[Canada] Canadian Politics Redux

[Malthus]

There is no doubt in my mind that this case will profoundly affect drug treatment in Canada.

[Malthus]

The decision itself:

http://scc.lexum.org/en/2011/2011scc44/2011scc44.html

I'm slowly working my way through it.  Like CC, I've just skimmed the headnote so far.

As to GF's point - it was a unanimous decision, so the two Harper appointments concurred in the result.

It is remarkable that all judges, after reviewing the evidence before them, unanimously came to the decision that it was arbitrary and unreasonable to prohibit this form of treatment.

[Neil]

You are both wrong. The case was not decided on division of power grounds - that is, the argument was made, but defeated: drug regulation remains exclusively federal.

The federal Minister was ordered to grant a further exemption (which had been previously granted some years ago).

From the headnotes:

The Minister's failure to grant a s. 56 exemption to Insite engaged the claimants' s. 7 rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister's decision, but for the trial judge's interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants' s. 7 interests and constitutes a limit on their s. 7 rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

And that is why, for justice to be served, every member of the Supreme Court must be killed.

[Grey Fox]

You are both wrong. The case was not decided on division of power grounds - that is, the argument was made, but defeated: drug regulation remains exclusively federal.

The federal Minister was ordered to grant a further exemption (which had been previously granted some years ago).

From the headnotes:

The Minister's failure to grant a s. 56 exemption to Insite engaged the claimants' s. 7 rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister's decision, but for the trial judge's interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants' s. 7 interests and constitutes a limit on their s. 7 rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

And that is why, for justice to be served, every member of the Supreme Court must be killed.

Stop saying that, BB's going to have to prosecute you.

[Grey Fox]

Quebec's AG had a weird argument in this.

The Attorney General of Quebec submits that ss. 4(1) and 5(1) of the CDSA are partially invalid because they exceed Parliament's jurisdiction to enact criminal laws under s. 91(27) of the Constitution Act, 1867.  Quebec argues that while the federal government is permitted to criminalize the possession and trafficking of illicit drugs in many contexts, prohibiting these drugs in a medical context is ultra vires the federal government.  Quebec acknowledges that its approach might appear novel.

[51]                          This argument appears to confuse the constitutional validity of a law with the applicability of a valid law.  When determining whether a law is valid under the division of powers, the Court looks to the dominant purpose of the law.  The fact that the law at issue in this case has the incidental effect of regulating provincial health institutions does not mean that it is constitutionally invalid.  A valid federal law may have incidental impacts on provincial matters: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 28; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 23.  It is therefore untenable to argue, as I understand Quebec to do, that a valid federal law becomes invalid if it affects a provincial subject, in this case health.   

I get the AG's agenda behind it but really, you made that argument in front of the SCC?

[Jacob]

It is remarkable that all judges, after reviewing the evidence before them, unanimously came to the decision that it was arbitrary and unreasonable to prohibit this form of treatment.

Indeed. It will be interesting to see what happens next.

By the way, I passed by Insite on my way to work. Lots of people there to celebrate the decision, including media and cops.

Less than a block away (in both directions), the usual East Hastings types were milling about. I'm pretty sure that closing Insite would not have deterred drug use in any shape or form.

[Neil]

There is no doubt in my mind that this case will profoundly affect drug treatment in Canada.

Why bother with treatment at all?  The Supremes think it's a Charter right to shoot up and have the government pay for a nice place for you to do it.  Yet another devastating effect of Trudeau's folloy.

All fucking lawyers must fucking hang.

[crazy canuck]

The way I see it, the elected politicians of British Columbia want this.  It is the elected politicians of the Federal government who do not want it.
It's a clear case of a province's rights trampled by the Feds.  Wrong or not, it's what the people want, so the Feds should just respect the provinces and let them do what they want.  Heck, that entire criminal code should be provincial jurisdiction, just like the US.

That is not the way the Court saw it.

