off the books," she said.
"They (supporters of the safe-injection site) don't want to see open-season on trafficking, and it would be my expectation that the federal government will update the laws."
John Conroy, lawyer for the other plaintiff, the Vancouver Area Network of Drug Users, said Ottawa must now update its laws to ensure provinces are free to provide health-care services to addicts.
"The government's options are to now create a better exemption process that recognizes the provincial health jurisdiction," he said. "So when the province is carrying out a genuine health service ... there isn't a dependence on the whim of the federal minister to exempt people."
The Portland Hotel Society celebrated the ruling.
"What he's saying is, well, yes, if this service is withdrawn, people will die," said Mark Townsend, executive director.
"It's very important that you control drugs and heroin and trafficking, but it's overboard to then condemn people to die, is basically what he's saying."
Federal lawyers argued before the court that the Charter of Rights and Freedoms doesn't protect the right of drug addicts to shoot up.
They told the B.C. court that the future of Vancouver's supervised-injection site is a matter of political policy, not law.
But the site has a long list of supporters who have lobbied Ottawa for its continued operation, including health and medical experts, Vancouver's mayor and the provincial government.
"We are encouraged by the judgment," said B.C. Health Minister George Abbott.
"We are strongly supportive of Insite as part of the continuum of mental-health and addictions services in this province."
Neil Boyd, a B.C. criminologist who was hired by the federal government to study the impacts of Insite, said the ruling reinforces a changing way of looking at drug addiction.
"It does seem to make the point that over the last two decades has been made again and again: That the problems of drug use are best understood as public health problems ... and not as problems for the criminal law," said Boyd, who teaches at Simon Fraser University.
Boyd noted that there are still several levels of appeal available to the federal government, but he said the B.C. ruling does offer yet another opinion supporting Insite that will put more pressure on Ottawa.
"As a lawyer, I think I have to be cautious and say it's not the end of the story," said Boyd.
Vancouver Mayor Sam Sullivan also predicted Tuesday's judgment won't put an end to the issue.
Sullivan said he expects the federal government to appeal, setting off a protracted legal battle that could take years to resolve. And he said he's glad Insite will be allowed to stay open in the meantime.
"We need to try new approaches, we need to respect that some people are simply ill and are not able to deal with drug addiction the way we'd like them to. ... It's very important to us that Insite remain open."
Actually, federal criminal law applies to all provinces including Quebec. The provinces run their own criminal justice systems, but the Criminal Code is federal legislation.
The wrinkle in Quebec is in the rules used in court proceedings. The criminal courts are based on English Common Law (as with the rest of Canada), but civil cases are adjudicated based on the French Civil Code.
Unfortunately, this decision doesn’t strike down any drug laws. The ruling ordered Ottawa to exempt the clinic from drug prohibition, in essence creating a privileged class for whom the law of the land does not apply. IMO this just makes things worse because it is virtually impossible to repeal a law when only a few people are directly harmed by that law.
As for the creation of “safe injection” sites, I’m still undecided because not all of the facts are in. It seems to me that while they are probably harming addicts by acting as enablers, they may be helping society at large by mitigating some of the damage they are causing. When it comes to protecting the public vs. protecting an individual from self-inflicted harm, I would go with protecting the public. To me the most important open question about safe-injection sites is how effective they are at preventing the spread of disease by drug addicts.
In the same way that "separation of church and state" was envisioned in yours, IOW that "right" was invented by a judge.
Yup
Most Children's Aid societies act on reports from citizens. Reporting on parents can often be the cure that's worse than the disease, but if I encountered what you saw I'd be inclined to drop a dime.
Heroin, cocaine, marijuana and hashish have been readily available for thousands of years and it would be highly unlikely that none of the Founders, all educated people, would not have been aware of them.
The War on Drugs, like LBJ's Great Society, is based on a bastardization of the Commerce Clause. Both have been fiascoes.
Heroin is a fairly recent drug (originally it was a Bayer trademark), but opium or morphine or other opiates have indeed been around a long time. The Coca leaves have been here for probably millenia and we did have trade down in South America at the beginnings of the country, I should think. Pot... the Founders GREW hemp and knew of its intoxicating powers. Hashish, a derivative of hemp, would probably have been well known to them, as well.
Only three times? You must have been there for a total of 10 minutes.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Or semi-automatic pistols....
