27

The power to appoint judges doesn’t mean Harper will get what he wants

On Insite, the cruellest blow against the feds’ case came from one of the PM’s own appointees


 
No home court advantage

Chris Wattie/Reuters

On May 13, Mr. Justice Ian Binnie and Mme. Justice Louise Charron announced they’ll retire from the Supreme Court of Canada this summer. Their replacements will be Stephen Harper’s third and fourth appointments to the top court, but the first two he’ll make as head of a majority government. By the next election, Harper will have named at least five of the court’s nine justices, maybe more.

The day before Binnie and Charron announced their retirements, quite by coincidence I spent half a day attending the top court’s hearings. The Supremes were hearing arguments about Insite, the Vancouver clinic where drug addicts use their street-bought heroin and other substances under medical supervision.

The case illustrated why a prime minister takes a keen interest in his power to appoint judges to the Supreme Court. But it also showed that the power to put a judge on the court isn’t a magic wand. When the final Insite decision comes down, don’t expect much of a rift between Harper’s appointees and the majority who were there before he came along.

Insite opened in 2003. Successive municipal administrations supported the idea, as have successive British Columbian governments. The federal Liberals granted the site an exemption from the Controlled Drugs and Substances Act (CDSA) so drug use that would be illegal outside the clinic could go on inside without fear of punishment. After the Conservatives came to power in 2006, then-health minister Tony Clement granted another exemption so Insite’s effects could receive more study. He and his successor, Leona Aglukkaq, have balked at providing a third extension.

Twice, lower courts said the evidence shows Insite reduces the risk to addicts’ lives while they are trapped in addiction, so the feds had no right to refuse more extensions. The Harper government appealed those rulings, which is how it wound up here.

Robert Frater, a crackerjack litigator for the federal Justice Department, was up first. His main argument was that provincial jurisdiction over health care must not trump federal jurisdiction over criminal justice—that Ottawa wants the option of arresting drug users even where B.C. wants to treat them. But first he tried to argue that Clement and Aglukkaq never actually made a decision on whether to extend the CDSA exemption. It’s been tied up in the courts, so they’ve held off on making that call, he said.

That didn’t go over well with Madame Justice Rosalie Abella. “A failure to actually make a decision—in response to a request—is still a decision,” she said. “There is a failure to extend. That’s on the table. There’s no dispute about the fact that there has been a failure to extend. Because there’s no extension.”

Frater retreated to his main point. If Ottawa grants the provinces a little say over the use of illegal drugs, who knows where it might end, he asked. “Could they also have the power to ensure that the drugs that are injected are not adulterated street drugs? Or to ensure whether the health professionals could perform the injection themselves?”

This time it was Chief Justice Beverley McLachlin who cut Frater off. “Don’t you think we should stick with the facts here? I mean, these are hypotheticals.”

Another federal lawyer, Paul Riley, took Frater’s place. All Ottawa wants to do is forbid “one component” of the so-called “harm reduction” approach to drug policy: clean, well-lit rooms where addicts can smoke or shoot up in the presence of medical professionals. “The CDSA does not prohibit treatment of addiction. It does not prohibit providing health care to addicts,” Riley said. “It doesn’t prevent needle exchange, for example.”

Now it was Binnie’s turn to push back. “But the one component is critical to the exercise. This is the component that saves lives.”

Riley tried another tack. Why had the feds, including federal Conservatives, granted extensions already? Merely as a sort of experiment, he said. “To permit a scientific study of the nature of that program, as a question of policy.”

McLachlin cut in. “And it worked.”

Mr. Justice Louis LeBel, so soft-spoken he was hard to hear in a big room filled with 30 black-robed laywers and about 100 spectators, agreed. “In the end this program somehow, while not being perfect, works,” he said to Riley. “Have you got anything that tends to demonstrate that this program doesn’t work?”

“I think that’s a fair observation, Justice LeBel,” was all Riley could manage.

This was not mere point-scoring. Several justices mentioned Section 7 of the Charter of Rights, which says the government cannot act in a way that restricts Canadians’ “life, liberty and security of the person.” They were asking Frater and Riley to justify shutting down a service that, in Abella’s words, “saves lives.”

