The Insite ruling

Our round-up of coverage of the Supreme Court’s decision in favour of the safe injection site

Brian Howell/Maclean's

(This post last updated at 7:46pm)

The Supreme Court’s ruling on the Insite safe injection facility—a unanimous ruling in the facility’s favour—is here.

 The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision, but for the trial judge’s interim order, would have been to prevent injection drug users from accessing the health services offered by Insite, threatening the health and indeed the lives of the potential clients.  The Minister’s decision 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, undermining the very purposes of the CDSA, which include public health and safety.  It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.

Early reads from the Globe, Canadian PressPostmediaStar and CBC.

10:33am. Libby Davies, whose riding includes the Insite facility, applauds. Three years ago she lectured Tony Clement and called on him to abandon the government’s appeal.

10:46am. Liberal health critic Hedy Fry applauds.

10:51am. The Canadian Public Health Association applauds.

11:37am. Ms. Davies raised the court’s decision in QP just now, provoking a response from Health Minister Leona Aglukkaq.

Ms. Davies. Today the Supreme Court of Canada unanimously ruled in favour of Insite … The Supreme Court found that this government arbitrarily infringed on the rights of individuals to receive the treatment and help they so desperately need. Now this government has an opportunity here to take off their ideological blinders and support a vital public service that has saved lives and given people hope. Will they do that?

Ms. Aglukkaq. Thank you, Mr. Speaker. Although we are disappointed with the Supreme Court of Canada’s decision today, we will comply. We believe that the system should be focused on preventing people from becoming drug addicts. A key pillar of the national anti-drug strategy is prevention and treatment for those with drug dependency. As part of our strategy, we have made significant investments to strengthen existing treatment efforts through the treatment action plan. We will be reviewing the court’s decision. Thank you, Mr. Speaker.

Ms. Davies. That’s precisely what Insite does. Since it opened in 2003 in my riding, fatal overdoses have dropped by over a third. More people get treatment as Insite is there to connect people with the services they need. Today the people who use this service have had their voices heard. The Supreme Court agrees. Health professionals agree. International health experts agree. Will the Conservatives admit their failed approach and acknowledge that Insite protects public health and saves lives. Will they stop being the barrier to this very important service?

Ms. Aglukkaq. Thank you, Mr. Speaker. Mr. Speaker, as I stated earlier, our government believes that spending more money on treatment and to help people get off drugs is the best investments we can make. As I said earlier, as well, we’ll be reviewing the decision. In fairness, the decision was made two hours ago. And I stated that we will be reviewing it and we will be reviewing it. Thank you.

12:09pm. The Canadian Medical Association applauds the Supreme Court’s decision.

12:30pm. In Kirk Makin’s analysis, this opens the door to similar facilities in other cities.

Montreal may soon follow Vancouver’s lead in setting up a supervised injection site. Jean-François Mary of Cactus Montreal, a community group that has been pressing to operate supervised injection sites for years, says today’s ruling removes the group’s last remaining obstacle.

“The scientific merit was proven long ago, there was only the question of the legality,” Mr. Mary said in an interview. “This decision brings us a big step forward – a Supreme Court ruling we can rely on.” He says police and municipal officials in Montreal were unwilling to back the idea of supervised sites without a legal opinion – something that changes now. “If we couldn’t prove the legality, we couldn’t get their support.”

12:57pm. Our Ken MacQueen reports from Vancouver.

1:34pm. Paul Wells considers the ruling’s meaning for the Harper government.

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 Justice 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.

2:35pm. Cactus Montréal, the Canadian HIV/AIDS Legal Network and Harm Reduction International have released a joint statement welcoming the Supreme Court’s decision. That release includes the following in bold.

In light of today’s Supreme Court decision, jurisdictions Canada-wide should act fearlessly on evidence and make harm reduction services modelled on Insite available to those in need in their locales. The Minister of Health must respect the Court’s decision and grant similar exemptions to other sites so that people across Canada will be able to access the public health services they desperately need.

