Not even arguing the science - Macleans.ca
 

Not even arguing the science


 

Whatever Tony Clement has said about the “evidence”—and whatever value you are supposed to place on Mr. Clement’s public pronouncements—the government’s lawyers managed to concede during yesterday’s Supreme Court hearings that Insite has worked.

Federal lawyer Paul Riley conceded health ministers allowed it to operate from 2003-2008 following a wave of deaths in the 1990s “to permit a scientific study of the nature of that program as a question of policy.” 

“And it worked,” interjected Chief Justice Beverley McLachlin. She cited the trial judge’s findings based on research showing addiction is an illness; unsanitary equipment is linked to infections and disease, and risk of death is lessened by supervision of qualified health professionals. “Lives are being saved, diseases are being prevented by this site, and are we putting too fine a point on it by saying the site has nothing to do with it?” McLachlin said.

“In the end this program somehow, while not being perfect, works,” said Justice Louis LeBel. “Have you got anything that tends to demonstrate that this program doesn’t work?”

Riley stammered in reply: “I think that’s a fair observation.”


 

Not even arguing the science

  1. As someone who would like to see Insite remain open, I hate the fact that this case has been punted to the courts.  The problem with it being a constitutional law case is that, in terms of black-letter constitutional law (at least in terms of the division of powers between the feds and the provinces), it’s clearly the case that the feds have the criminal law power, and I think that most people (including most judges) would assume that that includes the power to designate certain drugs as being illegal.  So unfortunately, I could see a judge who is actually sympathetic to Insite nevertheless ruling in the feds’ favour on the grounds that even if what the feds are doing is lousy policy, they have the constitutional authority to close down Insite if the wish to do so.

    • Maybe not; since (as I understand it) the clinic is not providing the drugs – just clean paraphernalia and a safe environment (and counselling for those who want it), in a sense they aren’t breaking the law but merely providing a place where the law can openly be broken.

      And, since the main objective of the clinic is to improve the health and well-being of addicts, closing the clinic is arguably denying health services to an identifiable group – which may constitute Charter discrimination.

      • Unfortunately, not so simple as that.

        A provincial government cannot set up an organization that deliberately, indeed the raison d’etre of which, is to flout the law.

        And the province recognizes that. If that was all it was about, then they wouldn’t need the federal government’s permission by way of Drug Act exemption. The case is about the power of the government to grant that exemption or the province to force the federal government to give it when it is applied to matters of provincial jurisdiction.

    • Just to add….my understanding was that the Feds were arguing the ‘drug control’ aspect under Federal jurisdiction and BC is arguing ‘health’ which comes under provincial jurisdiction. Completely agree with you and KeithBram…what I find odd is why the Tory government, which has long argued for decentralization in favour of the provinces would pick this one, unique and particular issue to bring forth the full weight of the federal government’s resources….especially given that with a majority there is no need to throw red meat at the base any longer.

    • agreed.  Anyone else remember when conservatives believed that policy and legislation should be made in Parliament and not in the courts?

      • How are they making ‘policy and legislation’ in the courts?  The feds passed legislation that they think is validly within their exclusive competence.  They got sued and defended themselves in court.   

        • I agree with Olaf on this.  Although I’m a big supporter of Insite, it’s definitely the Insite supporters who are asking the court to make an “activist” decision here, not the feds.  The feds are arguing for a conservative, black-letter application of the constitution here (especially on division of powers); if the bench rules in favour of the Insite supporters, it’s going to be quite a creative, or outright activist, decision.

          • The division of powers issues here are not remotely clear. The criminal law power is very broad, but it can’t be used to intrude on provincial jurisdiction willy-nilly. There’s an obvious conflict here between federal and provincial jurisdiction, and I’m not at all sure what the SCC will or should rule, because there are a lot of complicated issues to consider. At the BCCA, both the majority and the dissent made very strong arguments.

