One officer barked: “You’ve got to move these trucks!”
Bond pretended he’d lost the keys, failing to actually convince anyone but somehow buying enough time for the rest of the group to empty the trucks. Then he miraculously found the missing keys and removed the vehicles from the sidewalk.
Hundreds of crosses were set in lines down a wide stone path that serves as the public entrance to Parliament. One of the Portland’s unofficial documentarians, Murray Bush, had printed six-foot (two-metre) tall photographs of Insite users, but used photos taken when they were all just babies. “Before they were ‘junkies’ they were kids,” read a line of text below each picture. A massive banner stretching sixty feet (twenty metres) across read “Stephen Harper, obey the law: Protect Insite’s constitutional right to save lives!” Then Townsend hit the play button on “Amazing Grace.”
Next, Townsend, Bond, and the maintenance team broke from the larger group of volunteers they’d recruited and blocked the main entrance to the prime minister’s building, stretching another large Insite banner across it.
“Then my mom runs over and she says, ‘Mark says to get the lawyer!’” Bond continues. He counted officers from no less than four different police agencies forming a ring around Townsend.
“Somehow, nobody ended up getting arrested,” Bond says. “There was a boldness about us, for sure.”
Meanwhile, in the courts, the Insite case grew in size and complexity. It moved from the BC Supreme Court in 2007 to the BC Court of Appeal and then to the Supreme Court of Canada. No less than fourteen organizations were given intervener status. Appeals were filed, and then cross appeals were filed. It dragged on for years until, on September 30, 2011, Insite was scheduled to receive its verdict.
Late at night on September 29, Liz Evans was lying awake in bed with Mark Townsend next to her. “The night before the Insite decision, it was so terrifying,” Evans says. Her mind drifted to the afternoon they first met, in the English countryside in 1986. “If that one moment hadn’t happened,” Evans thought, “if we hadn’t bumped into each other … It was just so random that both of us were there.”
The court’s decision was scheduled to come at 9:45 a.m. eastern time, which is 6:45 a.m. in Vancouver. After a couple of hours in bed without falling asleep, Evans and Townsend got dressed and then woke the kids. Their son Kes was eleven by this time and their girl, Aza, was nine. It was impossible to find a babysitter. Everybody they knew planned on being with them at Insite for the announcement of the court’s decision. And so the kids would come with them.
Townsend says they were ready to go to jail, and had even prepared their children for that possibility. “Liz and I had talked to our kids about what was going to happen if we lost and the risks that we would have to take,” Townsend says. “The health authority could say that we had to comply with the law, but that would be crossing a line,” he continues. “We could not shut it down and let people die.”
Vancouver Coastal Health had told the Portland Hotel Society that if the Supreme Court ruled against them, Insite would close. It had even gone so far as to threaten to change the locks on Insite. If PHS lost the case, the bureaucrats suspected that Evans and Townsend would ignore the court’s decision. In fact, Townsend had already put in motion a plan to do exactly that. At the Regal Hotel, a PHS building three blocks west of Insite, he had set up a series of tables and chairs on the ground floor and stocked a supply of clean needles and other basic equipment for injection-drug use. There was a list of local celebrities, including two former mayors, who had agreed to staff the illegal facility to act as a political shield from law enforcement.
But they had no idea to what extent that strategy would work. Dan Small had spoken with the chief of the Vancouver police, Jamie Graham, and the conversation had not gone well.
“Look, Dan,” Graham said to him, “life is simple for a policeman. It is illegal or it is not. If it is illegal, we will shut it down.”
Small emphasizes what that actually meant: “It would be the end of the Portland if we lost. Because we would never give up.”
Ann Livingston’s unsanctioned injection sites had operated in a legal grey area. Everyone assumed they broke the law, but the law had never actually been tested before a judge. Now, PHS had asked the question and, in just a few hours, would receive an answer from the Supreme Court of Canada.
At just past three in the morning, Evans, Townsend, and little Kes and Aza piled into the family’s Chevy minivan and made the short drive over to the East Hastings 100 block.
A couple of hours later, people with ties to Insite from all over the city did the same. Joseph Arvay was sitting in the back seat of a taxi, coming from the opposite side of town. In September in Vancouver, the sun doesn’t rise until past seven a.m. He remembers that it was still dark as his cab drove into the Downtown Eastside. “I was told that a few of us would be going down to Insite to await the results, and holy shit,” Arvay says, “there was a line around the corner. I wondered, ‘Who are all these people out at six in the morning?’ I realized it was all people waiting for the decision.”
The two former mayors, Philip Owen and Larry Campbell, were there, plus provincial and federal politicians including Bud Osborn’s old policy coach, Libby Davies, as well as Jenny Kwan and Hedy Fry, the pair of politicians from opposing parties who had come together to make the Vancouver Agreement happen. The city’s drug-policy czar, Donald MacPherson, was there, as was Dr Patricia Daly and other top brass from the health authority that paid for Insite (but which had initially refused to help PHS with the case). By six a.m., Insite was absolutely packed with politicians, media, and Portland staff and supporters. Outside were hundreds of PHS tenants and other members of the community who had formed a crowd that spilled off the sidewalk and into the street.