3:42pm. Emmett MacFarlane considers the Court’s message and the ruling’s ramifications.

The ruling stands as a razor-sharp rebuke of the federal government’s rather fragile position, at least as in terms of the insurmountable evidence that Insite averts deaths from overdose, helps prevent the spread of disease, and facilitates treatment and recovery. The Court’s decision also stands as a potential landmark in Canadian constitutional law, having considerable implications for the obligations the Charter increasingly imposes on government.

4:22pm. The Registered Nurses’ Association of Ontario applauds.

4:40pm. Ottawa’s mayor and police chief say they don’t support establishing a safe injection facility in the city.

“I do not support locating a safe injection site in Ottawa, and was very clear about that in the last election,” Mayor Jim Watson said in a statement released by his office. And in an interview with the Citizen, police chief Vern White agreed, saying such a facility would have “an extreme negative impact” on nearby residents.

5:05pm. Vancouver Mayor Gregor Robertson comments on the ruling.

“Addiction is a health issue, not a criminal issue. Research, and now the law, confirms our position that safe injection sites such as InSite perform an important health care role in the lives of people living with chronic addiction-related problems. Insite connects people to detox treatment services, counselling and medical help, while saving lives, reducing overdoses and reducing HIV and other infections.”

7:46pm. An embassy cable shows the U.S. government opposed Insite. Elizabeth Payne talks to Dr. Mark Tyndall, who would like to establish a facility in Ottawa. The Prime Minister is disappointed.

“We’re disappointed, we have a different policy,” Harper told reporters in Quebec City. “We’ll take a look at the decision, but we will clearly act in respect and within the constraints of the decision.” Harper said it is “premature” to speculate on the possibility of other cities establishing supervised injection site. “Obviously, it is going to lead to some changes in federal policy in order to respect the decision. 

“The preference of this government in dealing with drug crime is obviously to prosecute those who sell drugs and create drug addiction in our population and in our youth. And when it comes to treating drug addiction, to try and do so though programs of prevention and treatment, rather than through the issues that were in front of this court in terms of so-called harm reduction.”

The Insite ruling

  1. Yay Supremes!

  2. What a great victory for people who actually work on the streets, who care about the overwhelming issues created because of social determinants that can be cruel, and who work with addicts as best they can.  A hair’s breath from locking people with addictions away because lesser men can’t deal with it, this should keep common sense and best practices (oh there’s that sneaky evidence again) at the forefront of decision making when it comes to social, justice, health and community policy in this  compassionate country.

  3. Remember: it’s OK to feel uncomfortable with things you haven’t learned about yet, and the appropriate response is to learn more. In this case, the things you will learn are that InSite had positive outcomes for drug users and the local area, and did not increase crime or drug use, and that it is used successfully in other parts of the world too. Facts and evidence are helpful here. Anecdotes and emotion, less so.

  4. Well, a lot could be said, but the applause of Libby Davies and Heddy Fry is certainly sufficient to establish the “merits” of this latest befuddled example of judicial muscle-flexing.  The SCC having proclaimed that, once they’ve exercised their discretion to temporarily exempt something from the application of the criminal law, the feds can never reconsider that discretion, I suspect the feds will be now be loathe to similarly exercise their discretion in the future.  It is certainly high time to seriously consider invoking the “notwithstanding clause” to end such blatant judicial power grabbing once and for all.

    • Maybe if drug policy hadn’t been conducted in a completely idiotic and arbitrary fashion for decades, the SCC woudn’t have had to rule on this in the first place.  Ever think of that?

      • Ever think that, idiotic and arbitary as you consider it to have been for decades, drug policy is properly within the realm of democratically elected governments, not unaccountable judges with their own ideological axes to grind?

        Didn’t think so.

        • Democratically elected governments are what created the Charter. And they democratically agreed that it should supersede other laws.

          • Then democratically elected governments should now restore the proper balance, intended from the outset, between the elected branch and judicial branch and start invoking the “notwithstanding clause” and appointing judges – starting with the two upcoming SCC vacancies – who understand and agree the balance needs to be restored.

