The lawyer for a Vancouver care provider defending the ability of doctors to prescribe heroin to severe addicts opened an injunction hearing Tuesday insisting recently enacted federal regulations violate the users' Charter rights.
Joseph Arvay, a high-profile lawyer who has argued numerous landmark civil-liberties and constitutional-rights cases, invoked Section 7 and Section 15 of the Charter in his opening argument in B.C. Supreme Court. Section 7 refers to the right to life, liberty and security of the person and Section 15, to the right to equal protection and equal benefit of the law without discrimination.
Mr. Arvay represents Providence Health Care, which, along with researchers from the University of B.C., has led two Vancouver-based heroin studies: the North American Opiate Medication Initiative (NAOMI) and the ongoing Study to Assess Longer-term Opioid Medication Effectiveness (SALOME).
The researchers say that for the small subsection of severe heroin addicts who don't respond to conventional treatments such as methadone, receiving pharmaceutical-grade heroin in a supervised, medical setting can lead to a number of benefits. They include improved health, reduced criminal activity and an ongoing involvement with the health-care system. The research reflects heroin studies in other countries, including Denmark, Germany, the Netherlands and Britain.
Hydromorphone, a powerful but legal painkiller, also seemed to yield similar effects, the researchers noted. However, until SALOME concludes next year, its safety and effectiveness as a heroin treatment is not scientifically proven.
The doctors had applied to Health Canada's Special Access Programme (SAP) to prescribe heroin to dozens of trial participants upon their exits from the trial. The SAP subsequently approved 21 of those applications last fall. However, federal Health Minister Rona Ambrose called it an abuse of the SAP and swiftly introduced new regulations to ban doctors from prescribing "dangerous drugs like heroin, cocaine, ecstasy and LSD."
Providence and five heroin users represented by the Pivot Legal Society launched a constitutional challenge and in the meantime is seeking an injunction so participants can receive prescription heroin while the matter is before the courts.
"We say that this blanket prohibition of any access … no matter the opinion of the physicians, no matter the circumstances of the patients, is arbitrary, overbroad and grossly disproportionate," Mr. Arvay told Chief Justice Christopher Hinkson. He added that without prescription heroin, the addicts will likely relapse into illicit heroin use in Vancouver's Downtown Eastside.
The prescription heroin case "follows a well-trodden path," said Mr. Arvay, citing as an example the case of Insite, Vancouver's controversial supervised injection site, which he successfully helped defend. In 2011, the Supreme Court of Canada ordered the federal government to stop interfering with the clinic.
Mr. Arvay also referenced the Supreme Court of Canada's recent decision to strike down major prostitution laws, reading from it, in part: "The question under Section 7 is whether anyone's life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad or arbitrary effect on one person is sufficient to establish a breach of Section 7."
"There can't be any question that this [heroin] law, this blanket prohibition, impacts one person," Mr. Arvay said. "And that's enough to strike it down."
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