Your argument is farcical on its face.
And btw...opium was very well known to the Founding Fathers. Why didn't they ban it then?
Why was a Constitutional Amendment necessary to ban alcohol, but one isn't necessary to ban drugs?
L
Since pistols were known then a semi-automatic one would not shock anyone.
There were no federal laws concerning opium because it was the only drug at the time used as an anesthetic for surgery and over the counter products. There were prohibitions for smoking it as a recreational drug as early as 1869.
If the Founding Fathers miraculously came back to life and looked around there is NO WAY they`d say herion dens, crack houses, porn shops, “ hey! cool dude ! Lets get stoned and then hit the porn shops”. More likely they`d take a flame thrower to Washington being the hard core religionists,christian,deists they were.
I'm sure they'd love the drug war. Congress assuming authority to control anything they can "find" to have a "substantial effect" on "interstate commerce" is exactly what they had in mind, no doubt.
The laws against smoking opium were specifically directed at the Chinese immigrants and their opium dens. The cry was that white women were lured into these dens and then debauched by the heathen Chinese men. THAT’S the start of the war on some drugs. Something to be really proud of, huh? The opium war fought by Britain and China was fought (by Britain) to KEEP THE TRADE OPEN so Britain could keep on selling opium to the Chinese. Another little known factette from history.
Yeah, all those white Christian opium dens were ignored when the laws were passed. Those racist b*****ds !
See how proud you feel about the origins of the 'war' on opium dens, then.
Also the majority of those laws were State, not Federal. Even the Feds acknowledged they had no authority over it back then.
L
Never said I was proud.
” Even the Feds acknowledged they had no authority over it back then.”
Quotes and citations from “back then” ?
This first law, however, like so many subsequent anti-narcotics laws, failed to work despite the promptness and thoroughness of the punishment. When opium dens became illegal, "The vice was indulged in much less openly, but none the less extensively, for although the larger smoking-houses were closed, the small dens in Chinatown were well patronized, and the vice grew surely and steadily." 6 Indeed, the new law "seemed to add zest to their enjoyment." 7
A similar ordinance was passed in Virginia City, Nevada, the following year. 8 This also failed to accomplish its purpose; hence the State of Nevada passed a more stringent act a year or two later. 9 Other states and cities (Not the Feds) voted similar statutes soon after.
When these laws failed as well, Congress took a hand. Before opium can be smoked, it must be specially prepared; and weak opium containing less than the usual amount of morphine is used in its preparation. In 1883, Congress raised the tariff on opium prepared for smoking from $6 to $10 a pound; 10 and in 1887 it prohibited altogether the importation of the kind of weak opium--- that containing less than 9 percent morphine (Note they did not 'ban' the sale or possession of, they simply raised the tariff, or import tax)--- used for preparing smoking opium. The 1887 law also prohibited the importation of opium by Chinese, and a law three years later limited the manufacture of smoking opium to American citizens.(This means that only Americans were permitted to prepare opium intended to be smoked...L) 11
The results of these steps were set forth in a letter dated January 12, 1888, from the Secretary of the Treasury of the United States to the Speaker of the House of Representatives. The effect, he wrote, had been "to stimulate smuggling, extensively practiced by systematic organizations [presumably the Chinese "tongs" or mutual benefit societies on the Pacific coast. Recently completed facilities for transcontinental transportation have enabled the opium smugglers to extend their illicit traffic to our Northern border. Although all possible efforts have been made by this Department to suppress the traffic, it is found practically impossible to do so." 12
The law was not changed, however; indeed, the tariff on smoking opium was further increased, from $10 to $12 per pound in 1890. Then, in 1897, it was reduced to $6 a pound "experience having at last taught that it could not bear a higher rate without begetting an extensive surreptitious manufacture or serious smuggling operations." Following the reduction in the tariff, "the amount that passed through the customs houses . . . progressively increased." 13
Throughout this period, states and cities continued to pass laws against opium smoking;* by 1914 there were twenty-seven such laws in effect.. Yet the amount of smoking opium legally imported continued to rise steadily, as shown in Table 2. 14 (See any parallels yet?)
This information was found quite easily during a basic Google search. If you educate yourself my friend you'll see that this 'drug war' is an un-Constitutional sham designed to do nothing more than increase the size and power of the Federal government at your expense.
Best,
L
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