          • Might I suggest that your understanding of what is the “proper” balance is completely subjective, and certainly doesn’t match my own.

          • Then democratically elected governments should now restore the proper balance.

            Which democratically elected governments?  The democratically elected government of B.C. was FIGHTING the feds in Ottawa on this one.  The SCOC didn’t so much overrule the federal government as rule that in this case the jurisdiction of the democratically elected provincial government  over health care policy supersedes the jurisdiction of the democratically elected federal government over crime policy.

            Either way they ruled on this case the Supremes were going to be ruling against a democratically elected government.  I for one am pleased that they decided to side with the  life-saving, crime-reducing, cost-reducing program supported by the local community, the local government, the local police force and the provincial government over a bunch of federal interventionist busy-bodies in Ottawa with an over inflated sense of moral superiority.

          • I’m with LKO on this one.  It’s interesting that the only democratically elected government that you see as having a role in this drama is the federal one.  I would add to LKO’s comment that the City of Vancouver, which is also a democractically elected government, also supported Insite.  So that’s 2 democratically elected governments in favour of Insite, 1 against.

        • The democratically elected governments of the municipality and the province want to keep Insite open, as does the local community and the local police force.  The question was, which jurisdiction’s power trumps the other?  The province is not a creature of the federal government, it is it’s own sovereign government.  If a federal crime policy is interfering with a provincial health policy which elected government’s policy wins?

          As far as I’m concerned all the unelected judges on the Supreme Court decided (UNANIMOUSLY) was that if a province creates a health care initiative that has been shown by peer-reviewed research to save lives, help get addicts off drugs, lower the public use of illegal drugs, lower health care costs and reduce crime, the federal government can’t use their jurisdiction over criminal matters to interfere with the province’s jurisdiction over health matters.  Seems fair enough to me.

          Frankly, I’m shocked and disappointed that any federal government would attempt to shut down a life-saving, addict-curing, crime-reducing, money-saving program out of some misguided sense of moral superiority, but thankfully our Supreme Court justices have common sense and sided with the elected government of British Columbia and the people who live in Vancouver over the suddenly interventionist feds in Ottawa.

          • “Frankly, I’m shocked and disappointed that any federal government would attempt to shut down a life-saving, addict-curing, crime-reducing, money-saving program out of some misguided sense of moral superiority, but thankfully our Supreme Court justices have common sense”

            You may or may not be surprised that I don’t really have an issue with Insite and do not deny it accomplishes “good” (although I tend to think “good” is being understandably, but nonetheless too narrowly defined in the case of Insite).  My axe to grind is the further usurpation by appellate courts of policy matters that I strongly believe should be remain within the realm of the elected branch of governments.

            You raise a valid point that the SCC sided with one of these elected branches in rendering their decision.  What abrogates that point, IMO, is that the SCC sided with the elected branch that was inviting it to overrule a discretionary decision made by the other elected branch.  Put another way, the same usurpation of (what I maintain should be) government policy resulting from the SCC’s decision wouldn’t have happened had the SCC sided with the feds and not BC. 

          • Either way,an elected government was going to lose to – or to use your words, be usurped by – another. In this instance, try thinking of the SCC as the referee or the tie-breaking vote.

          • There’s always going to be a winner and loser when different levels of govt. face off in constitutional litigation.  My point is that the SCC decided this particular constitutional litigation in a way that results in (what I maintain to be) an unwarranted usurpation of federal powers.  Had they decided in favour of the feds, there likely wouldn’t have been a judicial encroachment on provincial powers.

          • How would you suggest disputes between levels of government be settled?  If not the courts – what?

        • As noted above – the Court considered the drug policy approved by the Legislative branch of government compelled the Executive branch of governement to make a decision consistent with the goals of ‘public health and safety’ in the Controlled Drugs and Substances Act.

          ‘Discretion’ as it applies to government decisions isn’t a carte blanche to make (or refuse to make) any decision you like. Government’s are bound to exercise their discretion in a manner that’s consistent with the constitution and policies approved by Parliament.