          • No it’s pretty clear. No one has ever challenged the federal jurisdiction over drug control. What is allowed and not, what is an exemption to what is allowed, is clearly federal. 

          • But it clearly touches on health care, which is clearly provincial. There are established doctrines for resolving conflicts like this, and no, they are not simple.

          • Of course it “touches” on healthcare. The rules are pretty clear, though, it’s the fact patterns to which they get applied that are always complicated. And if it was as simple as being provincial, then the province would never have needed the federal exemption in the first place and wouldn’t now be fighting for federal exemption, would they? What crime measure doesn’t “touch” on a provincial jurisdiction? Property is a provincial jurisdiction, but do you think a province could adopt an exception to the crime of theft and anyone who is a drug addict or mentally handicapped can’t be charged for theft?

          • The province isn’t seeking to get the federal exemption again (and it’s a good thing, too, since they would never ever get such an order). It’s arguing that, on federalism grounds, it never actually needed the exemption.And you know what? Fine. The CDSA does more than just “touch on” provincial jurisdiction. The CDSA as applied to Insite amounts to the criminalization of the provincial exercise of a provincial responsibility. If I were trying to figure out whether there are any non-Charter limits to the criminal law power, this sort of situation is probably where I’d start looking. As the majority at the BCCA rhetorically asked, “Could Parliament legislate to effectively prohibit a doctor from using a scalpel?”You also seem to be missing something important here. The legal argument about Insite isn’t about shielding the addicts from criminal liability; it’s about shielding the Insite employees who are trying to provide a medical service.So to answer your hypothetical question: No, but the situations are not analogous. If you can think of some bizarre scenario in which a provincial action under its property jurisdiction would involve providing a service to certain thieves which would under normal circumstances open up the service provider to criminal liability, that would be somewhat analogous. Good luck with that.

          • Fair enough. Better example: what if, to recoup some taxes on the transfer of motor vehicles and eliminate a black market and reduce police budgets (all provincial and all worthy policy aims), the province set up a part re-seller’s market for stolen vehicles? Run by provincial employees, but they don’t sell, and sales are taxed by the province. Is this OK?
             
            As for your scalpel example, they do that already. It is the feds that regulate what kind of guns and other weapons are permitted or not. The tougher question is could the feds outlaw specific medical procedures? The SCC has said yes: while they found in favour of Morgenthaler in 1988, all the Supreme Court said was that the process imposed on women put their security of person at risk. A criminal code ban on abortions or late term abortions – which is coming in the fall, by the way! by way of a private member’s bill – is inherently overlapping with health and inherently within the federal jurisdiction. Even if the province set up “safe houses”, anyone assisting an illegal abortion as well as the patient herself would be charged as criminals. Paramountcy clearly rules here. As it does with drug regulation.
             
            Think of the flip side, which is what I am more worried about, frankly (since I think InSite does tremendous work and it is an outrage what Harper is doing). If the provinces win this battle, then universal public health care is truly doomed because it means we’ve flipped paramountcy on its head and anything in any provincial authority overrides the federal authority, especially in healthcare but in so many other fields too.

          • But having said that, I do agree with what Olaf said here. I would prefer that the feds would recognize that they have a bad law and change it, rather than defending it, but defending a law in court is hardly problematic in itself.

        •  Yes.  They had absolutely no inkling this might happen.  Really, all we can ever accuse them of is an utter lack of cynicism and political savvy. 

          •  Completely on board with your concerns regarding the policy outcomes that are in play here.

            But not at all on board with your concerns about the CPC method (to their madness)….they followed a known, well understood provision of what Geddes indicates is a pretty well written law (I concur, but am admittedly far from an expert) in order to achieve a policy objective, which should be the right of a government.

            Not sure what options the BC government had in relation to their desire to achieve their policy objective, but going to court?  Maybe it was BCs only option other than comply, but CPC is not to blame for that.