On September 30, 2011, hundreds of people gathered outside Insite long before sunrise, waiting for a decision on supervised injection from the Supreme Court of Canada.
Photo: Tyson Fast
As 6:30 a.m. passed, the crowd inside Insite grew so thick it was difficult to move. But Mark Townsend was alone. Adjoining Insite’s chill room is a small office. Townsend had sneaked off and holed up in there by himself.
“Next to me, I had two banners,” Townsend remembers. “One for if we won and one for if we lost.”
“Insite saves lives,” read the first. “Thank you so much to all who have supported Insite from day one.” And the second: “Stephen Harper, we beg you, please listen … Provide us an exemption letter to allow Insite to stay open.”
The pressure of that moment was greater on Townsend than anybody else—even Liz Evans. Townsend saw himself as the Portland’s fixer. When a program was placed on the government’s chopping block, he would find a way to keep it running. When a community group protested against PHS moving people into a social-housing project near their children’s school, Townsend addressed their concerns. Now, Townsend felt that the community had trusted him to solve the Insite question. That they were depending on him. He felt that Evans, the mother of his children, was depending on him. And that people’s very lives were in the balance. If Insite closed, its users would be forced to return to the alleys, injecting with puddle water and harassed by police, where if they overdosed, there was a chance there would be no one there to save them. It could not be allowed to happen, Townsend says. But if PHS lost in the Supreme Court of Canada, how could he fix that?
“That’s why I was sitting alone in a room with the phone,” Townsend says. “I couldn’t cope with that amount of pressure.”
There was no television or radio with him. He wasn’t listening to music or reading a book or the newspaper. Townsend just sat there, waiting for a call from one of their legal team’s agents at the Supreme Court in Ottawa who would tell him the verdict.
Then the phone rang, but it wasn’t a lawyer on the other end. It was a reporter with CBC News.
“What’s your comment?” the journalist asked. “You won.”
Townsend’s response was to ask if they were absolutely certain. “Are you really sure that what you are telling me is right?” he asked. The reporter read him a section of the court’s written decision. Insite had won.
Townsend felt only one emotion: relief.
Then he poked his head out the door of the office and called to the first person he saw. That was Bryan Alleyne, the former VANDU president and Ann Livingston’s old babysitter.
“Bryan, get Liz!” Townsend shouted.
While Alleyne ran to find her, Townsend telephoned their lawyer in Ottawa and confirmed the news again. Meanwhile, Evans was in the injection room, which was packed so tight that it took a moment for Alleyne to find her.
“Bryan came and got me and told me that Mark wanted to talk to me,” Evans says. Alleyne’s face told her what was coming. It had a huge smile across it and was already puffy from crying. Evans hurried through the chill room to the office where Townsend was waiting for her. “And as soon as I got through the door, Mark said, ‘We won.’”
“Fuck!” Evans screamed in joy. And then she hugged him.
“I couldn’t believe it,” she says. “I just felt this huge, incredible relief … It was liberating.”
Evans ran back to the injection room and found Tomic and hugged her and they cried. By now, the news was spreading throughout the building. Arvay received an email that he read off an iPad. He threw his hands up in the air and people around him began to cry with relief. From the injection room, Evans took word of the judge’s decision through the lobby and then outside. It all happened in a matter of seconds. She stepped through the door of Insite’s lobby and cried, “We won!”
And a huge roar went up from the street.
“I am so incredibly ecstatic today I don’t even know how to express it,” Evans said into a microphone. “Thank you all so much.”
On the other side of the country, in Ottawa for the decision, Dean Wilson was outside the courtroom, pacing back and forth in the Supreme Court of Canada’s massive marble lobby. When he heard the news, he stopped pacing, closed his eyes, and raised two clenched fists above his head in victory. And then he laughed.
Ann Livingston was also missing from the crowd at Insite that morning. She was at home, alone with their son, listening for news of the case to come over the radio. “It was six o’clock in the morning and I have a child,” she says, somewhat bitterly. “And no one ever said, ‘Oh, hey, bring Joe. We’ve got a babysitter …’ So I didn’t come to the thing. They just ignored me.”
Bud Osborn wasn’t there either. Nobody knows where he was for Insite’s victory.
Back in the injection room at Insite, after an initial wave of euphoria had swept through the building, the victory released a flood of very mixed emotions.
Coco Culbertson remembers how angry she felt that morning. “I hadn’t slept the few nights previous as I had a constant grinding fear,” she says. “We all felt raw and vulnerable. Like everything we loved was to be ripped away with the stroke of a pen. It was agonizing.” Setting up that morning, Culbertson says she couldn’t bring herself to make eye contact with anybody, and especially not Evans. “I couldn’t bear to look at Liz,” Culbertson says. “I felt like the only way to make it through to the announcement was to keep my head down and avoid the pending doom and the fight to follow. We all knew that if we didn’t succeed at the federal level we would have to soldier up and start all over. All the pain I felt, all the fear and anger I had been holding broke the levy and took over,” she continues. “I wasn’t overjoyed. I wasn’t thankful. I was fucking angry at the injustice of all of it. Fucking angry that this battle was allowed to happen. That one government mandate could cause so much harm and be so egregious that it almost was allowed to kill people. I didn’t feel redemption. I felt anger.”
