Insite: the Harper government's sweeping, narrow defeat -

Insite: the Harper government’s sweeping, narrow defeat

Paul Wells on why the ruling may soon be a campaign ad for the Harper Conservatives


Brian Howell/Maclean's

This morning’s unanimous Supreme Court decision on Vancouver’s Insite safe injection site is categorical, urgent and beyond appeal: the Court ordered Minister of Health Leona Aglukkaq to issue an exemption “forthwith” permitting the clinic to keep operating. It took the minister barely two hours to announce she’ll comply. The defeat, for a government that has fought Insite at every turn, is clear.

It’s also pretty narrow. While dealing Stephen Harper a personal and unequivocal defeat on a file his government clearly took seriously, it reaffirms federal powers in ways that will probably come in handy down the road; it seeks to contain this decision to the single, existing facility; and (probably inadvertently, but all the same) it offers a strong political argument in favour of the Conservatives among voters who share Harper’s aversion to Insite.

The Insite case contained (at least) two different disputes: one over the federal division of powers between Ottawa and the provinces, and one over the Charter of Rights. The Charter dispute is sexier: When he sought to close Insite in 2008, was the minister of health (Tony Clement, Aglukkaq’s predecessor) endangering the “life, liberty and security of the person” guaranteed to drug injectors at Insite (and to the rest of us) under Section 7 of the Charter of Rights?

The federalism dispute is wonkier but hardly trivial: in a case where the feds claimed to be exercising their responsibilities under criminal justice and public safety, and the province claimed to be exercising its own responsibilities under public health, did one jurisdiction trump the other?

Let’s consider these in turn.

On federalism, the Supremes actually stick up for the federal government’s right to legislate in areas that may touch on provincial jurisdictions. Two provincial governments that hoped they could use this fight to advance a very broad notion of dominant provincial jurisdiction, Quebec’s and British Columbia’s, got nowhere with their arguments.

So the first thing Chief Justice Beverley McLachlin writes, on behalf of all her colleagues, is that there’s nothing to stop the federal government from passing a law that may touch on provincial jurisdictions. Point for the feds.

On the Charter, the Supremes actually go some distance toward defending the feds too. The Controlled Drugs and Substances Act, the law that makes possession of heroin and other drugs illegal, allows the government to lock people up for simple possession. Some Insite defenders said that leaves open the door to “arbitrary, overbroad or grossly disproportionate” action by the feds. No it doesn’t, McLachlin and her colleagues write, because the very law that prohibits possession also allows the health minister to provide exemptions. Indeed, Insite was able to open because of a federal exemption from the CDSA, and the Harper government in its early days granted another such exemption. “The availability of exemptions acts as a safety valve that prevents the CDSA from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects,” the Court writes.

Well, then, what’s the problem?

Simply that Clement’s failure to provide a third exemption endangered the health and safety of Insite users because it sought to interrupt a state of affairs from which they were already clearly benefitting. “The Minister’s refusal to grant Insite [an] exemption was arbitrary and grossly disproportionate in its effects, and hence not in accordance with the principles of fundamental justice,” the Supremes write.

“Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”

I might as well stop here and chat, at least briefly, with any readers who are now howling because they can’t imagine how a room where heroin addicts shoot their drugs into their veins can possibly be good for anybody’s health. I’m pretty sure I won’t convince anyone at this late date. All I can say is: those people were already addicted; they were shooting the stuff into their veins before Insite opened; they will shoot up anyway if it closes; and they would, if it closed, be doing it in highly toxic environments, using puddle water, one another’s used needles, and other dangerous equipment; and they’d be alone, so that if they overdosed or shot an embolism into a blood vessel or screwed up in some other way, they’d be endangering their lives.

Insite ensures that the act of using the drug won’t kill you. It ensures that an overdose won’t kill you. It sends you right past counsellors, in the same building, who are eager to help you try to get off the drug. There is a lot of clinical evidence to suggest this provides substantial health benefits, not only to the drug users but to their neighbours, which is why the Vancouver Police and the local Chinese business association both favour Insite’s continued operation. The “evidence” against these health benefits was so transparently bogus and laughable that the federal government’s own lawyers did not even bother trying to introduce any of it in court.

Let me pause from parsing the constitutional arguments here and note that, in opposing Insite, Stephen Harper’s Conservative government has managed to put itself on the wrong side of a provincial government’s prerogatives, the best judgment of the local police, the best judgment of a local community and the best judgment of immigrant business owners. Everywhere else in Canada, that’s supposed to be Harper’s electoral coalition.

