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Globe editorial

Courageous court, obtuse government Add to ...

It was an act of judicial courage, not arrogance, for the British Columbia Court of Appeal to set limits Friday on how the Canadian government can fight against illegal drug use. Canada went too far in holding the threat of criminal prosecution over those who work at or use Insite, the clinic in Vancouver's Downtown Eastside. It tried to fight a so-called drug war on the backs of the most addicted population in Canada. In doing so, it put their lives at risk. Governments should not be able to bully and threaten the lives of the most vulnerable people.

Judges have a moral duty, under the Canadian Constitution, to stand up to such bullying. One of the men in whose name the constitutional challenge was brought has been a heroin addict for 38 years. On average, the users have been injecting drugs for 15 years. They aren't doing it for recreation. They're ill. Even Ottawa acknowledges that much. The argument that permitting them to do it under medical supervision might encourage drug use is preposterous; Canada's best-known medical clinic for addicts is a veritable marketing campaign for the horrors of drug use.

Eighty per cent of Insite users have been incarcerated. Eighty-seven per cent have been infected with Hepatitis C, and 17 per cent have HIV. Nearly 60 per cent have had an overdose. Thirty-eight per cent sell their bodies. Yet Ottawa would criminalize the health-care service that could save and has saved lives. Of course it's a matter that bears on constitutional rights.

Ottawa's arguments were obtuse in the extreme. Exempting these addicts from the criminal law, it said in its written brief to the appeal court, is like "requiring an exception from the law of theft for kleptomaniacs," or "an exception from the impaired driving laws for alcoholics." Huh? The addicts are finding a safe place, under medical supervision, to inject drugs. The Vancouver police refer addicts to it. Do the police ask kleptomaniacs to steal something? Do they give alcoholics their car keys? The B.C. Attorney General supports Insite. This is about an actual health facility, not an ivory-tower exercise in abstract argument.

There is a parallel with medical marijuana. Courts have ruled that it would be unreasonable and unfair to lay criminal charges against those who use the illegal drug to alleviate the pain of cancer. It would be wrong under the Constitution to criminalize very ill people who make the choice to seek this relief from pain.

The war on drugs came to Canada, and it picked on a bunch of desperately ill addicts. Some war. Boldly, B.C.'s highest court, and before that a trial judge, have let Ottawa know that any war on drugs fought in this country should not endanger the right of addicts to get life-saving health care.

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