Insite, foresight, hindsight

The B.C. Court of Appeal’s ruling on Vancouver’s Insite shooting gallery for heroin addicts makes for interesting reading. We are all so busy arguing over the merits of harm reduction, and the wisdom of the Harper government’s attempt to shut down the clinic, that it is easy to forget the big constitutional issue that was the chief concern of the court here. You would think that Canadian jurisprudence had developed a clear objective rule for settling even the trickiest “double aspect” issues, wherein both federal and provincial governments can claim that some crumb falls within their respective spheres of constitutional power.

You would, apparently, be wrong.

Or, at the very least, you might be outvoted two-to-one on a three-judge panel attempting to decide the question. Justice Daphne Smith, writing in dissent, argues that recent Supreme Court “double aspect” caselaw has in fact created a clear objective rule for all but a handful of established special cases. That rule is “Ottawa wins”. The other two justices, however, read the same cases and reach the opposite conclusion: that the subsidiarity principle is alive and well in Canadian federalism. Provinces, they reckon, have the power to resist federal intervention in cases like the Insite dispute, where the matter being addressed by some policy is clearly local and where recognizing federal paramountcy would do more damage to provincial policymaking capacity than upholding the province’s supremacy within its own sphere would do to the tapestry of federal law.

To put it another way, Justices Huddart and Rowles just didn’t think that letting Insite workers supervise jabbing junkies does much harm to criminal law. Letting the federal government stop them would, on the other hand, do a lot to inhibit B.C.’s ability to set health policy.

How is it possible to account for such a head-to-head disagreement on a fundamental constitutional issue? It is baffling that this should still be an open question. I’m not a lawyer, so everything I say here should be taken with an even greater sprinkling of salt grains than usual, but I’m aware that Canadian law has seesawed on this issue over the long run, and that major changes in our constitutional status in 1931 and 1982 had a tendency to reset the discussion.

That the issue still has a political nature, rather than purely a jurisprudential one, is clear from the rulings by both Justice Huddart and Justice Smith. Smith, the “centralizer” on the panel, complains that when the strong norm of federal paramountcy has been in relative abeyance, double-aspect questions have been beset by “difficulties, inconsistencies and ‘confusion’.” She knits together a long string of vaguely disapproving adjectives used by past courts to refer to the principle that the provinces and Ottawa enjoy mutual “interjurisdictional immunity”. Huddart, the subsidiarist, emphasizes that B.C. needs the flexibility to deal with a B.C. problem (“law-making is often best achieved by the level of government closest to the citizens affected”) and appeals, in an even woollier manner, to the idea that “Canadian federalism must remain responsive to the actual needs of the public”—safe injection sites being, presumably, one of those “needs” vis-à-vis the Lower Mainland.

One senses that Justice Smith dislikes harm reduction and that Justice Huddart, by contrast, considers it a matter of simple logic. But they don’t come right out and say it, and each person’s own opinions on federalism may not line up neatly with his views on drug policy. Indeed, if you are a strong centralist when it comes to Confederation AND you loathe the Harper government, or you’re just a centralizer who favours harm reduction, it seems to me that the Insite controversy has painted you into a rather awkward corner.

As far as I can tell, we are not having the kind of debate that would force such a person to say “I hate that those anti-science Conservative nutbars are trying to crush Insite, but they certainly have the right to do so.” Nor are we hearing from decentralizing socons who might say “I sure hate the idea of doctors getting paid good money to hover over diseased vermin while they irrigate their veins with poison, but as much as I like the Prime Minister, he should damn well stay out of B.C.’s business.”

I would add that this fundamental constitutional question is all the more important because, unlike many fellow libertarians and supporters of harm reduction, I don’t really believe that the value of safe-injection clinics is something that can be settled by a simple appeal to the authority of science. Science is well-placed to answer narrow, specific measurement questions about drug policy: “Did Insite reduce the number of overdose deaths in the region between years X and Y?”, for example. By answering such questions, it can provide the material for a broader assessment of the worth of such programs. But it cannot decide by fiat.

Insite has to be judged by its effects on many groups of citizens—not just the drug users who visit Insite, but the drug users who don’t and won’t; the families and loved ones of both groups of addicts; the dealers; the cops; the ordinary people who live near the clinic, and elsewhere in the region; the B.C. government, its treasury, and its taxpayers. (An environmentalist, or a Lorax, would even say that the non-human world should have a voice.) Within none of these groups are the effects simple or quantifiable by means of a single number, and all of the groups may have different claims to moral consideration, claims that there can be no universal agreement on. Moreover, the integrity of the criminal law and the public’s respect for it do count for something—maybe not much, but not zero—in this equation. The defender of Conservative policy would argue that this makes us all parties to the controversy, even outside B.C.

In short, science can’t provide us with a simple, scalar Benthamite answer to the net utility of Insite. To oppose Insite is not to be opposed to “science”, though a lot of scientists like Insite. Whether the clinic ought to exist is a question well-suited to be answered by political means: public and private argument, consensus-building, horse-trading, the consulting and balancing of moral principles, et cetera. Since this is the case, the question of what political unit should have the power to make the decision—the federation, or the province—is both crucial and urgent.

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