Onward. Having re-asserted the feds’ right to legislate criminal law in areas that may sometimes blur with provincial health-care jurisdiction; having re-asserted the feds’ right to arrest drug users, and the federal health minister’s right to provide exemptions to avoid “arbitrary and grossly disproportionate” overreach — only then do the Supremes say the minister infringed the Charter protections of Insite users by failing to extend a previously-existing exemption.

Then McLachlin orders Aglukkaq to fix that breach by extending a new exemption right away.

Now. Does this open the floodgates to Insites opening from coast to coast like Tim Hortons? I’ve read suggestions to this effect from the odd doddering loudmouth, and even from respectable observers. But McLachlin and her colleagues take pains to suggest that the problem here was the failure to extend a service that had already proven its utility in local circumstances. People need to read Paragraph 140 of the ruling:

“The conclusion that the Minister has not exercised his discretion in accordance with the Charter in this case, is not a licence for injection drug users to possess drugs wherever and whenever they wish.  Nor is it an invitation for anyone who so chooses to open a facility for drug use under the banner of a “safe injection facility”.  The result in this case rests on the trial judge’s conclusions that Insite is effective in reducing the risk of death and disease and has had no negative impact on the legitimate criminal law objectives of the federal government.  Neither s. 56 of the CDSA nor s. 7 of the Charter require condonation of crime.  They demand only that, in administering the criminal law, the state not deprive individuals of their s. 7 rights to life, liberty and security of the person in a manner that violates the principles of fundamental justice. [my emphasis added – pw]

Well. How could a federal health minister decide on future exemptions? McLachlin serves up a long list of considerations that are a matter of evidence in the case of Insite and hypothesis in the case of any future facility. “The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.”

And the Supremes even hint, strongly, at how they would deal with such hypotheticals. VANDU, the Vancouver drug users’ collective that defended Insite in this case, had sought a broad, sweeping ruling from the top court to the effect that any arrest of any addict, anywhere for drug possession was an unacceptable attack on their Section 7 rights. McLachlin and her colleagues laugh VANDU out of court: “VANDU’s contention lacks an adequate basis in the record.”

So it’s at least plausible, and I think highly likely, that a health minister could refuse a first exemption from the CDSA for any new safe-injection facility, based on little more than a hunch that the facility would operate in a different environment, to different effect, than Insite. This court — deferential to the feds on federalism, deferential on the validity of the drug laws, skeptical of sweeping claims of drug users’ rights — would give that minister a fighting chance.

Which is why today’s ruling amounts very nearly to a campaign ad for the Harper Conservatives. If you like safe-injection drug sites, it says, vote NDP or Liberal, because those parties are clear that they like Insite and they want more. If you don’t like safe-injection sites, you can’t count on the laws or the courts, or even on Conservative-appointed Supreme Court justices, to keep those sites from proliferating. Only a Conservative government will avoid future Insites.

A lot of people won’t be swayed by that argument. The ones who might be swayed will be hearing it from Conservatives every time they vote.


Insite: the Harper government’s sweeping, narrow defeat

  1. I’d go one further to suggest that those who would be swayed by such an argument already vote Conservative anyway.

  2. Smokes are illegal(or very restricted), but not crack pipes

  3. Addiction is not a moral failing, and is not a choice.  However, the “war on drugs” increasingly comes off as both a deliberate choice, and a moral failing for those who so dogmatically pursue it.  I know the broader stance of criminalizing drugs wasn’t before the court, but this somewhat scattered and disjointed decision makes me wish it was.

    • And I don’t view the refutation of VANDU’s position as satisfactory in this regard, in that the core of this case was not about the broad rules of possession.

    • Don’t kid yourself – there’s usually a choice involved in addiction.  There’s an overwhelming supply of information regarding the harms of drug use, yet some people make a choice to use drugs anyway.  Some people become addicted when exposed to painkillers due to a medical condition, but one typically doesn’t develop an addiction to heroin without deciding to use heroin.  The moral failing is in deciding to seek the empty easy high of a drug fix rather than living life and dealing with its challenges.  Unfortunately, it takes far more moral fibre to overcome an addiction than it takes to simply choose not to use drugs in the first place.

      • I would be curious to know what kind of upbringing you had,  that created such a self-righteous ignoramus.

        • I wouldn’t call Atomic Walrus self-righteous I would say self-confident. Addiction is a weakness NOT A SICKNESS. Been there done that. 

          • Concur.

          • If you really had been there, you would not be saying, what you just said. 

