Insite: Supreme Court Strikes a Blow for Evidence Based Government Policies

My advice to readers of this   paragon of progressiveness known as Forget the Box, with regards to the recent decision on the Insite safe injection and harm reduction program in Vancouver’s notorious east side, is savour it.   The sad truth is that this type of legal and moral victory will in all likelihood become increasingly rare in the near future, in light of the announced retirement of   two supreme court justices (Ian Binnie & Louise Charron), and the prospect of Harper packing the court with judicial conservatives, this kind of progress could become a thing of the past.

But first, allow me to provide a brief summary. The case stemmed from a challenge to certain sections (4.1 & 5.1) of the Controlled Drug and Substances Act (CDSA). The latter generally prohibits consumption of all the good stuff (marijuana, ecstasy, etc.) but crucially allows the Minister of  Health to grant exemptions under certain circumstances (s.56). The Insite program had been one such exemption until the Tories came to power in ’06 and decided to persecute junkies with no other place to turn. Harper’s policy on illicit drugs, as with almost every other area of his legislative agenda, is decidedly on the repressive side of the whole prevention vs. Lock-‘em-up-and-throw-away the key debate on crime ( see provisions of new Crime Omnibus bill or his proposed revival of controversial anti-terrorism sunset clauses, the subject of my last article). And the notion of treating drug addicts compassionately and their problem as a medical rather than a criminal one, is hardly an exception.

In   a surprising unanimous decision, the court ruled that the case directly involved the Charter of Rights and Freedoms section 7 right to life, liberty and security of the person. Further, that “a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.” Finally, according to the doctrine of proportionately, the government failed to make the case that the alleged benefits of denying these services to addicts were consistent with the principle of fundamental justice   and, hence, could not be saved by the reasonableness test ( Section 1)

I’d like to discuss some of the potentially far reaching repercussions of this. In particular the part about scientific evidence being taken into account by politicians in terms of the policy choices they make. What’s so fascinating about this point is that it opens a host of other issues where empirical evidence might challenge what would otherwise be the exclusive domain of the minister in charge of the file. Basically, they now would be legally obliged to take into account whether their decisions had a sound basis in fact, lest the policy of the unfortunate minister subsequently be overturned on the grounds that it was arbitrary, disproportionate and in violation of human rights enshrined in the Charter. Imagine the implications of this for such areas of ministerial discretion as euthanasia and prostitution. If people involved in either one of these currently illegal activities (though the latter is in the process of being reviewed by the Supreme Court, so stay tuned!) can base their arguments on the precedent set by the claimants in this case. In other words, successfully argue that the evidence overwhelmingly supports their position that outlawing them effectively severely jeopardizes the health of those engaged in them, then courts might just have to intervene increasingly in misguided government policies that were historically off limits to judges.

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