It is still very much a Federal decision.  The Court ruled however that section 7 of the Charter must be taken into consideration when the government makes its decision.

Since all government decisions (and all law in Canada) must be informed by the Charter I do not see this as much of a departure from the status quo as BB does.

[crazy canuck]

It is remarkable that all judges, after reviewing the evidence before them, unanimously came to the decision that it was arbitrary and unreasonable to prohibit this form of treatment.

Indeed. It will be interesting to see what happens next.

The blue print is now set for other provinces to seek exemptions from the Federal government.  If other provinces go that route then I agree that this will become a very significant decision.  If Insite is the only clinic opened then this will likely become a curiousity of Vancouver and nothing more.

[Barrister]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

[crazy canuck]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

I am not sure how that would work. The Court clearly said this was not a Provincial matter.  But I suppose one potential scenario is that groups could bring an Action requiring the Provincial government to fund which would in turn cause the Provincial government to seek an exemption.

But that first step is a very difficult one to overcome and I dont this case speaks at all to the initial decision to fund.  Indeed, if the Province decided to stop funding the Insite clinic this case would not help Insite at all and I dont think a legal argument could be made that the Province must fund.  In my opinion that decision is still fully within the political domain.

[Malthus]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

Legally? No.

The case states that the feds must reasonably grant the required exemption to allow the program to legally work if the province creates such a treatment program, but does not state that the province must create such a program in the first place.

Obviously, the latter is far more intrusive.

However, it may give a big boost politically to those advocating for such programs, as a presumably neutral and influential arbiter - the SCC - has examined the evidence and has concluded that such programs are reasonable. 

[Barrister]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

Legally? No.

The case states that the feds must reasonably grant the required exemption to allow the program to legally work if the province creates such a treatment program, but does not state that the province must create such a program in the first place.

Obviously, the latter is far more intrusive.

However, it may give a big boost politically to those advocating for such programs, as a presumably neutral and influential arbiter - the SCC - has examined the evidence and has concluded that such programs are reasonable.

Why not?  How is a province's decision to not fund an Insite-like facility any less a violation of an addict's s. 7 rights than is the fed's decision not to grant an exemption?

I don't like to make slippery slope arguments, but, well, some slopes are indeed slippery.

I hate, hate, hate the courts making a Charter analysis on what are complex social policy issues.

[Grey Fox]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

Legally? No.

The case states that the feds must reasonably grant the required exemption to allow the program to legally work if the province creates such a treatment program, but does not state that the province must create such a program in the first place.

Obviously, the latter is far more intrusive.

However, it may give a big boost politically to those advocating for such programs, as a presumably neutral and influential arbiter - the SCC - has examined the evidence and has concluded that such programs are reasonable.

Why not?  How is a province's decision to not fund an Insite-like facility any less a violation of an addict's s. 7 rights than is the fed's decision not to grant an exemption?

I don't like to make slippery slope arguments, but, well, some slopes are indeed slippery.

I hate, hate, hate the courts making a Charter analysis on what are complex social policy issues.

Because they are not laws?

More asking then stating.

[Barrister]

Doesn't this decision open the door to activist groups launching suits all across Canada to force provinces to open similar sights?

Vancouver's Downtown East Side is probably the biggest congragation of injection drug users, but they're hardly unique.

Legally? No.

The case states that the feds must reasonably grant the required exemption to allow the program to legally work if the province creates such a treatment program, but does not state that the province must create such a program in the first place.

Obviously, the latter is far more intrusive.

However, it may give a big boost politically to those advocating for such programs, as a presumably neutral and influential arbiter - the SCC - has examined the evidence and has concluded that such programs are reasonable.

Why not?  How is a province's decision to not fund an Insite-like facility any less a violation of an addict's s. 7 rights than is the fed's decision not to grant an exemption?

I don't like to make slippery slope arguments, but, well, some slopes are indeed slippery.

I hate, hate, hate the courts making a Charter analysis on what are complex social policy issues.

Because they are not laws?

More asking then stating.

But both are decisions...