          • Wow! What a shocking revelation; some human beings are weak and don’t cope too well with life’s difficulties. So what’! Question is are they worth saving and how best to help them. Merely labelling them is self righteous.

        • I wouldn’t say he is at all, I agree with his statements and don’t find them self-righteous in any way. He’s expressing his opinion, which he should be able to do without being personally attacked.

  4. Not sure about your interpretation concerning future applications for similar facilities. Granted, the court rejects the right of “anyone who so chooses” to claim a similar exemption. However, it’s hard to see how provincial and local health authorities fall under that categorization. The language suggests that the court is referring to non-governmental actors (read: VANDU & co.).

    Also, consider the most relevant section of the decision: “On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety. …  Where, as here, 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.”

    So there are two relevant factors the minister must consider when evaluating future applications: does the site “decrease risk” in terms of health, and is there evidence it will have a “negative impact” on safety?

    To the first point, the court is very clear. The decision already recognizes evidence from other jurisdictions (in Europe) as germane when evaluating the impact of Insite, and it all points in the direction of decreased risk. That evidence—not to mention the studies on Insite’s itself—would be equally relevant to future applications for injection sites in Canada.

    To the second point, given that the government could muster no evidence of negative impacts in this case, it’s hard to see how the minister would justify a future rejection.

    • According to the Supreme’s ruling though, the minister doesn’t have to justify a future rejection, the minister only has to justify a future exemption.

    • P. Rogie makes a strong argument, quoting a paragraph I should have quoted in my original post. I still think an obstreperous federal government could stall a new Insite-like clinic, in a different set of circumstances and another part of the country, pretty nearly indefinitely. 

      • Will this decision have any impact on government obstreperousness? Likely not.

        Would the justice department have a hell of a time trying to circumvent a concise, unanimous decision that lays out straightforward criteria for granting similar exemptions under the CDSA? Likely yes.

        Could this ultimately become a legislative affair? All bets are off—the CDSA isn’t written in stone.

        • I tend to agree that the justice department (aka ivory tower elites) will be able to see the writing on the wall, and therefore will not be keen on attempting to circumvent the concise, unanimous decision.

          However, the Justice Minister (ie the PM/CPC) will probably have different ideas, and will encourage the justice department to be obstreperous.

          More Insites will be opened over the next 10 years, but not within the next 3 years, and they will not open without the efforts of some highly motivated, tenacious and well organized groups.

          The next Insite-like facility will either take a followup referal to the SCC or some strong telegraphing of the decision that the SCC would make if given the opportunity.

          • Oh I don’t know. I just heard a clinic in Montreal claiming they would be ready to go next year if they can find the necessary human resources. If they or someone else moves soon enough it might be very difficult to ignore what looks like a firm directive from the SCC to strike a balace between public health and public safety. The govt is gonna have to find some more compelling reasons not to provide an exemption from the law.  

          • AIH chatted with someone from Montreal earlier this evening (likely the same clinic).  He did sound confident, but I’d expect no less.

            From what has been described elsewhere, I gather the SCC ruling is fairly narrow – although it does not totally slam the door on other Insite-like facilities it certainly does not fling the door wide open either.

            It seems to me that the government will be able to decline exemptions for other Insite-like facilities in other locations on the basis that not all of the Vancouver conditions exist.  Ie perhaps a police force is not quite as supportive, or the local city council or a local business group or a local resident group expresses grave concerns;  any of those conditions will provide enough cover for the federal government to be obstreperous, for at least a few years.

            Bottom line:  The CPC gains nothing by giving up now.

            PS  I should look up the meaning of the word obstreperous;  I just enjoyed the way it sounded/looks in the preceding comments, and I’m trying to promulgate its usage, perhaps incorrectly.   ;-)

          • PhilCP –

            I can see why some have concluded the govt has lots of room to get ‘stropy’ [ a favoured term for difficult children when i was a youngster – nicely describes the behaviour of this govt from time to time]. However i like this ruling because it seems to lay out some clear ground rules – both camps have to do their homework. It also seems to make pretty clear to the govt that there is an obligation on their part to provide compelling reasons why they might not favour any future exemptions. I tend to agree with you that smart route for the govt would be to argue why the next case is NOT the same as Vancouver. If they merely repeat their dismal performance over insite i’d say they stand to lose a few more of these cases. I’m pretty happy with the decision because i happen to think it makes sense to go on a case by case basis; it is possible that there are more appropriate solutions than just opening up new insites. The main victory i see for proponents of insite[ and the community] is that the govt doesn’t automatically hold the hammer because they have jurisdiction or some kind of mythical mandate over drugs and crime – they have to try to find a balance or offer alternatives themselves. 