After a little more time passed, Shelly Tomic, half-paralyzed by her endocarditis, stood up out of her wheelchair. “I was speechless for about ten minutes,” Tomic says. “I was crying, I was so sad. Nobody could wrap their mind around why I was so sad. I was in my wheelchair and I couldn’t walk far, but I stood up and I said, ‘You guys, nobody has bothered to take a moment of silence.’”
She demanded it happen, and immediately, if only for a few seconds, the crowded room fell quiet.
“We didn’t just do this for the people who are still here,” Tomic remembers saying. “If we had done this sooner, the ones that we didn’t save …” She trails off. “I wanted us to all remember them.”
Kerstin Stuerzbecher was standing nearby and recalls she had been thinking the same thing, feeling similar to how she did the evening when Insite first opened in 2003.
“Sad for the people who we lost,” she says.
Then the sun began to rise.
The Supreme Court of Canada found in favour of Insite, upholding the BC Supreme Court’s decision. But it did so on a different legal basis.
The BC court said that it was Canada’s Controlled Drugs and Substances Act (CDSA) that violated Insite users’ rights and therefore the country’s drug laws that must be addressed. The Supreme Court of Canada did not want to tackle the ultimate question of prohibition, and found that it did not have to. Instead, it focused on Section 56 of the act—the health minister’s power to exempt specific groups of people from the act’s penalties.
“The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects,” the decision reads.
Instead of focusing on the legislation itself, the higher court looked at how Conservative health minister Tony Clement had used Section 56 of the act to deny Insite the exemption sought by PHS. It focused on the safety valve.
“If there is a Charter problem, it lies not in the statute but in the Minister’s exercise of the power the statute gives him to grant appropriate exemptions,” the decision reads.
The judges called this “the alternative.” That “the Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice.”
“The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite,” it explains. “This limit is not in accordance with the principles of fundamental justice … The potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.”
The court said the Controlled Drugs and Substances Act would stand, but that the health minister must see that it does not apply where drug users receive health services required for their security of the person. “The Minister is ordered to grant an exemption for Insite under s. 56 of the CDSA,” the decision concludes.
And what about VANDU’s goals with the case and their ambitious play for an end to prohibition?
All the way from the BC Supreme Court through the BC Court of Appeal to the Supreme Court of Canada, no judge ever paid it any mind. In each court’s written decisions, the matter was dismissed with barely more than a few paragraphs’ explanation.
VANDU’s lawyer John Conroy maintains that it was a missed opportunity, and one that cost lives.
“We were pleased to see that the exemption for Insite would continue and that the court had ordered the government to keep it open,” he says. “But we were disappointed that they didn’t see that the real problem was not inside Insite, but outside Insite. And that it was going to continue to be a problem until that was addressed.”
Chapter 29
Crossing a Line
In 1991, the Downtown Eastside Residents Association gave Liz Evans ten rooms to look after inside a beat-up old building on East Hastings Street called the Portland Hotel.
In 2013, PHS Community Services Society received more than $20 million annually in government funding, operated with an additional $7 million
revenue, and controlled more than $59 million in assets.63
The PHS management team oversaw a staff of more than 300 people. In partnership with a branch of the provincial government called BC Housing, Evans and the organization ran fifteen social-housing buildings in the Downtown Eastside, providing care for more than 1,000 tenants with mental-health and addictions issues. Then there were another seventeen contracts PHS had with the health authority, Vancouver Coastal Health. The Portland ran a bank, a half-dozen commercial enterprises staffed by PHS tenants, and Insite, still North America’s only sanctioned supervised-injection facility.
When it came to social housing, PHS had become the establishment it had always sought to reject. In many ways, it operated as an arm of the government. But it didn’t act like it.
On the northern edge of the Downtown Eastside is a cobblestone thoroughfare called Blood Alley. It’s a beautiful, if slightly spooky place. Along much of the alley is a three- and four-storey SRO with a second-floor balcony running the length of it. When PHS took it over in 2008, it consisted of two buildings that were later connected on the inside. At the Stanley Hotel, PHS provided low-barrier housing to seventy-seven people with mental-health and addiction issues. And at the adjoining New Fountain Shelter, PHS took in between fifty and sixty people each night who had nowhere else to sleep.
Even by the take-what-we-can-get standards of PHS, the Stanley and New Fountain were falling apart. The roof leaked, there were holes in the walls, and the whole building was covered in graffiti, inside and out. Andy Bond took the lead on the New Fountain and enlisted the help of Kailin See, a younger PHS staffer who had joined the organization a couple of years earlier to help with the Insite campaign.
Together they came up with a plan to use the New Fountain Shelter to expand on PHS’s old reputation as housing of the last resort. The government had come to call PHS “low-barrier.” It was the bureaucracy’s term for the Portland’s willingness to house drug users and people with a mental illness and to not evict them when they exhibited symptoms associated with those issues. What Bond and See envisioned for the New Fountain would be “no-barrier.”
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