          • At this point, I’m giving my position a rethink.  There’s the possibility I’ve let my aversion to governments using courts become too much a default or kneejerk reaction on my part.  When I find myself at interpretive odds with not only Olaf, but you, there’s a better than average chance I’m wrong (okay, that’s always the case, but you get my drift…)

            I will say my general allergy to using the courts (or attempting moves that will obviously result in court actions) has nothing to do with my desired outcome.  I favour approaches that stress the hard work of negotiation and consensus. Over the years, I’ve become much more of a “means” guy than an “ends” guy.  (Not suggesting you or Olaf aren’t either).  In the grand arc of history, I think our greatest inheritances are almost always honourable and just frameworks and practices, and less often particular outcomes.

          • I actually don’t have a preference between “means” or “ends” – on any given occasion I might get bent out of shape by either at the expense of the other.

            I think that what I do try to do is at least be aware of both, and understand that – regarding any particular issue – others may make the opposite choice.

            And I recognize that there are some purists out there, and my sense is that quite a few purists are strongly “means” over “ends” folks; I’m OK with that, but I’m not one of them! ;-)

            Btw both of your replies are visible in my dashboard, but not in the main comment page….Disqus problem or unknown to me feature?

    •  Well, the issue is whether it’s a criminal law issue (leaving it to the feds, who would like to close it) or a health-care issue (leaving it to the province, who would like to keep it open). The province argues of course that it’s the jurisdiction of health care and has nothing to do with criminal law. Since they’re not providing the drugs as Keith points out, I think the stronger argument is that it’s provincial jurisdiction and feds have no authority to close it. 

      Either way, I don’t understand why the judges are discussing the finer points of policy here as they have a legal question to answer–whether it works or not is not their concern. In any case, the program does work, very well, and I very much hope it stays open. Lives definitely hang in the balance of this decision.

      •  Either way, I don’t understand why the judges are discussing the finer
        points of policy here as they have a legal question to answer–whether
        it works or not is not their concern.

        Unfortunately, it is. Much of the s.7  (not to mention s.1, if it got there) analysis is around how effective the government’s policy is at achieving its objective.

    • In terms of whose authority it is that could easily be but it may not be constitutional even so because of the security of person clause. There’s already been a pretty similar ruling that said preventing private clinics from operating would be unconstitutional if the government failed to provide adequate public health care. I wonder if that can apply in this specific case or if would have to be in a new lawsuit?

    • In terms of whose authority it is that could easily be but it may not be constitutional even so because of the security of person clause. There’s already been a pretty similar ruling that said preventing private clinics from operating would be unconstitutional if the government failed to provide adequate public health care. I wonder if that can apply in this specific case or if would have to be in a new lawsuit?

  2. Unfortunately, not so simple as that.
     
    A provincial government cannot set up an organization that deliberately, indeed the raison d’etre of which, is to flout the law.
     
    And the province recognizes that. If that was all it was about, then they wouldn’t need the federal government’s permission by way of Drug Act exemption. The case is about the power of the government to grant that exemption or the province to force the federal government to give it when it is applied to matters of provincial jurisdiction.
     

  3. I vaguely recall a day when conservatives valued pragmatism and eschewed ideology…good times those were.

  4. It is unfortunate that we can’t make a decision whether to keep this open based on whether it is effective or not. As happens all too often, the issue is not the issue but whether the issue falls under federal or provincial jurisdiction. I also agree with a commenter below questioning why the Tories of all people want to bring the brunt of the federal government on to this, given their supposed penchant for decentralized decision making and their preference that important decisions be made in Parliament, not the courts.