          • ‘Discretion’ as it applies to government decisions isn’t a carte blanche to make (or refuse to make) any decision you like. Government’s are bound to exercise their discretion in a manner that’s consistent with the constitution and policies approved by Parliament.

            Agreed, but you’re missing the point – in the case of Insite,  the “discretion” that was to be “exercise(d)… in a manner that…(was)….consistent with the constitution” was the original decision to TEMPORARILY not enforce certain criminal laws.  In other words, no one was seriously challenging the original decision as somehow offending the constitution and/or policies approved by Parliament.    Effectively, what the SCC has done is force the govt to make what was always understood to be a temporary measure permanent.  

          • Very narrowly, but yes, that’s more or less what they have done. It gets to stay open until such time as circumstances change such as to warrant its closure. Basically, the court has said that ideology does not trump evidence, and that having allowed a program that has proven to be literally life-saving, they need a stronger argument than uniform enforcement of the law to close it down. But that dosn’t mean others canopen; the minister still has discretion to refuse similar exemptions for new clinics.

            Wells gives a very good analysis of just how restrictive this decision is; if you haven’t already done so, I recommend you have a read. It might dampen your flames to embers.

          • I did read the Wells piece (see my post below) and it does do a very nice job of summarizing the implications.  My flames, however, are not dampened because they are fueled by far more than just this latest example of the courts using the Charter as a pretense for usurping government’s role in shaping social policy.

            As for evidence trumping ideology, why should it?  Evidence is ALWAY going to show (or, more concisely, can always be made to show) that treatment programs produce positive results – is this sufficient, in your view, to allow a court to override the government’s discretion as to whether they fund the program or not?  Do you not see this line of thinking as a slippery slope, whereby anyone wishing to force the government to support their pet “treatment” will be able to go running off to court to do so?

          • The Court addressed the question of whether there had been an exercise of discretion starting at paragraph 119 of the decision, under the heading: ‘has the minister made a decision?’

            The Court notes at paragraph 122: “The then federal Minister of Health, Tony Clement, spoke to the Standing Committee on Health on May 29, 2008. He had at that point received the report of the Expert Advisory Committee, a formal application for a continued exemption, and a statement of support for Insite from the provincial Minister of Health.” (emphasis mine)

            Unsurprisingly, they go on to find that there was a fresh exercise of discretion, which culminated in a decision to deny the application. Again, the Minister was required to make a decision consistent with the Charter and the goals of the CDSA.

            As has been pointed out repeatedly, here and elsewhere, the Court was at great pains to limit the decision to the circumstances of this application and lay out some of the grounds under which such an exemption could be refused.

          • “As has been pointed out repeatedly, here and elsewhere, the Court was at great pains to limit the decision to the circumstances of this application and lay out some of the grounds under which such an exemption could be refused.”

            I’m sure the Court WAS at great pains to figure out a way to sell their latest power grab for social policy.  The encroachment by the courts into that realm has tended to occur incrementally, and this decision is no exception.

    • Dude, do you dislike all progressives, or just the female ones?  Here and on other threads, you seem like quite the misogyist.  Whassamatta: Mummy wouldn’t breastfeed?

      • Don’t dislike any of em, just their garbled and misguided ideas that threaten to doom us all.  Rest easy, though – you seem incapable of having any whatsoever.  Given your skill in internet-based remote personality assessment, I’m glad you’re fixed upon my misogynistic leanings and breastfeeding issues, and not my darker side.

    • So you know more about this than a doctor who has years of experience treating addicted patients in the DES and an MP who has represented the the area for years?  Really?

      • “So you know more about this than a doctor who has years of experience treating addicted patients in the DES and an MP who has represented the the area for years?  Really?”

        If by “this” you mean constitutional jurisprudence, then I’m reasonably confident  the answer is “yes, really”.

  5. Attn: The Right Honourable Tony Clement
    Regarding: Your Legacy

    Mr. Clement:

    This might be a good time to consider a career in municipal politics. Or picnic shelter construction.

    Regards,

    The Public.

