Insite: the Harper government's sweeping, narrow defeat

Paul Wells on why the ruling may soon be a campaign ad for the Harper Conservatives

Brian Howell/Maclean's

This morning’s unanimous Supreme Court decision on Vancouver’s Insite safe injection site is categorical, urgent and beyond appeal: the Court ordered Minister of Health Leona Aglukkaq to issue an exemption “forthwith” permitting the clinic to keep operating. It took the minister barely two hours to announce she’ll comply. The defeat, for a government that has fought Insite at every turn, is clear.

It’s also pretty narrow. While dealing Stephen Harper a personal and unequivocal defeat on a file his government clearly took seriously, it reaffirms federal powers in ways that will probably come in handy down the road; it seeks to contain this decision to the single, existing facility; and (probably inadvertently, but all the same) it offers a strong political argument in favour of the Conservatives among voters who share Harper’s aversion to Insite.

The Insite case contained (at least) two different disputes: one over the federal division of powers between Ottawa and the provinces, and one over the Charter of Rights. The Charter dispute is sexier: When he sought to close Insite in 2008, was the minister of health (Tony Clement, Aglukkaq’s predecessor) endangering the “life, liberty and security of the person” guaranteed to drug injectors at Insite (and to the rest of us) under Section 7 of the Charter of Rights?

The federalism dispute is wonkier but hardly trivial: in a case where the feds claimed to be exercising their responsibilities under criminal justice and public safety, and the province claimed to be exercising its own responsibilities under public health, did one jurisdiction trump the other?

Let’s consider these in turn.

On federalism, the Supremes actually stick up for the federal government’s right to legislate in areas that may touch on provincial jurisdictions. Two provincial governments that hoped they could use this fight to advance a very broad notion of dominant provincial jurisdiction, Quebec’s and British Columbia’s, got nowhere with their arguments.

So the first thing Chief Justice Beverley McLachlin writes, on behalf of all her colleagues, is that there’s nothing to stop the federal government from passing a law that may touch on provincial jurisdictions. Point for the feds.

On the Charter, the Supremes actually go some distance toward defending the feds too. The Controlled Drugs and Substances Act, the law that makes possession of heroin and other drugs illegal, allows the government to lock people up for simple possession. Some Insite defenders said that leaves open the door to “arbitrary, overbroad or grossly disproportionate” action by the feds. No it doesn’t, McLachlin and her colleagues write, because the very law that prohibits possession also allows the health minister to provide exemptions. Indeed, Insite was able to open because of a federal exemption from the CDSA, and the Harper government in its early days granted another such exemption. “The availability of exemptions acts as a safety valve that prevents the CDSA from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects,” the Court writes.

Well, then, what’s the problem?

Simply that Clement’s failure to provide a third exemption endangered the health and safety of Insite users because it sought to interrupt a state of affairs from which they were already clearly benefitting. “The Minister’s refusal to grant Insite [an] exemption was arbitrary and grossly disproportionate in its effects, and hence not in accordance with the principles of fundamental justice,” the Supremes write.

“Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. 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.”

I might as well stop here and chat, at least briefly, with any readers who are now howling because they can’t imagine how a room where heroin addicts shoot their drugs into their veins can possibly be good for anybody’s health. I’m pretty sure I won’t convince anyone at this late date. All I can say is: those people were already addicted; they were shooting the stuff into their veins before Insite opened; they will shoot up anyway if it closes; and they would, if it closed, be doing it in highly toxic environments, using puddle water, one another’s used needles, and other dangerous equipment; and they’d be alone, so that if they overdosed or shot an embolism into a blood vessel or screwed up in some other way, they’d be endangering their lives.

Insite ensures that the act of using the drug won’t kill you. It ensures that an overdose won’t kill you. It sends you right past counsellors, in the same building, who are eager to help you try to get off the drug. There is a lot of clinical evidence to suggest this provides substantial health benefits, not only to the drug users but to their neighbours, which is why the Vancouver Police and the local Chinese business association both favour Insite’s continued operation. The “evidence” against these health benefits was so transparently bogus and laughable that the federal government’s own lawyers did not even bother trying to introduce any of it in court.

Let me pause from parsing the constitutional arguments here and note that, in opposing Insite, Stephen Harper’s Conservative government has managed to put itself on the wrong side of a provincial government’s prerogatives, the best judgment of the local police, the best judgment of a local community and the best judgment of immigrant business owners. Everywhere else in Canada, that’s supposed to be Harper’s electoral coalition.

Onward. Having re-asserted the feds’ right to legislate criminal law in areas that may sometimes blur with provincial health-care jurisdiction; having re-asserted the feds’ right to arrest drug users, and the federal health minister’s right to provide exemptions to avoid “arbitrary and grossly disproportionate” overreach — only then do the Supremes say the minister infringed the Charter protections of Insite users by failing to extend a previously-existing exemption.

Then McLachlin orders Aglukkaq to fix that breach by extending a new exemption right away.

Now. Does this open the floodgates to Insites opening from coast to coast like Tim Hortons? I’ve read suggestions to this effect from the odd doddering loudmouth, and even from respectable observers. But McLachlin and her colleagues take pains to suggest that the problem here was the failure to extend a service that had already proven its utility in local circumstances. People need to read Paragraph 140 of the ruling:

“The conclusion that the Minister has not exercised his discretion in accordance with the Charter in this case, is not a licence for injection drug users to possess drugs wherever and whenever they wish.  Nor is it an invitation for anyone who so chooses to open a facility for drug use under the banner of a “safe injection facility”.  The result in this case rests on the trial judge’s conclusions that Insite is effective in reducing the risk of death and disease and has had no negative impact on the legitimate criminal law objectives of the federal government.  Neither s. 56 of the CDSA nor s. 7 of the Charter require condonation of crime.  They demand only that, in administering the criminal law, the state not deprive individuals of their s. 7 rights to life, liberty and security of the person in a manner that violates the principles of fundamental justice. [my emphasis added – pw]

Well. How could a federal health minister decide on future exemptions? McLachlin serves up a long list of considerations that are a matter of evidence in the case of Insite and hypothesis in the case of any future facility. “The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.”

And the Supremes even hint, strongly, at how they would deal with such hypotheticals. VANDU, the Vancouver drug users’ collective that defended Insite in this case, had sought a broad, sweeping ruling from the top court to the effect that any arrest of any addict, anywhere for drug possession was an unacceptable attack on their Section 7 rights. McLachlin and her colleagues laugh VANDU out of court: “VANDU’s contention lacks an adequate basis in the record.”

So it’s at least plausible, and I think highly likely, that a health minister could refuse a first exemption from the CDSA for any new safe-injection facility, based on little more than a hunch that the facility would operate in a different environment, to different effect, than Insite. This court — deferential to the feds on federalism, deferential on the validity of the drug laws, skeptical of sweeping claims of drug users’ rights — would give that minister a fighting chance.

Which is why today’s ruling amounts very nearly to a campaign ad for the Harper Conservatives. If you like safe-injection drug sites, it says, vote NDP or Liberal, because those parties are clear that they like Insite and they want more. If you don’t like safe-injection sites, you can’t count on the laws or the courts, or even on Conservative-appointed Supreme Court justices, to keep those sites from proliferating. Only a Conservative government will avoid future Insites.

A lot of people won’t be swayed by that argument. The ones who might be swayed will be hearing it from Conservatives every time they vote.

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