But the cruellest blow against the feds’ case came from one of Harper’s own appointees. Thomas Cromwell wondered why the feds are so eager to protect the right to arrest drug users inside Insite when they don’t exercise that right anywhere in the Downtown Eastside. “If the police wanted to arrest people for possession, they could simply do it outside [Insite] on their way to the door,” Cromwell said in a tiny voice. “If you were seriously interested in preventing possession of those substances, all you could do is stand outside the door.”

Here too, Riley had little to say.

Insite’s opponents having exhausted their arguments, the clinic’s advocates took turns addressing the red-robed justices. The B.C. provincial government sent one of its departmental lawyers up, a boyishly handsome man named Craig Jones. He used to be famous.

In 1997, while still a law student, Jones was arrested for hanging signs that said DEMOCRACY, FREE SPEECH and HUMAN RIGHTS over the motorcade route to the APEC summit in Vancouver. It was excellent guerrilla theatre. Jones became the voice and face of the APEC protesters and now here he was defending the B.C. government’s constitutional prerogatives.

Jones would still rather argue broad principle than narrow technicality. He quoted Clement telling a parliamentary committee that money spent on Insite could have gone to some other, in Clement’s eyes better, treatment. “That’s our money,” Jones said on the B.C. government’s behalf. “That’s our spending decision…That’s the core of the provincial interest. Which treatments attract the dollars—the provincial dollars—is our business. Not the federal government’s.”

The justices will deliver judgment some months down the road. It will be one of the last rulings Binnie and Charron will be part of. Over the summer, Harper’s justice minister will consult with Ontario’s attorney general (Binnie and Charron are both from Ontario) and others to come up with a list of candidates to replace them. Five MPs—including a New Democrat and a Liberal—will come up with a list of six potential nominees. Harper and his minister will pick two. A parliamentary committee will quiz them, gently, before Harper’s new majority rubber-stamps the nominations.

“Overall, what you’re looking for is record, experience, judgment, judicial temperament,” Harper said during the federal election campaign. “These people sit on the bench a long time. We will choose very carefully.”

But he cannot choose a justice who would make the Charter of Rights go away. The two he has selected to date, Cromwell and Marshall Rothstein, have not diverged consistently from their colleagues. On this day, neither pursued lines of argument any different from the others. The only way to keep Insite from opening would have been to have a Harper government in place three years earlier, before that first exemption from the drug laws was granted. It’s Parliament, more than the courts, that will shape Canada’s future. Expect Harper to make precisely that point if he loses the Insite case, as he almost certainly will.


 

The power to appoint judges doesn’t mean Harper will get what he wants

  1. It’s almost like the system works, the PM chose well and the judges are ethical and learned.  I love this country.

  2. “If you were seriously interested in preventing possession of those substances, all you could do is stand outside the door.”

    Ooooooo.

    Too bad for Harper that he’s still required to appoint somebody who’s educated.  That pretty much ensures limited support for some of his positions.  Watch for him to pass a law lowering the minimum qualification for a Supreme Court posting to “high school diploma”.

  3. Paul, only you can give a blow by blow account of, and commentary on,a Supremes ruling that had me wishing you had written for The West Wing.  Well don sir.

  4.  The problem with Insite is that the lives it saves are the same lives over and over. So when it says it saved, let’s say 35 lives, some of these are repeat saves. I feel the money should be used to prevent drug addiction, not facilitate it.

    • It’s BC’s prerogative how to spend their money.

      Insite also gives health professionals a chance to build rapport with addicts and help them to get into treatment programs. The goal of Insite isn’t to leave addicts to be users for the rest of their lives. It’s to keep them alive until they manage to kick their habit.

    • You do realize what you’ve said here is that you’d be happier if the drug users died. 

      • I believe that it maybe stated that Insite saves lives that are remaining largely at risk of being repeatedly threatened without real treatment. Until the risk is mitigated, Insite remains at best a quarter measure.

      • No I’m not. All I’m saying is it would be better for people not to use drugs than try to save them once they start. And don’t think I’m unfamiliar with drug addiction. I know from experience.

        •  And since your fantasy doesn’t exist in reality, what is your solution to reality?

  5. ” If Ottawa grants the provinces a little say over the use of illegal drugs, who knows where it might end, he asked. “Could they also have the power to ensure that the drugs that are injected are not adulterated street drugs? Or to ensure whether the health professionals could perform the injection themselves?”This time it was Chief Justice Beverley McLachlin who cut Frater off. “Don’t you think we should stick with the facts here? I mean, these are hypotheticals.”