          • kcm2

            Don’t disagree with that.


          • I just don’t see much evidence of a feisty SCC in this ruling. Brian Lilley disagrees, but I think they’d have been thrilled to let the feds proceed if that would not obviously have been putting lives in danger.

          • reply PWs –

            I was a little surprised to see so much daylight between Chantal’s view and yours. She seems to be making a clear link between the Khadr ruling and this one. I wonder if she’s just exercising her opinion or she’s got her ear to the ground on this? This was intersting:

            “It also found that the crux of the Insite issue was not in the reach of the federal statute on illicit drugs in areas of provincial jurisdictions, or in the division of powers between the two levels of government but rather in the uneven-handed approach of the Conservatives to Charter rights versus their policy objectives”

            It would indicate the court does have a mind of its own, may even be looking back as CH says; and the govt does seem to be a little surprised considering all that’s gone on before.
            It’ll be fun to see who’s closer to the mark here. Myself i hope this is a sign of a Supreme court that has decided it is necessary to draw a line for a possibly over confident PM…let’s see if the PM takes them up on it.  

      • Insite was a pilot project, and Victoria was next in line to get a clinic.  I don’t know if after all this time, it is still in the works. 

      • I supose the part of this story that isn’t getting mentioned is “Charter of Rights continues to be Bad for Democracy”. The Conservatives have a clear majority and deciding that their exercize of discretionary ministerial objectives violates “the security of the person” provisions of the Charter was legal window dressing. The Court made a decision on policy grounds, they’re suposed to make legal decisions not policy decisions which are the exclusive province of the legislature.

  5. I think drugs should be legalized and everyone should be responsible for their own behaviour.

    If the ‘evidence’ proves that crime and drug use decrease, while health improves, why don’t we have Insite’s on every corner? Sounds like Insite is cure to all of world’s issues, I don’t see why we shouldn’t have them every where if they are so fantastic at fixing societal problems. 

    If people wonder why middle classes are falling behind, this is great example. Taxpayers have to pay to make drug addicts comfortable – no sense that people are responsible for their own pathologies.It is too bad we no longer have a proper Liberal party that represented the individual. 

    We now have two major fascist parties – religious on one side and socialists on other – both agree that regular person is inadequate and needs constant help. Socialists want to enable every one’s pathologies and try to make destructive behaviour desirable while Cons are law/order and want to punish. Wish there was party that said it was no one’s business but the addict’s what addict does with life. 

    Also, I think it is pretty shabby that Supreme Court was unanimous that Government should enable people’s bad and destructive behaviour. Unanimity in decisions illustrates that no proper thought was put into decision or surely there would be dissent. I wonder if this decision will compel Harper to put some proper right wing people on Supreme Court. 

    PJ O’Rourke ~ There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences

    • “… no sense that people are responsible for their own pathologies…”    Leaving aside the meaning of pathology, are you prepared to assert that addiction is utterly a choice of the individual?
      If so, how would you explain the varying rates of addiction between segments of  the population?  (Gender, ethnic, socioeconomic, geographic, etc.?)

      “Unanimity in decisions illustrates that no proper thought was put into decision or surely there would be dissent.”   Or, the fairly scattered nature of the decision suggests multiple judgments were accounted for.  Also, since when is “proper thought” defined as right wing?   

      • “If so, how would you explain the varying rates of addiction between segments of  the population? ”

        Steve Pinker ~ Concrete behavioral traits that patently depend on content provided by the home or culture —which language one speaks, which religion one practices, which political party one supports— are not heritable at all. 
        But traits that reflect the underlying talents and temperaments —how proficient with language a person is, how religious, how liberal or conservative— are partially heritable.

      • “Also, since when is “proper thought” defined as right wing?”

        I didn’t write that, nor do I think it. 

        Nine people just agreed that Government should enable junkies and their bad behaviour -surely a jurist or two could have taken a tough love approach? 

        Unanimity on moral questions is absurd and half-assed.

        • You wrote:  “Unanimity in decisions illustrates that no proper thought was put into decision or surely there would be dissent. I wonder if this decision will compel Harper to put some proper right wing people on Supreme Court.”

           Your repetition of the word “proper” distracted me from your intended meaning.  Apologies for that.

          That said, your assertion that a lack of dissent suggests both a) half-assed reasoning, and b) a need for more politically dogmatic judges on the Supreme Court begs further explanation.  I don’t see the logic here, and by writing “Nine people just agreed that Government should enable junkies and their bad behaviour” I can’t help but sense you bring a fairly strong ideological/moral bias to  this case.