  5. The case is about the power of the government to grant that exemption or the province to force the federal government to give it when it is applied to matters of provincial jurisdiction.
    While I loathe Harper’s ideology before science, results, harm reduction, health etc. And think InSite is a great example of finding solutions to difficult endemic problems by thinking differently. I still can’t help but think of the risks and monumental change associated with a decision in favour of the province here.
    The Constitution is crystal clear. The Criminal Code – and this is a drug offence under the drug legislation that applies – is entirely within the jurisdiction of the federal government. The Constitution also makes it crystal clear that the federal jurisdiction has paramountcy. This is the MacDonald vision and the Trudeau vision of federalism in Canada: a strong federal government.
    We are already the most decentralized country on earth (the Swiss arguably an exception). Through successive weak federal governments chasing votes and successive strong/vocal provincial governments from the mid-1980s on and most especially now (in both federal government and opposition), the strength of the federal government and MacDonald’s (the “founders” if you will) Canada has been continuously eroding. A loss for the federal government here would be a big blow. Even if we would like the short term result.
    Harper wins either way here. If the Supreme Court upholds the Constitution, he gets to continue on with his insane campaign against science and InSite is no more. If the Supremes tip the balance to provinces over the federal government, and erase over a hundred years of history, then InSite survives, but Harpe still gets his weaker federal government.
    The only real and good solution is not to be found in the courts but in the next election. Any party courageous enough and strong enough with enough leadership to stand up for health, science and the federal government?  

    • Harper doesn’t just get a “weakened federal government” if the court rules against the feds; he also gets a free pass to rail against activist, liberal judges, etc. 

  6. ““And it worked,” interjected Chief Justice ….”

    As someone who doesn’t like judicial activism, it did not help my blood pressure when I read CJ editorializing before case is finished. Couldn’t Chief Justice at least pretend she doesn’t have an agenda and is letting facts and arguments decide her opinion. 

    I wonder if CJ has ever been to lower east side, I think anyone who has been there will be astonished to learn that government policy is working as planned. What exactly is government trying to achieve other than giving warm beds and tea to junkies?

    Vancouver crime rates high, well above national averages, why is victims suffering, economic costs of crime …. etc. never factored into discussion on how permissive attitude of government and ‘science’ and where it leads society.

    • Give me a break. This kind of interjection is entirely routine. Appeal judges do it all the time to test the strength of an argument a lawyer is trying to present and her interjection was entirely appropriate to the argument being put before her. To say that the Chief Justice of all people is showcasing a bias that will govern her decision over her opinion of the law is a strong reflection of the knowledge and perhaps intelligence of the critic, not her abilities.

    • Bev McLaughlin is a BC native and sat on the BC Court of Appeal (which is located in downtown Vancouver) before she got appointed to the SCC.  So believe me, she’s well aware of what the downtown East side is all about. 

      • Sorry OrsonBean …. I know where McLaughlin is from … it was more me muttering to myself than any sound argument I was trying to make. 

        Ever since McLaughlin appointed mass-murderer to Order of Canada a few years ago, I lose all sense and reason when it comes to Chief Justice. However, I am comforted by fact that I know CJ will burn in hell, come back as hungry ghost or Yama will not be kind to her in next life. 

      •  McLachlin was born in Pincher Creek, Alberta, though maybe she lives in BC now.

  7. Can’t quite get the hang of this new comments system. Why does Mclean’s seem to always try to solve technological problems by going more cumbersome and less user friendly? I try to post a reply, it shows up as a comment or just says “just a moment”, a moment that last forever. I try to edit and it doesn’t do anything when I hit “save”. Maybe better to just focus on work and not comment at all.

    • .
      Really! Sometimes it formats, sometimes it doesn’t. Previously I would sign-in as DanR, then the next day it’s come up with an alternate sign-in—as here— which I rarely used on MacLeans (usually it was for computer sites). It collapses paragraphs (sometimes), and I have to go in an edit the paragraphs back in, sometimes wondering if I should add HTML line-tags, or whether that might make a worse mess than what I started with. 
       
      I hit post, and nothing happens. If I hit it again, will it double-post? Hasn’t happened yet, but you wonder.Add that to the decision of making some intelligent rejoinder to some brain-damaged reply to something I previously said, and it’s ‘no, life is too short already’. 
       
