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Since her election to the legislature in 1996 as the NDP MLA for Vancouver–Mount Pleasant, Jenny Kwan has been a forceful advocate for low-income people who live in her constituency. As part of those efforts, Kwan recently introduced a member's bill into the legislature to have Vancouver's supervised injection site, Insite, designated as a provincial health facility retroactive to 2003.
Kwan's bill—called the Supervised Injection Facility Designation Act, 2008—advanced the argument that the province has exclusive constitutional jurisdiction over health. So if Insite were to be declared a provincial health facility, the federal government wouldn't be able to shut it down without a messy court fight.
“The jurisdiction that is responsible for health-care delivery is in fact the Province of British Columbia,” Kwan told the Georgia Straight in a June 3 phone interview. “And in the case of supervised injection facilities—because we deem it as a health-care issue, the courts have now deemed it as a health issue—it is even clearer to me that the province has exclusive jurisdiction of the delivery of this service under the Constitution Act.”
Kwan said she has discussed this issue with Attorney General Wally Oppal and Health Minister George Abbott. “Both of them did not reject the bill out of hand, and are considering it as a possibility,” she said.
Dean Wilson, a director of the Vancouver Area Network of Drug Users, praised Kwan's courage in bringing this argument forward. “I think it's a very normal route to go,” he said.
Chuck Doucette is vice president of the Drug Prevention Network of Canada, which opposes people injecting illegal drugs in a public clinic. “I fail to understand how shooting an illicit substance which could kill you could be classified as health care,” Doucette told the Straight in a phone interview. “Open the clinic. Give them all the free health care you can, by all means. But why would you also include shooting up something that could kill you? That doesn't make sense to us.”
In a May 27 decision, B.C. Supreme Court Justice Ian Pitfield ruled that two sections of Controlled Drugs and Substances Act—which the federal government could cite to shut down Insite—violates the constitutional rights of drug addicts. This means the facility can stay open pending any appeals. However, Pitfield rejected legal arguments from PHS Community Services Society, the Vancouver Area Network of Drug Users, and the B.C. Civil Liberties Association that Insite, as a health facility, had “interjurisdictional immunity” from federal laws.
UBC law professor Margot Young told the Straight in a phone interview that Ottawa usually has the upper hand legally if there is a conflict involving activities in which both levels of government have jurisdiction. However, there is another legal argument—known as interjurisdictional immunity—that can be cited under certain circumstances. Young said that she thinks Kwan's bill is an attempt to set up this argument, which was rejected by Pitfield.
Vancouver Civil City commissioner and former attorney general Geoff Plant told the Straight in a phone interview that he thinks it would be hard to displace the federal government's jurisdiction over criminal law. “I applaud any creative thinking about how to get us out of this current policy impasse that seems to be so harmful of the health needs of people who are most acutely in need of our help,” Plant said.
B.C. Liberal MLAs didn't support Kwan's bill, which didn't get past first reading when the legislative session ended on May 29. Kwan's husband is a senior official with PHS Community Services Society, which comanages Insite with Vancouver Coastal Health. Conflict of Interest Commissioner Paul Fraser and his predecessor, H. A. D. Oliver, have both stated in writing that they do not believe that this places Kwan in any conflict of interest.
“The service is actually provided through PHS to thousands of people, and anyway, many of them are my constituents,” Kwan said.
Insight into Insite
» More than 8,000 people have visited Insite to inject drugs.
» About 80 percent of the 600 daily visits are for injecting, and the remaining 20 percent for support services such as counselling.
» The injections at Insite account for less than five percent of injections in the Downtown Eastside.
» Staff successfully intervened in more than 336 overdose events since 2006, and no overdose deaths have occurred.
» Insite facilitated the immunization of injection-drug users during an outbreak of pneumococcal pneumonia in 2006.
» The annual operating cost was $3,000,000 or $14 per visit for the year ending August 2007.
» There was no evidence of increases in drug-related loitering, drug dealing, and petty crime around Insite.
Source: Final report of Health Canada's expert advisory committee on supervised injection sites research, March 31
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