    Bingo!

     All my life i’ve heard [ haven’t we all?] a variation on this theme from those in authority. “If we allow you to do that everybody will want to – chaos must ensue.” “No you can’t build yourself a temporary shelter out in the backwoods, or drop your anchor there…cuz then everyone’ll want to do it see!”

    When you ask the logical follow up: ” How many other requests have you had in the last year or two for this…”er…actually you’re the first in a wee while…but we did get a similar requst ten years back…so i’m told.” At this point it is best to go look for a padded object to go bang your noggin against.
    Not that THEY aren’t occassionally right. But why look at they facts such as they stand, exercise CS and good judgement, when you can scare people with nameless dreads and hypotheticals.

    SH is as much a child of the charter as i am. And i thank the creator for every day that he is.

    • Agreed.  How many people have demanded the right to marry cows since same sex marriage became legal?  Not many, as far as I’m aware.   

      • That’s only because the cows can’t talk…

    • I agree with you above. Yet only one complaint is enough to overthrow the mandatory census, a proven good. You don’t have to fill out this government form! Who knows where it might end? 
      I only wish this government would articulate, for Canadians, just where it wants to go, so Canadians could know where this is going. 
      Thank goodness there is yet still logic in some of our institutions.

      • Oddly enough i just did the census – short[ manditory] and long[ now voluntary]. Up in the North there’s a real push on to fill out the complete census. One of the enumerators told me they aren’t volunteering the fact that the LF is no longer manidtory…go figure.[ that particular enumerator seemed more confused about the affair then i am.] And still they’re running into problems with stroppy people. It seems it is possible the public has absorbed the message that they don’t have to cooperate, where previously they had just grumbled about the bloody govt and filled it out anyway[ only 20% ever got the LF in any case].
        The situation on the ground here is farcial. Folks feeling they now have permission NOT to play along, and enumberators pretending it’s still manditory – if they can get awy with it.

        It’s simply bloody minded political vandalism from an incompetent idealogically driven govt. Look forward to lots more of it.

      • ” … or drop your anchor there ….. ”

        “You don’t have to fill out this government form! Who knows where it might end? ”

        “It seems it is possible the public has absorbed the message that they don’t have to cooperate … ”

        Here comes tinpot dictator brigade. 

        Demanding the right to drop their yacht’s anchor where ever they want while lashing out at the little people who don’t want to fill out endless amounts of nonsensical forms from Government. 

        Sums up Liberals pretty well – they think of themselves as special class, elevated above the hoi polloi, while everyone else must obey Big Brother because they are ignorant and incapable. 

        I also like kcm2 amazement that people might know the law and want to follow it and don’t appreciate Government bully-boys coming to their house and lying to them.

        • endless amounts of nonsensical forms from Government.

          Aside from the strawman and caricature of your criticism, only you can decide if you want to base decisions on reliable and accurate information, or statistical gobblegook and unproven ‘common sense’.

          Assuming you come from some kind of libertarian and objectivist position, don’t you want to make decisions based on sound, objective reproducible and measurable facts?

    • Doug Rogers – Responding to you but I wanted a bigger window, we are shrinking here.

      1) State coerces people to fill out census forms. Do coerced people produce reliable information or statistical gobblegook?

      2) Have you ever filled out a census form yourself or know people who have? If you filled out census form, were you entirely truthful or were there one or two questions you thought were too personal. 

      I talk to people about census and I would be amazed if more than 10% of census forms contain 100% accurate information. At a dinner party a few weeks ago, a bunch of us were talking about census and not one person there said they had filled out census forms with 100 accuracy. People said entire form was incorrect – another Libertarian friend of mine – others said they indifferent about census and answered most of the questions accurately, the ones that were not too personal, and one left wing women friend of mine said she wrote down answers that she thought were most likely make government offer more programs and policies. 

      People respond in all sorts of unpredictable ways – like herding cats – most of us don’t agree with ourselves from day-to-day.

    • ” …. don’t you want to make decisions based on sound, objective reproducible and measurable facts? ”

      Of course, everyone does, don’t they?  The differences exist because we don’t agree that’s what the census produces. 

      I read article last summer and it is explains why policies based on social sciences, which is what census is really, are entirely hit and miss. People are unpredictable, not possible to craft policies that will make people behave in ways we want them to. Social scientists seem to think of human beings as lab rats to try out their theories on and may, or may not, be causing quite a lot of harm. 

