Fighting for Space

  Dr Patricia Daly, in 2017 the authority’s chief medical-health officer and vice president of public health, recalls that it was a matter of resources and priorities. “I think that [joining the Insite legal challenge] would have been a little bit outside our comfort zone,” she says. “They [VCH executives] were supportive of Portland bringing it, but it wasn’t the most pressing issue at the time for VCH.”

  Hay maintains that she fought for Insite but was overruled. “It was something that people did not actually want to move forward,” she says.

  So PHS went ahead with a small team of lawyers working pro bono.

  Monique Pongracic-Speier had been the Portland Hotel Society’s go-to lawyer for some time and became the first legal mind that Townsend and Small contacted for the Insite case. She was joined by Andrew Schroeder and Joseph Arvay, as well as Scott Bernstein, who was just a student when the case began.

  Bernstein recalls that Ottawa’s lawyers wanted the sort of court proceeding that you see on television, where witnesses take the stand to field combative questions from their opponent’s lawyers. PHS, however, argued for a summary trial, where a judge bases their decision on lawyers’ arguments and information submitted to the court via sworn affidavits and exhibit evidence such as research papers.

  “The federal government wanted to drag Dean and Shelly up on the witness stand,” Bernstein says.

  He notes that Tomic was in poor health at the time, in part because of decades of drug abuse, but also as a result of her long battle with endocarditis. She was confined to a wheelchair for most of this period and often in severe pain. Despite her disabilities, she seldom missed a court date.

  “And Dean Wilson probably would have gotten frustrated and told the judge to go fuck himself,” Bernstein continues, only half-joking. “With some work, I think we would have been able to get our witnesses there. But what we would have been doing is also opening up our witnesses to cross-examination. The idea of having Shelly drilled by the federal lawyer was not appealing.”

  There would have been advantages for PHS if the case had gone to a full trial. For example, the judge would have heard Wilson’s and Tomic’s stories from them first-hand, and experienced the emotion and passion that both of their lives carried. But Bernstein says their team felt good about the job they had done compiling their case in writing.

  “With a three-foot stack of affidavits, we thought there was enough evidence in the record for the judge to get a good picture of what was going on,” Bernstein says.

  Arvay recounts how their work began. “We had to establish Insite as a health-care facility,” he says. “But it was facilitating people taking an illicit substance. How were we going to characterize that as a health-care facility?”

  They would have to go back a step. “In order to make this whole health argument, we had to first establish that addiction was an illness,” Arvay says. “You might think that shouldn’t have been too hard. But it was.”

  The judge they had drawn for the case was BC Supreme Court Justice Ian Pitfield.

  Small remembers a sinking feeling upon hearing that name. “I thought he was going to show up with a shotgun and a mule … I thought it was the good Lord working against us.”

  Arvay knew Pitfield was known as a conservative judge but a fair one, if tough. But from the onset of the trial, Pitfield was openly skeptical about the characterization of addiction as a disease, Arvay remembers. “Every time I would say, ‘Addiction is an illness,’ the judge would do air quotes around the words,” Arvay says.

  About halfway through proceedings in the BC Supreme Court, Arvay grew exasperated with the judge’s air quotes. “I think if you ask counsel for the Government of Canada whether Canada concedes that addiction is an illness, they will concede it,” he said in the courtroom.

  “At which point,” Arvay recounts, “the judge looked over to Mr Hunter, who was counsel for Canada, and he said, ‘What do you say, Mr Hunter?’”

  Hunter stood up to respond on behalf of Ottawa. “We concede that,” he said.

  “That just changed the course of the trial,” Arvay says. “The judge took away the air quotes.”

  “Now, if it is an illness, it has to be cured,” he continues. “So we still had a problem of explaining how Insite was helping not cure but treat the illness. And then we had to explain the whole thing about harm reduction and what that meant. Those were the first hurdles in the case. We had to establish that addiction was an illness, and we had to establish that Insite was providing health care.”

  Pongracic-Speier explains how they began to build the case on two foundations. The first was the human element that Wilson and Tomic represented: the actual lives that were at stake and the stories that Wilson and Tomic brought to the case as examples of the people whose health benefited from Insite. The second was the scientific evidence that had already accumulated, which indicated that Insite does, in fact, perform its stated role of reducing harms.

  To that end, the work of Evan Wood and Thomas Kerr proved crucial. When the BC Centre for Excellence in HIV/AIDS received the contract to study and evaluate Insite, the original proposal said that they would collect data and then write a report for the federal government. “They wanted us to write a big report at the end of three years,” Kerr says. “But Evan had the brilliant idea to renegotiate the contract. Evan said, ‘No, we want to write papers and get them published.’” Kerr and Wood feared that if they produced one single assessment attributed solely to the BC Centre for Excellence in HIV/AIDS, critics might dismiss it as the work of two starry-eyed researchers from Canada’s liberal west coast.

  “Anyone can diss a report,” Kerr says. “But if we got a report in the Lancet, good luck. So we did that. It was genius. And then the papers started coming fast and furious.” By the time Insite entered the courts in 2007, the pair of researchers had published more than twenty papers in a variety of reputable academic journals which, crucially, received peer review.