          I’m genuine in wanting to learn where you’re coming from, so please explain further.

          • Simple – nine jurists agreed that State should provide warm bed and nurse care to junkies. 

            Ask nine random people wherever you live and I will be amazed if they all agree Government should enable drug addicts. 

            Unanimity when it comes moral issues shows there is an ideology on Supreme Court bench that is disturbing because not everyone agrees with Liberal agenda. 

            I have experience with addicts with family and friends. Two addicts who fixed their lives and recovered from addiction had to hit rock bottom before they were motivated to change. Insite will prolong this process – no reason to change behaviour when state provides bed and nurse to do your drugs because you wont hit the bottom.

          • Insite provides a cubicle not a “warm bed” & the nurse care is to deal with possible overdoses as well as assistance for those looking to get off drugs.  Not all addicts had to “hit rock bottom” in order to get off drugs.  Don’t you even wonder if the addicts you refer to might have benefited from a program similar to Insite?  
            Drug addiction is NOT a morality issue, it is a health issue & must be dealt with as such.  The complete failure of the “war on drugs”, should show us that it’s time to deal with drug addiction in a different manner.  The definition of insanity is doing the same thing again & again but expecting a different result.

          • And if your experience was the be-all and end-all of the human experience, you’d have a point.

            The plural of anecdotes is not data, and that two addicts you know had to hit rock bottom before they changed in no way implies that others do, or even that those two needed to if the services offered at Insite are different from other methods that were used before.

            Beyond that, there is evidence that a lot of drug users miss rock-bottom completely and simply die. These are the specific people that Insite saves. That you feel this should not occur demonstrates your hypocrisy on your so called sanctity of life positions you hold in other arguments.

            Of course if you ask nine random people you’ll get different answers.  Ask nine random people how to fix a carbeurator and you’ll receive similarly insightful instruction.  There’s a reason we have experts.

            Also, the judges did not interpret moral issues. They interpreted law.  That’s what they’re experts in.  If you think Insite should have been judged on a moral basis, then you are a person in favor of the lynch mob and anarchy.

        • Your the one who defined it as simply a moral question, i’m pretty sure the court would have thown that one out as you say, absurd and half asssed. It ‘s a question of individual rights, health and public safety.

          • Who’s individual rights? I was unaware of right to be drug addict and expect warm bed and nurse care while you slowly kill yourself. 

            Surely, I have individual rights to not financially support someone who’s passively committing suicide. 

          • Read the charter…your ignorance is appalling.
            The rights involved relate to all our rights to life liberty and security..sec.7.

          • as a tax payer you’d be most interested in paying less for HIV patients too. Each of them costs over 1 million dollars.

            So, this will save you taxes and will save people.

            You should be pleased

          • “…as a tax payer you’d be most interested in paying less for HIV patients too. Each of them costs over 1 million dollars.”

            If they contracted HIV through blood transfusions I would vehemently disagree with this statement. If the disease occurred through a lifestyle choice, I’d say accept the consequences.

      • The day after “proper thought” was defined as progressive… and wrong.

    • “There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences”

      Unfortunately, one gets the feeling that those on the side of INSITE have no wish for anyone to feel any consequences for their actions.

      • It doesn’t get more consequential then dying – is that what you mean? Perhaps your view might change if it was your child at risk or if you’d ever had the experience of dealing with an addictions issue?

  6. I found this line from near the beginning of the judgement to be very interesting:

    “Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.”

    In general, I tend to agree with these sorts of rulings (e.g. this one, the older SCC ruling that made abortion legal, the recent Ontario Superior Court ruling that overturned the prostitution law, etc.) But I find myself fascinated with the way that the law considers harm to individuals to be more important than the effect on society as a whole.

    That is, it’s possible (possible! not saying this is the case!) that this decision, and the existence of safe-injection sites, may cause a few more people to try that first hit of heroin, knowing that there is a bit of a safety net there if they fall all the way into serious addiction. In that case, harm will have been done to society, but that potential harm isn’t considered in the decision.

    In case after case (think: abortion, same-sex marriage, prostitution, safe injection sites…), the conservatives argue for these sorts of diffuse societal harms in court, and always lose, because the law always considers harm to an individual to trump harm to society. The courts always recognize that society has an interest, represented through Parliament, but that will is usually trumped by the right of individuals not to be harmed.

