The power to appoint judges doesn’t mean Harper will get what he wants

On Insite, the cruellest blow against the feds’ case came from one of the PM’s own appointees
Newly appointed Supreme Court of Canada Justice Thomas Cromwell (R) speaks during a ceremony at the Supreme Court in Ottawa February 16, 2009. With him are justices (from L) Marshall Rothstein, Rosalie Silberman Abella, Marie Deschamps, William Ian Corneil Binnie, Chief Justice Beverley McLachlin, Louis LeBel, Morris Fish and Louise Charron. REUTERS/Chris Wattie (CANADA)
No home court advantage
Chris Wattie/Reuters

On May 13, Mr. Justice Ian Binnie and Mme. Justice Louise Charron announced they’ll retire from the Supreme Court of Canada this summer. Their replacements will be Stephen Harper’s third and fourth appointments to the top court, but the first two he’ll make as head of a majority government. By the next election, Harper will have named at least five of the court’s nine justices, maybe more.

The day before Binnie and Charron announced their retirements, quite by coincidence I spent half a day attending the top court’s hearings. The Supremes were hearing arguments about Insite, the Vancouver clinic where drug addicts use their street-bought heroin and other substances under medical supervision.

The case illustrated why a prime minister takes a keen interest in his power to appoint judges to the Supreme Court. But it also showed that the power to put a judge on the court isn’t a magic wand. When the final Insite decision comes down, don’t expect much of a rift between Harper’s appointees and the majority who were there before he came along.

Insite opened in 2003. Successive municipal administrations supported the idea, as have successive British Columbian governments. The federal Liberals granted the site an exemption from the Controlled Drugs and Substances Act (CDSA) so drug use that would be illegal outside the clinic could go on inside without fear of punishment. After the Conservatives came to power in 2006, then-health minister Tony Clement granted another exemption so Insite’s effects could receive more study. He and his successor, Leona Aglukkaq, have balked at providing a third extension.

Twice, lower courts said the evidence shows Insite reduces the risk to addicts’ lives while they are trapped in addiction, so the feds had no right to refuse more extensions. The Harper government appealed those rulings, which is how it wound up here.

Robert Frater, a crackerjack litigator for the federal Justice Department, was up first. His main argument was that provincial jurisdiction over health care must not trump federal jurisdiction over criminal justice—that Ottawa wants the option of arresting drug users even where B.C. wants to treat them. But first he tried to argue that Clement and Aglukkaq never actually made a decision on whether to extend the CDSA exemption. It’s been tied up in the courts, so they’ve held off on making that call, he said.

That didn’t go over well with Madame Justice Rosalie Abella. “A failure to actually make a decision—in response to a request—is still a decision,” she said. “There is a failure to extend. That’s on the table. There’s no dispute about the fact that there has been a failure to extend. Because there’s no extension.”

Frater retreated to his main point. If Ottawa grants the provinces a little say over the use of illegal drugs, who knows where it might end, he asked. “Could they also have the power to ensure that the drugs that are injected are not adulterated street drugs? Or to ensure whether the health professionals could perform the injection themselves?”

This time it was Chief Justice Beverley McLachlin who cut Frater off. “Don’t you think we should stick with the facts here? I mean, these are hypotheticals.”

Another federal lawyer, Paul Riley, took Frater’s place. All Ottawa wants to do is forbid “one component” of the so-called “harm reduction” approach to drug policy: clean, well-lit rooms where addicts can smoke or shoot up in the presence of medical professionals. “The CDSA does not prohibit treatment of addiction. It does not prohibit providing health care to addicts,” Riley said. “It doesn’t prevent needle exchange, for example.”

Now it was Binnie’s turn to push back. “But the one component is critical to the exercise. This is the component that saves lives.”

Riley tried another tack. Why had the feds, including federal Conservatives, granted extensions already? Merely as a sort of experiment, he said. “To permit a scientific study of the nature of that program, as a question of policy.”

McLachlin cut in. “And it worked.”

Mr. Justice Louis LeBel, so soft-spoken he was hard to hear in a big room filled with 30 black-robed laywers and about 100 spectators, agreed. “In the end this program somehow, while not being perfect, works,” he said to Riley. “Have you got anything that tends to demonstrate that this program doesn’t work?”

“I think that’s a fair observation, Justice LeBel,” was all Riley could manage.

This was not mere point-scoring. Several justices mentioned Section 7 of the Charter of Rights, which says the government cannot act in a way that restricts Canadians’ “life, liberty and security of the person.” They were asking Frater and Riley to justify shutting down a service that, in Abella’s words, “saves lives.”

But the cruellest blow against the feds’ case came from one of Harper’s own appointees. Thomas Cromwell wondered why the feds are so eager to protect the right to arrest drug users inside Insite when they don’t exercise that right anywhere in the Downtown Eastside. “If the police wanted to arrest people for possession, they could simply do it outside [Insite] on their way to the door,” Cromwell said in a tiny voice. “If you were seriously interested in preventing possession of those substances, all you could do is stand outside the door.”

Here too, Riley had little to say.

Insite’s opponents having exhausted their arguments, the clinic’s advocates took turns addressing the red-robed justices. The B.C. provincial government sent one of its departmental lawyers up, a boyishly handsome man named Craig Jones. He used to be famous.

In 1997, while still a law student, Jones was arrested for hanging signs that said DEMOCRACY, FREE SPEECH and HUMAN RIGHTS over the motorcade route to the APEC summit in Vancouver. It was excellent guerrilla theatre. Jones became the voice and face of the APEC protesters and now here he was defending the B.C. government’s constitutional prerogatives.

Jones would still rather argue broad principle than narrow technicality. He quoted Clement telling a parliamentary committee that money spent on Insite could have gone to some other, in Clement’s eyes better, treatment. “That’s our money,” Jones said on the B.C. government’s behalf. “That’s our spending decision…That’s the core of the provincial interest. Which treatments attract the dollars—the provincial dollars—is our business. Not the federal government’s.”

The justices will deliver judgment some months down the road. It will be one of the last rulings Binnie and Charron will be part of. Over the summer, Harper’s justice minister will consult with Ontario’s attorney general (Binnie and Charron are both from Ontario) and others to come up with a list of candidates to replace them. Five MPs—including a New Democrat and a Liberal—will come up with a list of six potential nominees. Harper and his minister will pick two. A parliamentary committee will quiz them, gently, before Harper’s new majority rubber-stamps the nominations.

“Overall, what you’re looking for is record, experience, judgment, judicial temperament,” Harper said during the federal election campaign. “These people sit on the bench a long time. We will choose very carefully.”

But he cannot choose a justice who would make the Charter of Rights go away. The two he has selected to date, Cromwell and Marshall Rothstein, have not diverged consistently from their colleagues. On this day, neither pursued lines of argument any different from the others. The only way to keep Insite from opening would have been to have a Harper government in place three years earlier, before that first exemption from the drug laws was granted. It’s Parliament, more than the courts, that will shape Canada’s future. Expect Harper to make precisely that point if he loses the Insite case, as he almost certainly will.