  A paper published in the American Journal of Infectious Diseases, for example, found that among Insite users, “rates of syringe sharing among this population are substantially lower than the rate observed previously in the community.”59 Another, published in the journal of the Society for the Study of Addiction, showed “a thirty-percent increase in detoxification service use, and this behaviour was associated with increased rates of long-term addiction treatment initiation and reduced injecting at the SIF [supervised-injection facility].”60 A third article, published in the Canadian Medical Association Journal, states there were “significant reductions in the number of IDUs [injection-drug users] injecting in public, publicly discarded syringes and injection-related litter after the opening of the medically supervised safer injecting facility.”61

  Pongracic-Speier says it all made for a strong case. “That there was so much uncontested science and that Insite had been so rigorously studied for a number of years was extremely powerful,” she says. “There wasn’t a lot of doubt about what the science was saying.”

  Beyond Insite, Arvay next began to build an argument against the laws for which they sought permanent relief.

  “Many cases turn on some kind of epiphany that happens in the course of preparation or during the trial, and the epiphany in our case was that this law was actually contributing to the very harm and evil it was designed to prevent,” he says. “This law was forcing people into the back alleys, where the evidence was that they were using puddle water to inject. So the law was instrumental in actually causing death, in causing the spread of HIV and Hep C and all that.”

  It was lunchtime on a weekday afternoon, and Pongracic-Speier was walking down the street in downtown Vancouver looking for something to eat when, completely by chance, she bumped into Arvay.

  “We won,” he said to her.

  Pongracic-Speier was confused. Normally, representatives for the court contact lawyers involved in a case and provide them with a date and time when the judge will release a decision. In an effort to
provide clarity on whether or not Insite could stay open in the immediate term, the judge had released his decision without warning. “What are you talking about?” Pongracic-Speier asked.

  “The Insite case,” Arvay replied. “We won.”

  Pongracic-Speier remembers literally jumping up and down.

  BC Supreme Court Justice Ian Pitfield’s reasons for judgment stand as an extraordinary defence of the arguments that an addiction is a disease and that the response to addictive compulsions should be treated as a health-care issue. In acknowledging those assertions as facts, the court noted they were not disputed by the Government of Canada.

  In the assessment of the efficacy of safe-injection sites generally, or Insite in particular, all of the evidence adduced by PHS, VANDU, and Canada supports some incontrovertible conclusions:

  1. Addiction is an illness. One aspect of the illness is the continuing need or craving to consume the substance to which the addiction relates.

  2. Controlled substances such as heroin and cocaine that are introduced into the bloodstream by injection do not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment, techniques, and procedures for injection permits the transmission of those infections, illnesses or diseases from one individual to another; and

  3. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.

  The judgment also addresses the extent to which drug use is a “choice,” as so many people still argue it is. “The original personal decision to inject narcotics arose from a variety of circumstances, some of which commend themselves to choice, while others do not. However unfortunate, damaging, inexplicable and personal the original choice may have been, the result is an illness called addiction,” it reads. “The subject with which these actions are concerned has moved beyond the question of choice to consume in the first instance.”

  In this situation, the judge wrote, the Controlled Drugs and Substances Act does threaten “security of the person,” which is enshrined in Section 7 of the Canadian Charter of Rights and Freedoms. “It denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated,” Pitfield wrote. “While it is popular to say that addiction is the result of choice and the pursuit of a liberty interest that should not be afforded Charter protection, an understanding of the nature and circumstances which result in addiction, as I have discussed elsewhere in these reasons, must lead to the opposite conclusion. Society cannot condone addiction, but in the face of its presence it cannot fail to manage it.”62

  Pitfield’s judgment even addresses criticisms of Insite and, after reviewing the evidence, vindicates the facility of the most common of those criticisms; for example, that an injection site enables or even promotes drug use and that it attracts drug users to the area where it is located.

  “Observations in the period before and shortly after the opening of Insite indicated a reduction in the number of people injecting in public,” it reads. “There was no evidence of increases in drug-related loitering, drug dealing or petty crime in areas around Insite; the Chinese Business Association reported reductions in crime in the Chinese business district outside the DTES and police data showed no changes in rates of crime recorded by police for the DTES; there was no evidence that Insite increased the relapse rate among injection drug users; and the cost/benefit analysis was favourable.”

  Finally, it notes that Section 56 of the Controlled Drugs and Substances Act did exist as a tool that could have been deployed to exempt Insite from the laws with which he had found problems. But because the health minister had declined to use Section 56, “it cannot be relied upon as an antidote to the violation of s. 7 rights that had been established in relation to the users of Insite.”

  The blanket application of drug laws at Insite was therefore arbitrary, Pitfield found.

  The Controlled Drugs and Substances Act, applied without differentiation for circumstances, was therefore not in accordance with the principles of justice. That meant it violated Section 7 of the Canadian Charter of Rights and Freedoms, the judge ruled. It violated an intravenous drug user’s right to safety and security of the person.

  Users and staff would be exempt from the Controlled Drugs and Substances Act, with or without Ottawa’s approval.