      So, yeah, MacLeans. Isn’t life hard enough already for us poor commenters? 
       .

      [Edit: yes, it happened again. I had to put the paragraphs back. Hope it sticks this time.]

  8. I wish this case was about what is best for people in our society who are sick and suffering. The social benefit case has been overwhelming made (reduced death and spread of disease, increased treatment of addiction), I think the economic case (long-term medical treatment of disease versus disease prevention) has been made, the crime reduction case has been made, it has the general support of the community and the province…

    The only hurdle is the federal government wanting to assert itself in a successful trial that counters their ideology. The jurisdictional issue is but a tool at their disposal.

    • Unfortunately, that’s the way the law works.  There are all kinds of areas of the law — not just constitutional law, but also administrative and corporate law, for example — which carve out areas that are under someone’s jurisdiction or discretion, and which thus allow a person, a decision-maker or a level of government to make a decision which may be questionable on the merits, but is nonetheless legally legitimate.  The business judgement rule in corporate law is an example of this, and there is tons of case law under administrative law which gives administrative tirbuanals huge discretion to make decisions which can only be overturned in exceptional circumstances.  Many legal scholars would reply to you by saying that if what the government is doing is constitutionally valid but you don’t like it, your legitimate avenue of redress is to vote the government out.

      • Many legal scholars would reply to you by saying that if what the
        government is doing is constitutionally valid but you don’t like it,
        your legitimate avenue of redress is to vote the government out

        I hate it when legal scholars make me rely on democracy – that sounds hard.

        Citizens: “Please, oh learned souls of the court and legal academy, can’t you make this difficult decision on my behalf?”

        Justice Hercules Dworkin: “Fear not, meek, incompetent citizens, the decision has already been made.  Enjoy your beer, cheetos and hockey game and rest easy”

        Citizens: “Huzzah!”

        • Your post reminds me of the stuff that former U of T constitutional law prof David Beatty used to argue (Beatty was notably left-of-centre and, not surprisingly, a big fan of Charter-based judicial activism).  Those who took issue with Beatty’s approach noted that, taken to its logical endpoint, Beatty seemed to be arguing that we were better off being governed by a panel of “enlightened despots” than these grubby politicians.  Of course that’s all fine and good as long as the enlightened despots are on your ideological home team . . .

          • Yea, the left-leaning professors had a field day in the 80s and 90s, when most of the decisions went in their ideological direction; every time the court assumed more power, they cheered louder.  Then things started to shift in another direction, with cases like Chaouilli, where their arguments were taken to their logical conclusions and used against them.  Chaouilli precipitated an existential crisis in the legal establishment, not because it wasn’t analytically consistent with prior decisions, but rather because it was, and yet came to a conclusion that those on the right would cheer.  

            The law schools, clerks and justices have been erecting the analytical foundations for a resurgent Lochner era for the past 20 years, and therefore have a great deal of difficulty dealing with exercises of judicial discretion that don’t support their political viewpoints, because there’s no principled reason to oppose them other than the decisions don’t support their political viewpoints, which isn’t a legal argument.  I think there is only one serious legal scholar in Canada (Grant Huscroft) who consistently rails against the direction our court is going (there are a number of political scientists, however) – most others are foursquare behind the court, until it makes a right-leaning decision, at which point they feel confused and betrayed.

          •  Of course they are on our/your ideological home team. They are enlightened!

      • Bah. Those legal scholars would share the same lack of nuance as my idealism.

  9. Incidentally, for those judicial-activism-phobes and philes out there,  two seats on the Court just opened up for the taking.  Good thing we don’t have any ugly, overtly-political, crude, US-style confirmation hearings in Canada.  This way, Harper can single-handedly appoint completely unbiased and apolitical judges on a whim without any meaningful scrutiny whatsoever.  That’s a relief.