    I know, I sound like a hardcore social conservative :) I guess I’m just saying that I at least understand their arguments, even though I don’t agree with them.

    • I’m not sure that the so-cons have a great record of objectively demonstrating the social harm they so often reference.  In the case of this particular judgement, there was overwhelming evidence that the social benefits were considerable, which seems (to me, and I may be wrong) to have held more weight than the potential benefit or harm to particular individual drug users.

    • There was actually at least one lawyer at the court arguing that Insite might be the kind of marginal incentive to use heroin you describe. The justices had little use for the argument. I think there’s another way to look at it.

      A very large number of people who’ve concentrated closely and intently on this file have rallied to the idea that supervised injection is part of the solution in Vancouver’s DTES. This includes every Vancouver mayor, from both main parties, since the question arose; local merchants; and the RCMP officers who were on the case. People who live a long way away and haven’t thought much about it think the whole idea is repugnant. And why wouldn’t they? Hey, there’s a room in Vancouver where addicts line up to shoot heroin. The Harper government appeals to this distant and distracted revulsion over close and engaged support. When they do that, it’s consistent with some parts of their philosophy, and less consistent with others, such as this: the best people to deal with a problem are the ones who live with it every day.

      • I’m thinking hard about what you’ve said here, and I’m wondering to what extent the concept of local/involved trumping distant/abstract has any history in legal system.  What you say makes perfect political sense (heck, perfect social sense), but I’m not sure how much it would hold weight with the court.

      • The other thing that is forgotten in all of this that Insite, is only one part of a what is called the ”Four Pillar’ stragegy;  The other three pillars are prevention, treatment and law enforcement.  When the government claims to believe in prevention and treatment, it suggests that they are not part of the drug strategy in B.C.

      • And opinion polls show that British Columbians as a whole support the Safe Injection Site more than others:

        I can’t find a web link but an Ipsos poll from February 2007 found even higher support for the safe injection site in Vancouver city – 61% outright support.

        It also found 74% support in Vancouver for the broader “Four Pillars” approach – not just 1) “harm reduction” a la supervised injection sites, but also 2) enforcement of trafficking laws, 3) prevention (through education), and 4) treatment.  Often lost in the debate is that the harm reduction strategies (also including needle exchanges and the NAOMI trial*) have always been just one piece of the puzzle for reform advocates locally.

        *NAOMI trial:  doctors giving “prescription” heroin to a small group of hard-core addicts to see if health outcomes are better than if they used street drugs.  And the evidence is: outcomes are better.

      • Well said. I live in Vancouver and the DTES is in between where I live in East Van and where I work downtown. Earlier this week in the early evening after having a pleasant meal in Gastown I caught the bus home.  On the way to my stop on Hastings, par for the course I saw a woman shooting up on the sidewalk and witnessed a number of people who clearly had neurological damage from doing drugs and/or were suffering from mental illnes.  The DTES doesn’t feel especially dangerous to walk around, there are always lots of people on the street and it is sandwiched between some of my favourite neighbourhoods in this city, Gastown, Chinatown, Strathcona and downtown.  It is a relatively small area that is chaotic, nasty, desperate and depressing.  It makes me very grateful for my circumstances. Tut tutting and judging DTES drug addicts’ life choices is not very helpful to say the least.  And when the VPD has come down hard on the street drug trade in the DTES, it has just moved to other nearby neighbourhoods, much to the consternation of the people who live and work in those neighbourhoods.  I would rather not see people shoot up or smoke crack on the street: it is gross.  But more importantly, I have enough compassion for  others to not want them to die on the street from a drug overdose or acquire AIDs or hepatitis or other health problems related to their drug use if it can be prevented.  Insite has proven that it reduces harm. I will continue to vote for local and provincial government representatives who support this and similar initiatives to manage the harm from drug addiction.

        As for Sean’s concerns about how the court weighs the concerns of the local/involved vs. distant/abstract, our court system is adversarial.  Each side presents its evidence and arguments within our legal framework (the Constitution, common law etc.).  In this case, as Paul Wells has set out in his post, the evidence and arguments clearly supported Insite.

      • “the best people to deal with a problem are the ones who live with it every day.”

        I’m all for it. When does this idea spread beyond INSITE?

    • RE: your fascination with the way that the law considers harm to individuals to be more important than the effect on society as a whole.