  That decision is dated May 27, 2008. On June 3, the Government of Canada filed an appeal.

  Wilson laughs when he remembers how fast it came. “It was a fifty-nine-page document and they responded in two hours,” he says, exaggerating only slightly. “You couldn’t read that thing in two hours. It was bizarre.”

  Liz Evans, Mark Townsend, and children Kes and Aza, standing for a family portrait in 2002.

  Photo: Lincoln Clarkes

  58Allan Woods, “Harper’s Drug Crackdown Could Cut Funds for Safe-Injection Site,” Vancouver Sun, December 5, 2005.

  59Evan Wood, Mark Tyndall, Jo-Anne Stoltz, Will Small, Elisa Lloyd-Smith, Ruth Zhang, Julio Montaner, Thomas Kerr, “Factors Associated with Syringe Sharing Among Users of a Medically Supervised Safer Injecting Facility,” American Journal of Infectious Diseases 1 (2005): 50-54.

  60Evan Wood, Mark Tyndall, Ruth Zhang, Julio Montaner, Thomas Kerr, “Rate of Detoxification Service Use and Its Impact among a Cohort of Supervised Injecting Facility Users,” Addiction 102 (6) (2007): 916-919.

  61Evan Wood, Thomas Kerr, Will Small, Kathy Li, David Marsh, Julio Montaner, Mark Tyndall, “Changes in Public Order after the Opening of a Medically Supervised Safer Injecting Facility for Illicit Injection Drug Users,” Canadian Medical Association Journal 171 (7) (2004): 731-734.

  62PHS Community Services Society v. Attorney General of Canada (2008), BCSC 661.

  Chapter 28

  Court Battle

  The battle continued, in the courts and in the streets.

  In May 2008, Leah Martin was working at Insite when Nathan Allen, another veteran PHS staffer, approached her with an idea. “Hey, do you want to drive across the country with a thousand crosses?” Allen asked her.

  “And I said, ‘Sure, sounds like fun. Can I bring Joey Only?’” Martin recounts. “And he said, ‘Hell, yeah.’ A week later, we had a U-Haul with a bunch of wooden crosses that they had used down in Oppenheimer Park.”

  Joey Only was something of an anti-hero in Vancouver’s underground country-folk scene who had played a number of PHS-organized protests over the years. He and Martin loaded up the truck they had rented and began the drive across Canada.

  Over the next week and a half, they showed up outside the offices of five Conservative members of parliament across the country and single-handedly held protests that each lasted for four or five hours. They planted the crosses, unfurled an Insite banner, and then, using a massive speaker stack they had with them, played the old Christian hymn “Amazing Grace.”

  Only recounts the stop at the prime minister’s constituency office in Calgary. “We went into [Stephen] Harper’s office and spoke to his secretary, and she was actually super nice,” he says. “I expected the doors to get locked and the cops to show up, but nothing like that happened. We stood there for four hours blasting ‘Amazing Grace’ over and over and over again, blocking out the windows with these huge banners, and generally being a bit of a nuisance. But she never locked the doors.”

  Afterward, they brought her a cake. But they weren’t so kind to their political targets. “Our next destination was that motherfucker Tony Clement’s office,” Only continues, referring to the Conservative health minister. “We were responding to a crisis,” he explains. “The Harper government had made it clear that it was going to shut Insite down. And so we were in full battle mode. We had to do anything we could to get the story out.”

  On June 5, Martin and Only arrived at their final destination, Ottawa, where they met up with Mark Townsend and Andy Bond.

  Bond was staying with his parents at their old fami
ly home in McLarens Landing, about an hour’s drive outside the nation’s capital. It was an interesting group that assembled there. Bond flew in with half the Portland maintenance team—Phong Lam and Patrick O’Rourke—and then there was Townsend, who by this time had abandoned his dreadlocks but forever remained the rebel. Bond’s parents’ house served as a staging ground for a demonstration that PHS planned to take to the prime minister’s doorstep on Parliament Hill the following day.

  Martin and Only had the truck with Insite banners in the back plus a PA speaker system and hundreds of the wooden crosses that PHS and VANDU had planted years ago in Oppenheimer Park. The plan was to create a cemetery of overdose victims in Ottawa, on the front lawn of Canada’s lawmakers.

  “Then we realized that at the Parliament building, we weren’t going to be able to spike them into the ground,” Bond remembers. “We had to build bases for all of them. So we rented a U-Haul truck, drove around Ottawa, bought a ton of lumber and whatever else we needed, and then went back out to my parents’ place and started to build these things.”

  The next challenge was transportation. Crosses are easy to move. They lie flat. Crosses with a base attached to each one are awkward and take up considerably more space. They wouldn’t fit in the two U-Haul trucks they had, so Bond raced back into the city to rent a third. Then they piled in themselves and once again made the drive to Parliament Hill.

  Almost immediately, the police pounced. Bond recounts trying to stall them while the maintenance team and a small group of volunteers (Bond’s parents among them) hurriedly unloaded the crosses from the three U-Hauls they had parked on the sidewalk.