Pubdate: Fri, 06 Jan 2012
Source: Ottawa Citizen (CN ON)
Copyright: 2012 The Ottawa Citizen
Author: Dan Gardner, Ottawa Citizen


The Gardner key to understanding Stephen Harper's federalism is heroin.

Got your attention? Good. The word "federalism" tends to put people 
to sleep, but this is important stuff so I'll try to sex it up. Hence, heroin.

There's lots of it in Vancouver's benighted downtown eastside, as 
there has been for decades. Law enforcement and social services tried 
everything they could think of to get rid of the drugs and the crime 
and the social blights. But things only got worse.

In the mid-1990s, HIV and hep C were epidemic and overdoses soared. 
In 1993 alone, 200 people died.

In desperation, city officials turned to an idea tried with 
considerable success in Europe. Insite opened its doors in 2003.

Insite was an experiment. Drug users would be allowed to enter the 
premises with illicit drugs they had bought on the street - usually 
heroin or cocaine - and inject themselves in a clean place supervised 
by nurses. It was hoped that overdose deaths would decline, along 
with transmission of HIV and hepatitis C. And social workers would be 
better able to connect with marginalized addicts and steer them to 
detox and treatment.

Which is exactly what happened. A stack of studies published in the 
most prestigious peer-reviewed medical journals in the world 
confirmed that Insite saved lives.

Stephen Harper wasn't impressed, apparently. His government spent 
years trying to shut the facility down.

Under the Constitution, health and social services are provincial 
jurisdictions and the government of British Columbia supported 
Insite. So did the city of Vancouver. And the Vancouver police. And 
Vancouver social services. In fact, Insite had overwhelming local support.

But possession of heroin or cocaine is a crime, and criminal law is 
the jurisdiction of the federal government. Thus, for Insite to 
operate, it had to have a special exemption from the federal 
government. Federal law said such exemptions could be given for 
medical or scientific purposes. But the feds refused to renew it. No 
matter how clearly Insite fit the expectations of the law. No matter 
how the evidence in its favour piled up. The feds refused. So it 
would have to shut down.

Inevitably, the dispute went to the courts. Last September, the 
Supreme Court of Canada delivered its decision.

On the question of constitutional authority, the federal government 
won. The province does not have exclusive jurisdiction, the Supreme 
Court ruled, so Insite does require a federal exemption.

However, the Supreme Court further concluded the federal government 
hadn't exercised its discretionary power properly. In blunt language, 
the court said the federal government had acted arbitrarily and 
grossly disproportionately. And since lives were at stake, that 
violated the Charter of Rights.

It was a crushing defeat. But that's not the point here. More 
important for present purposes is what this episode says about 
Stephen Harper's approach to federalism.

Harper has always been an ardent and vocal decentralist, decrying 
federal government intrusiveness and demanding maximum latitude for 
provincial decision-making. The arguments he has used are classics. 
Straight from Poli Sci 101.

Which is what makes the Insite case so illuminating.

Insite could be the poster child for decentralization. It used local 
knowledge. It was supported locally. It was born of a local political 
culture that was very different from political culture elsewhere. And 
it was an experiment whose results could be studied by other 
jurisdictions. That ticks most of the decentralist boxes (which I 
outlined in my last column). And while it's true that Insite triggers 
the federal government's criminal law power, mostly it falls under 
health and social services - two areas the Constitution deems 
provincial jurisdiction.

If ever there was a case where a decentralist would say the federal 
government should butt out and let the province do its own thing, this was it.

But Stephen Harper refused to butt out.

Now recall the prime minister's plan for a national securities 
regulator. Provinces had been regulating securities since 
Confederation so it was clearly intruding on provincial jurisdiction. 
The federal government lamely argued that a changed economic 
environment somehow changed the jurisdictional question but in a 
December decision the Supreme Court unanimously rejected that. 
Harper's plan was an unconstitutional intrusion on provincial jurisdiction.

Further, consider how Harper has handled the federalism aspect of his 
criminal law policies.

Yes, the Constitution assigns the writing of criminal law to the 
federal government. But the administration of justice is a provincial 
mandate. In effect, the Constitution makes criminal justice a split 
jurisdiction, and that is how federal governments have always treated 
it - consulting closely with the provinces and not imposing laws that 
would have big impacts on the provinces if the provinces were 
opposed. But not this prime minister. He hasn't consulted. And when 
some of the provinces objected to the major costs they will bear 
thanks to the feds' omnibus crime bill, Harper told them to lump it.

Back in 2006, a few months after taking power, Harper declared "the 
time has come to establish a new relationship with the provinces - a 
relationship that is open, honest, respectful." At the time, this was 
taken as a signal that Harper's federal government would back off and 
the decentralization he had long advocated would unfold.

Many pundits seem to think that's what happened, and continues to. 
Look at the health deal, they say. It pulls the feds back from direct 
involvement in health policy, giving provinces greater latitude to 
decide policy. Classic decentralization.

Indeed. But look at the rest of Stephen Harper's record.

What I see isn't a prime minister pursuing decentralization as a 
philosophy of governance, or adhering to the demarcations of the 
Constitution. I see a prime minister who decentralizes what he 
doesn't care to control and centralizes what he does.

I see a prime minister who is pursuing, in this as in all things, his 
own power.

Dan Gardner's column appears Wednesday and Friday.
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