      That is not how the Charter works.  Section 7 of the Charter is concerned with certain rights that belong to the individual.  Our Charter rights are not absolute, however.  So after the Court determines a breach of a section 7 right, it has to consider section 1 of the Charter and apply what is commonly referred to as the Oakes test:  despite the breach of the section 7 right, can the law be demonstrably justified in a free and democratic society as a reasonable limitation on the individual’s rights and freedoms?  If it can’t, then the law falls.  If it can, the law will be upheld.  A balance between the rights of individuals and the interests of society is built into the Charter.  Ultimately, depending on the facts, the interests of the larger society may trump your rights as an individual.

      • Thanks for the clarification Lynda. I’m learning a lot about how this works. It’s interesting to compare it to the U.S. system (where I’ve been living for three years) in cases like the recent Prop 8 trial in California. There, too, the argument was between the rights of individuals and diffuse societal harm. However, in that case, the situation for the so-cons was even weaker because there was actual evidence from the Netherlands, Canada, and Massachusetts that the diffuse societal harm that the so-cons were predicting had not come to pass. So they had to weaken it even further to “these things have negative effects over very long periods of time – a half-century or more”.

        In any case, that seems like a pretty heavy burden to lay on the courts! Deciding the right balance between the rights of individuals and the interests of society. I can see how the shifting views among the Supreme Court of this balance over the decades has really driven a lot of the important legal changes we’ve seen. (Abortion, same-sex marriage, medical marijuana, safe-injection sites, and perhaps soon, prostitution.)

    • This is the well-known fallacy of the rational and fully-informed consumer. People who take that first shot of heroin do not make a list of the pros and cons. I doubt that most heroin experimenters plan on becoming addicts. Just like most of us don’t take our first drink thinking that  AA is there to expand our friendship circle.

      Most, I’m saying.


      • Exactly.  Great post.

  7. Very good analysis, Paul.   Well done.

  8. Here is another ‘hot potato’ announced just after the Insite decision.  B.C. looking at charging people who smoke higher B.C Medical premiums because they cost the province more from smoking related illnesses.
    Interesting to see what ‘can of worms’ this will open up.  Actually a bit mind boggling – using drugs is OK as you are already addicted, but smoking costs too much.
    Paul, I hope Vancouver’s mayor reads this as he just announced “This paves the way for other cities to open their own facilities.”

    • Where did you read that?

      • On CKNW news clip. 

    • My first impression was that that anti-smoking proposal is ill-advised.  It opens up such a can of worms.  I’m pleased that the BC Civil Liberties Association has come out against it.  I mean, why focus on smoking?  Where do you draw the line?  What about boozing?  Doing other drugs?  Eating bad food?  Never exercising?  It’s well-intentioned, but . . . I know that term  “nanny state tactic” is often overused, but IMO it totally applies here.

      • I don’t know what’s up with the B.C. Liberals, as in negotiating political fields full of cow-paddies, they keep stepping in the fresh ones, lol!!

      • A better remedy is to continue to raise the price of smokes…on that note…carbon tax anyone!!

  9. “Which is why today’s ruling amounts very nearly to a campaign ad for the Harper Conservatives. If you like safe-injection drug sites, it says, vote NDP or Liberal, because those parties are clear that they like Insite and they want more. If you don’t like safe-injection sites, you can’t count on the laws or the courts, or even on Conservative-appointed Supreme Court justices, to keep those sites from proliferating. Only a Conservative government will avoid future Insites.”

    I have some trouble concurring with this view, at least entirely. Seems to me the genius of the charter[ and this ruling] is that the SCC is applying strict evidentiary standards all around. If you want to open a clinic elsewhere you need to do the legwork to get the local community, civc authorities and the police largely onside and you need to show how the clinic will make a difference. If you’re the govt, even though you have the jurisdiction to enforce existing law you may not simply trample existing charter rights – you have to provide arguments[ and not blatentlybogus ones either] that bolster that view. It is not a license to deny willy nilly all new exemptions; negative repercusions must be proved. In my view it’s a win win – all aparties must make their case rationaly; prior to the charter the feds would have simply steamrollered these guys. I’m not saying the this govt in particular wont try to make a political case[ wedge issue?] out of this, but it is now much harder – both parties can claim a measure of victory. But this is a defeat for the govt nonetheless. I even like the jurisdictional ruling,since i favour a strong federal govt. Perhaps it’ll help in the future in undoing some the more idealogical and wrong headed decisions that this govt is almost certain to try and ram through over the next four years.

    • Wrongheaded in your opinion. Which you are entitled to.

  10. To be frivolous, I know Tony Clement wouldn’t have personally prepared this case, but there is still the question: Will poor Clement ever win one, ever again?

