Bold and cautious? Dissecting the Supreme Court’s Insite ruling

Those who favour the reform of Canada's drug laws should be pleased

Brian Howell/Maclean's

“Insite saves lives. Its benefits have been proven.” With that blunt statement, the Supreme Court of Canada cuts to the heart of the matter: by denying Vancouver’s safe-injection facility, Insite, a further exemption from laws prohibiting drug possession, the federal government acts contrary to the Charter of Rights and Freedoms.

The ruling stands as a razor-sharp rebuke of the federal government’s rather fragile position, at least as in terms of the insurmountable evidence that Insite averts deaths from overdose, helps prevent the spread of disease, and facilitates treatment and recovery. The Court’s decision also stands as a potential landmark in Canadian constitutional law, having considerable implications for the obligations the Charter increasingly imposes on government.

Before delving into these two important elements of the decision, it is worth noting what the Court does not do.

The decision does not privilege the provinces’ role in health care over the federal government’s ability to determine criminal law. This is not a case in which British Columbia and the other provinces won a jurisdictional battle. The federal Controlled Drugs and Substances Act remains intact. Although the decision likely paves the way for provinces to open new safe-injection facilities, the balance of power between the provinces and the federal government remains otherwise unchanged.

Nor does the Court’s ruling pave the way for broader reform of the way Canada addresses the problem of illicit drugs. While the ever-expanding scope the judges give to the Charter make future challenges potentially ripe for success—another attempt at striking down the prohibition of marijuana, perhaps—this decision on its own places no burden on the Harper government to reassess its overall approach to drug policy.

In certain respects, the Court was quite cautious and tried to craft its decision as narrowly as possible. The Charter finding itself is limited to former Minister of Health Tony Clement’s decision to refuse Insite another exemption from Canada’s anti-drug laws. Not providing the exemption in this instance runs contrary to Insite users’ right to “life, liberty and security of the person” under section 7 of the Charter. The law itself, and the general discretion the minister has to make decisions within that framework, remain valid.

This underscores the extent to which the judges acknowledge the legitimate purpose and scope of the federal government’s power to prohibit and regulate illegal substances.

On the other hand, it would be a mistake to underestimate the significance of the Court’s decision. The judges gave the Harper government’s attempt to close Insite the legal equivalent of a UFC-style beating.

First, the Court dismisses the federal government’s argument that because it retains the constitutional power to criminalize drug use this somehow means the province cannot open Insite. The judgment notes that the exemption was not necessary for B.C. to have the power to open the site; rather, it was needed so individuals would be able to use the site. This is an important distinction, in that the Court reaffirms the provinces’ capacity to pursue health initiatives under their own constitutional authority.

Second, the judges flatly rejected the absurd argument that the risks affiliated with drug use are the result of an individual’s “choice” to abuse illegal and dangerous substances. The Court’s position reflects every reasonable reading of the available evidence. As Chief Justice Beverley McLachlin writes, “addiction is an illness, characterized by a loss of control over the need to consume the substance to which the addiction relates.”

Finally, the Court was particularly candid in its determination that the decision not to give Insite another exemption was “arbitrary.” McLachlin writes that “the effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.” For a Court that often applies tremendous caution and tentative wording to its judgments this is no small rebuke to the government’s ill-regard for the available evidence.

The fact that the decision is a unanimous one is also significant. It provides authority and clarity to the Court’s judgment because any dissenting judgment always leaves some room, however small, for uncertainty or an increased potential that a future judgment may overturn this one. As Paul Wells has noted, it also reflects the fact that the prime minister’s own appointees are not necessarily going to rule in his favour.

Proponents of Insite and those who favour broader reform of the country’s drug policies will no doubt be pleased by the Court’s strong enunciation of the Charter’s application, even if the judges were reluctant to go beyond the minister’s particular decision.

Yet the decision could have significant implications for the Charter’s impact on policy in other contexts.

Indeed, much of the Court’s logic was premised on the reasoning it applied in the 2005 Chaoulli case, which struck down a Quebec law that prohibited the purchase of private medical insurance. That decision, of which many of the same people who will laud today’s Insite ruling were critical, was very much rooted in the justices’ considerations of what made for good public policy, rather than any consistent reading of the Charter provisions governing the “right to life, liberty and security of the person.”

Given the Court’s generally cautious approach, it is impossible to predict with any certainty what this case portends. But the Court’s Charter jurisprudence in this area has slowly evolved to allow the Court to intrude into areas of substantive policy and to compel governments to provide particular services.

In this case, many will agree that the Court arrived at the “correct” policy decision. In future cases, however, it’s possible many of the same people will question whether the Court should be dealing with substantive policy issues at all.

Emmett Macfarlane is a political scientist at the University of Victoria. You can follow him on Twitter @EmmMacfarlane

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