Pubdate: Sat, 01 Oct 2011 Source: Vancouver Sun (CN BC) Copyright: 2011 The Vancouver Sun Contact: http://www.canada.com/vancouversun/letters.html Website: http://www.canada.com/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Peter McKnight, Vancouver Sun INSITE VICTORY AN EMBARRASSMENT FOR HARPER Denial of Health Services and Increased Risk of Death Among Drug Users Outweighs Any Benefit From Absolute Prohibition on Drug Possession If nothing else, Friday's unanimous Supreme Court of Canada decision on the future of Insite, Vancouver's supervised injection site, reveals the federal government's striking ability to snatch defeat from the jaws of victory. And in spectacular fashion. The plaintiffs, after all, lost on both of their primary grounds of appeal, yet still managed to win the case. The plaintiffs' first argument, which previously persuaded the B.C. Court of Appeal, concerned the doctrine of interjurisdictional immunity, while the second argument, which previously convinced the B.C. Supreme Court, concerned section 7 of the Charter. Yet, while these two arguments swayed lower courts, the Supreme Court of Canada wasn't having any of either. Interjurisdictional immunity usually concerns conflicts between laws made by federal and provincial governments and states that, under certain circumstances, the powers of one level of government must be protected against intrusion by the other level. In this case, the plaintiffs argued that Insite - as part of the province's health care responsibility - must be protected from the federal criminal law, which would otherwise criminalize the behaviour of both staff and clients of Insite. The Supreme Court rejected this reasoning, noting, among other things, that if federal laws were inapplicable to health care, it could ultimately prevent the federal government from legislating in areas such as human cloning and euthanasia. So the court sided with the federal government in dismissing this ground of appeal. The plaintiffs' second ground of appeal concerned section 7 rights to life, liberty and security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. And the court agreed that by prohibiting possession of drugs, the Controlled Drugs and Substances Act (CDSA) limits those rights because it prevents users from accessing health care. However, in an effort to show that such limits were not in accord with the principles of fundamental justice, the plaintiffs argued the law prohibiting possession was arbitrary, grossly disproportionate and overbroad, and it is here that the court disagreed. The court noted that such arguments only work if the section of the CDSA prohibiting possession is taken in isolation. Yet the law must be read as a whole, and the CDSA contains a section that permits the minister of health to grant exemptions from the law for medical or scientific purposes. In effect, this section acts as a "safety valve" that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate. Indeed, Insite had been operating on just such an exemption, and this legal action was commenced precisely because the minister failed to provide a further exemption. The plaintiffs therefore failed on both of their primary grounds of appeal, which means the federal government won. Yet, it still managed to snatch defeat, thanks to the ministerial decision to refuse a further exemption, a refusal that flew directly in the face of science, common sense and, now, the Constitution. While courts generally respect ministerial discretion, the court emphasized that ministers' decisions must conform to the Charter. And as with its analysis of the CDSA, the court concluded that the plaintiffs' section 7 rights to life, liberty and security of the person were limited by the ministerial rejection of a further exemption. However, in contrast to its analysis of the CDSA, the court held that the minister's refusal was not in accordance with the principles of fundamental justice and was, therefore, a violation of the Constitution, because it was arbitrary and grossly disproportionate. As for arbitrariness, the court noted that Insite furthers the goals of promoting public health and safety - the primary objectives of the CDSA - and hence the ministerial decision actively undermined them. And as for gross disproportionality, the court argued that the effects of the decision - denial of health services and increased risk of death among drug users - outweighs any benefit derived from maintaining an absolute prohibition on drug possession. Having found that the ministerial decision violated the Constitution, it remained to the court to find an appropriate remedy. And in what must be an embarrassment to the government, the court declined to send the matter back for reconsideration - there is nothing to be gained and much to be risked in doing so, it said - and instead ordered the minister to grant an exemption. This doesn't, however, mean that further exemptions, whether for Insite or other proposed similar facilities, will be granted automatically. Instead, the court emphasized that such decisions must be made on the basis of all relevant evidence related to the site's impact on public health and safety. In other words, to exercise discretion in accordance with the Charter, the minister must do exactly what any responsible policy-maker would do and consider all of the relevant evidence. This is all supporters of Insite have ever asked of the government. And it's the very least the government should do. - --- MAP posted-by: Richard R Smith Jr.