    • You’d really wish Tony upon some poor unsuspecting municipality? The only good thing about that idea is the smaller area of  fallout. He already has done enough damage in provincial and now federal politics; time for him to get out.

  6. At least someone in the capital is standing up for provincial rights instead of cramming the Ottawa knows best attitutde down the country’s throat .  Even if it is unelected judges.
    .

  7. I’m a supporter of Insite, but I read the ruling and what (I think) the SCOC says is that the Minister made a decision without weighing proper evidence (true!) and that constitutes a breech of natural justice which therefore violates the Charter.

    They did NOT uphold provincial jurisdiction, or say the govt can’t make an evidence-based decision to use the criminal law to close a facility such as Insite.

    That’s how I read it. And since the Harperites don’t usually follow court rulings they don’t like, I don’t think this is over.

    • I would add that I think the Ministers statement in QP just posted (“And I stated that we will be reviewing it and we will be reviewing it.”) makes it clear this isn’t over for the govt.

       

    • Oh it’s over.  The Harperites don’t want to be forced into using evidence to make decisions.  If they start down that road, it undercuts most of their platform.

      • Dunno. I recall the feds position was they had jurisdiction and a constitutional right to apply criminal law to Insite, so we don’t need no stinckin’ evidence.

        The SCOC upheld both views, but said they need actual evidence to make their harassment of Insite constitutional.

        I can see the feds now coming up with BS “evidence”, withdrawing the exemption on that basis, and then resuming more years and years of litigation.

        Why? Ideology, this is probably a good fundraiser for them with their base of angry haters, and by the time this matter works next its way to the SCOC, they’ll have appointed conservative-minded judges.  

        • I believe you mean MORE conservative minded judges.

          Two of the judges who ruled against the feds on this were appointed by Harper.

          Also, with talk of sites similar to Insite in Montreal and Toronto, if I were the feds I’d at least consider whether or not, having just lost my prolonged battle against the government of British Columbia on this file I want to consider starting another fight that I might have to wage against the government of B.C., the government of Quebec and the government of Ontario.

          If I were the feds, having just lost a long fight in an attempt to shut down a life-saving, crime-reducing, money-saving initiative that was supported by the local community, the municipal government, the local police and the provincial government, I might be a bit wary of re-starting the same fight, only this time possibly on multiple fronts.

          • If I were the feds, I’d be sensible too.

            I’m not the feds, though, and I have yet to see the Harperites actually accept and submit to any court ruling they didn’t like. They always fight back.

            But we shall see. I hope you’re right, since I favour harm reduction approaches.

          • OG, I think you raise some excellent points.  Usually the SCC makes its decisions on as narrow and specific grounds as possible, and it looks like that’s what they did here.  They didn’t cut the legs out from the feds’ power to make criminal laws relating to drugs.  I too favour Insite, but you’re correct that if the Harper Government really wanted to push this, they could take another run at Insite, on that evidentiary point that you mentioned.

          • “If I were the feds, having just lost a long fight in an attempt to shut down a life-saving, crime-reducing, money-saving initiative that was supported by the local community, the municipal government, the local police and the provincial government, I might be a bit wary of re-starting the same fight, only this time possibly on multiple fronts.”

            Your postings make it clear you applaud the ruling, irrespective of whatever constitutional mischief it represents.  Given that future Insites in Montreal and Toronto will require the same exemption from the application of federal drug and criminal laws as was temporarily granted Vancouver Insite, why wouldn’t feds, in light of this decision, just say “no more exemptions”?  And if your answer is “the SCC will just order them to grant similar exemptions in Montreal and Toronto”, would you also concede that, in that event, the usurpation by the courts of drug policy in this country would effectively be complete?

            Postscript:

            What Wells said:

            http://www2.macleans.ca/2011/09/30/insite-the-harper-governments-sweeping-narrow-defeat/

    • Don’t forget John Baird’s business cards. I’m so glad that’s sucking all the oxygen out of Question Period rather than, say, the economy, health care, child poverty or the recognition of the Palestinian State.

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