    • Yes, another good promise from pre-2006 Harperland that got broken with nary a mention from the media. I really kinda like pre-2006 Harper. Especially in retrospection.

    • The amazing thing about our selection process for SCC judges is how good our SCC judges tend to be.  I agree the system for selection has very little public input, yet the quality of judges tends to be excellent, and I would argue, we haven’t gotten as many of the obvious duds that the Americans have sometimes gotten via their process.  Another thing, for which I have no real explanation, is that the ideological leanings and biases of the USSC judges tend to be much more obvious and stark, especially on the right side of the spectrum (e.g., Antonin Scalia, “Machine Gun Sammy” Alito, Clarence Thomas).  It’s like our system works in spite of itself.

      • I would largely agree.  The batch in the 80s and 90s were particularly good.  Or rather, their decision making process (often with three or more opinions in each ruling) led to each judgment being internally coherent (although starkly differing), if you accepted their stated premises.  Now, with Big Mac’s focus on ‘consensus’ and ‘pragmatism’ above all, the Court has begun to deliver more and more logically inconsistent and inherently unsupportable rulings, from a legal perspective at least.  But most of those rulings, in their result, are perfectly reasonable as political compromises, and generally in line with the public sentiment.  The question is, isn’t it Parliament’s job to make political compromises in line with public sentiment?

        •  “has begun to deliver more and more logically inconsistent and inherently unsupportable rulings, from a legal perspective at least.”

          Like what?

          • You want me to list them all?  Off the top of my head, they’ve devastated the freedom of association doctrine (Dunmore and Fraser), made a hash out of evidence law (Singh and Oickle), made discrimination law incomprehensible (McGill and Kapp), and written utter nonsense on corporate law (Peoples and BCE).  In my opinion, the court in the 80s and 90s was fun because they’d all have very different viewpoints that, if you accepted the premises of their arguments, their decisions were more often than not logical and consistent.  You could choose between swimming in the water or walking on land, and debate whether one or the other was preferable.  Now, they all agree that it’s better to wallow in the mud. 

          • Thanks. It wasn’t a challenge to your premise, just curious about what you thought was doing that. McLachlin though, don’t forget, was responding to a longstanding criticism that with so many judgements, what the actual ruling of the law was difficult to determine. Good ultimate decisions with lessened ability to apply practically going forward. Great for academics, in other words; not so great if you are trying to figure out how to live and work in compliance with the law.

          • Yea, for sure.  As I said elsewhere, this court is quite politically saavy, and generally make very pragmatic, reasonable rulings, often resulting in compromises that are at least palatable to all parties involved – in other words, they tend to make decisions many Canadians wish their politicians had made in the first place.  I think it has been this desire to effectively govern that has been the driving force during the McLachlin era, and also the source of the logical and legal incoherence of many of their decisions.

            So it’s often a trade off – good results or good reasons.  I think many Canadians would happily pick the former, and the Court has been great in that respect.  Also, I don’t mean to denigrate the Court – they have a nearly impossible job, and they do it competently and compassionately.  If you ever wanted to make a strong argument for a group of Philosopher Kings and Queens, I think the Canadian Supreme Court would be a useful model.   Beyond my criticisms above, my disagreements with them are often that their decisions clash with my own political views (which I realize very few Canadians share).

          •  Gotcha. I would say though that it is not so much good results or good reasons that McLachlin has been obsessed about but clear results and clear reasons.

          • Agree to disagree, then.

          •  my disagreements with them are often that their decisions clash with my own political views (which I realize very few Canadians share). 

            Out of curiosity, is there some link I could click that might provide a helpful summary of your political views?

          • Most of my political positions are pulled almost verbatim from an obscure treatise called “Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil”.  You might be able to find it in a local library.

            But no, I’m pretty moderate, and if I had an overriding ideology it would be to err on the side of personal responsibility and individual freedom.  As I’m not terribly ideological beyond that, it’s kind of a case by case thing for me.