    • Chantal Hebert said Sat.  Clement made the decision to go the Supreme Court, so he must have taken  to Cabinet and PMO an opinion that they might win and they backed him. Was Harper and Cabinet shocked at the decision or expecting it?  

  11. Who the frick proto-analyses the minutiae of such a decision as Monsieuer Wells does in such a verbose response.
    Drugs used equalls death in a short response.
    Drugs not used equalls a chance at a life.
    Make your choice count, or not, is it really the elves around you that make the choice?

    • Shrooms are currently illegal too, fyi.  But I equally support your right to use them without criminal sanction.

    • Please post in an official language.

  12. I’m against Insite, simply because “harm reduction” and treatment are not the same thing.  As I’ve said before, I don’t think it’s the government’s business to be involved in harming people with the justification that it prevents further harm.  I don’t think that has anything to do with medicine.

    Anyway, I would prefer that drugs were legalized rather then places like Insite exist.  That’s because I think individuals should be more responsible for their own well-being, rather than government telling us what we can or cannot do.  The combination of drugs being illegal along with the government assisting with drug injection seems completely absurd to me.

  13. While I support the end decision, this seems like another case where the Harper government spits on it’s face to cut off it’s nose.  The Conservatives did not even bother to put an evidence-based argument before the court… it was more like QP i.e. we have a mandate.

    While Paul believes the ruling “helps” the Conservatives because they are the last bastion of keeping the 7-11’s outnumbering these druggie sites, it strikes me that the same legal arguments could be used to guarantee the supply of (local) illicit drugs to any person who is demonstrably medically benefiting from them. (Cheer to you Patch)  Indeed while the door is not wide open, there is now a wedge and who knows how that wedge will operate within the legal system.  Just as in the Arar case, this Conservative government has permanently ceded power to the Supreme Court over a relatively inconsequential case.

    If you hold onto the view of SH: strategic genius, this episode leaves one with the impression that he intends to force the Supremes to make Canada so Liberal that the population has to revolt against them and vote him Supreme Ruler for Life.  Of course the title could be an issue.

  14. If Insite has saved lives and reduced misery even a small amount, why would Harper refuse to even consider other sites?

    To me the Supreme court ruling, was a vistory over blind and deaf dogmatism….by wise, coherant and objective thought. It reinforced my beleive that we need the Supreme Court more than ever, during the time Harper is in Ottawa and power. The Supreme Court is an absolutely critical counterweight to dangerous dogmatism, and it always is.  

    • Amen.

      • YES!!

    • Please post in an official language.

  15. These Insite clinics are absolute idiocy. Why expend resources on passively enabeling drug addicts when we could be focused on getting them off the street and into rehabilitation? You know, actually solving the problem?

    • Rubbish

    • Guess what there is on the floor above Insite – a treatment centre.  Insite is only part of a co-ordinated approach which involves prevention, harm reduction (Insite), treatment and law enforcement.  It is amazing that people can  have such strong feelings about something they obviously know nothing about.

  16. This one area where I disagree with the religious morality of the Harper govt. Insight is a useful and productive idea. Harper also needs to legalize pot like alcohol and collect the taxes.  The US war on drugs is an abject failure. All it does is enrich criminals and corrupt public officials, including some policemen.  Maybe a sanctum in the Arctic is the answer.  If they want to shoot up and kill themselves, maybe we should have a facility up there and give them the dope as they do in Holland.  Anyone who uses narcotics is stupid. If they want to kick it, then we put them on a real program and spend money on it as long as they are genuiniely willing to kick it.,

  17. Where the Supreme Court Decision goes wrong is overstepping the bounds of its own rightful jurisdiction; and in that, violating the Constitution as plainly rendered and not as interpreted in convoluted fashion by that political entity.

    The merits of the Insite drug-injection site are debatable in a political forum; not halls of supposed justice. The SC should be deciding matters on the basis of primary and universal justice, on issues of plain violation of the Constitution or on issues of jurisdictional control. The issue does not fit any of these, except as a consequence of sophistry. In fact, their decision violates the upholding of primary and universal justice. Though discretion may be justified for circumstances, such as the Insite site,
    that discretion should be used sparingly; else it becomes a cover for favoritism. Furthermore, it should be decided in a political forum as a political issue, not a judicial court as a justice issue. Such decisions should not be subject to second guessing by 9 petit roi; who have it in their heads that they can construe laws and constitutions to give themselves the absolute right of political veto over any democratic originated legislation. It is a sophistic coup d’etat and reversal of the 17th Century English Revolution when another king lost his head for insisting on his right to override the democratic will of parliament.