      Census/statistics makes bureaucrats and pols think we understand Canadians better than we actually do. 

      “Another way of putting the problem is that we have no reliable way to measure counterfactuals—that is, to know what would have happened had we not executed some policy—because so many other factors influence the outcome. This seemingly narrow problem is central to our continuing inability to transform social sciences into actual sciences. Unlike physics or biology, the social sciences have not demonstrated the capacity to produce a substantial body of useful, nonobvious, and reliable predictive rules about what they study—that is, human social behavior, including the impact of proposed government programs …… 

      The most fundamental lesson that emerges from such experimentation to date is that our scientific ignorance of the human condition remains profound. Despite confidently asserted empirical analysis, persuasive rhetoric, and claims to expertise, very few social-program interventions can be shown in controlled experiments to create real improvement in outcomes of interest.”Jim Manzi, City-Journal, Summer 2010, What Social Science Does—and Doesn’t—Know

  6. “But he cannot choose a justice who would make the Charter of Rights go away…It’s Parliament, more than the courts, that will shape Canada’s future. Expect Harper to make precisely that point if he loses the Insite case, as he almost certainly will.”

    As is often the case Paul leaves us with a head scratcher or two, part of the fun i guess.

    No he can’t make the charter disappear…but can he “try” and choose judges who may attempt to emphasize and de-emphasize, and quarrel with contextual meaning within the charter. [ it is supposed to be a living instrument] 
    When the charter first came into being there were said to be a number of old school judges who pushed back against it – although Larmer[?] and company eventually won out, no?
    What is to prevent a reassertion of the Parliament knows best school? Which is what puzzles me about Paul’s other point… is he saying this PM will meekly take the courts word for it?I think not… [Or will we see more of this PM’s distain for institutions that challenge his read of how our system ought to work? ] Look for some fireworks ahead. Thank goodness the chief justice has more of a public profile then has previously been the case.

    • If I was the Paul Wells who has written about Rights & Democracy, I would counter this Paul’s headline with “The integrity of Canada’s Supreme Court judges doesn’t mean Harper won’t get what he wants”. I have no doubt that some manner of dirty tricks are on the table as Plan B.

      (Of course, if I was either Paul Wells, I would understand the internal levers of power well enough to talk about how those tricks might be worked, and could therefore write a less glib and more detailed comment than this one I currently offer.)

  7. If saving lives is reason enough to keep Insite then creating government inspected brothels should also be allowed because they save lives too.

    • Exactly. They should get right on with doing that.

    • I wholeheartedly agree.  Legalizing and regulating prostitution would save lives and add to the tax base to boot.  

    • I’m curious as to whether you actually hoped people would agree with your comment, but I agree with your comment nonetheless.

      • San Fransisco had a task force look at prostitution and the results showed what a total waste of money it was to try to enforce the current laws. Common sense needs to prevail instead of outdated wishful thinking.

        • To be fair, we live in a country where we had a thriving sperm donation industry that’s been crushed down to one facility and 35 donors at any given time to service ~5000 interested patients/year by Health Canada’s early 2000’s regulatory insistence that paying for “donations” is wrong and any shortage created by this decision will be resolved when men become altruistic enough to do so for free.

          So, common sense has a long established history of failing to survive contact with health policy once “morality” gets involved.

  8. >The real issue here, in the view of this writer, is the appointment process presently being used to maintain the full complement of Justices on the Supreme Court of Canada and without lapses as is the case now. In order to protect the independence of the court we really have to have a different process for honouring a sitting member of the judiciary in Canada with a seat on the Supreme Court. With the present system, whereby the member is appointed, which in itself is bad enough, by the sitting Prime Minister, which is terrible, we are not lending support to this independence. This is not to say, however, that we have been ill served by our past Justices of the Court nor that the past Prime Ministers have been guilty of anything to weaken the court. As a country we have been well represented by our High Court and, by and large, by most of our Prime Ministers.
    >The Prime Minister, any Prime Minister, should not be appointing members to the Court; the link is too political. The Supreme Court of Canada should be completely independent from the Parliament.
    >While we are on the topic of appropriate means those appointed to the Senate should be there by a method other than appointment, and, when sitting in the Senate they ought to be free of Party affiliations, in the political sense at least. Mr. Trudeau is on the right track with this one.

Sign in to comment.