Harper swings and misses on Insite

The PM came close to shutting down Insite, only to be reminded there are still some limits to his reach

Swing and a miss

Andy Clark/Reuters

The limits of Stephen Harper’s power are becoming as interesting as the extent of it. Most days, life looks pretty good. His MPs form a comfortable majority in the Commons. Three of the caucuses he faces have no leader. The leader of the fourth, Elizabeth May, has no caucus. He inherited and did not ruin a well-performing economy. Even Americans envy Canada’s fortune.

But there is a clinic in Vancouver the Prime Minister cannot shut down by the hair of his chinny chin chin. The clinic is called Insite, and every morning drug addicts line up waiting for it to open. They keep it full until evening, injecting their veins full of heroin and other drugs. This just seems wrong to the Prime Minister. Three times he has sent federal government lawyers to court to say so. Each time they come up snake eyes.

Last week it was the Supreme Court of Canada. Two justices Harper named joined the unanimous decision against his lawyers’ arguments. Insite will stay open. Other supervised-injection sites may follow. (That last part isn’t clear. We’ll walk you through it in a minute.)

This autumn there are two new vacancies on the top court for Harper to fill. But surely the thrill is gone. If his judges think like Liberal judges, why go to all the fuss?

The Supreme Court’s decision on Insite is structured like a tease. The clinic provoked more than one kind of disagreement between Harper and the government of British Columbia. Chief Justice Beverley McLachlin and her colleagues take Harper’s side at first, and then again. Only in the last instance does McLachlin pull the football away. Like Lucy and Charlie Brown.

Insite is administered by the City of Vancouver with the blessing of the B.C. government, which sees the clinic (or drug den, if you prefer) as part of its provincial health care system. The case for Insite is that people are already addicted to heroin before they line up outside, and it is better to give them a clean place to use their drugs, with doctors at the ready in case they overdose, than to fill their syringes with puddle water and risk infection or worse.

After thinking about it for a couple of years after they were elected in 2006, Harper’s government decided this was no good. They have a responsibility to enforce the Controlled Drugs and Substances Act, Canada’s main drug law. The Constitution, which gives health to provinces and criminal law to the feds, must not let the provincial right trump the federal. And McLachlin agreed. “I conclude that the criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers.” It was a direct rebuke to B.C. government lawyers.

On to the Charter of Rights. Section 7 of the Charter protects everyone’s “life, liberty and security of the person” against government action. Insite’s defenders said the CDSA itself is the sort of thing the Charter was written to defend against, because if an addict can be arrested for trying to stay alive long enough to beat the habit, his life and security aren’t worth much in the balance.

Not so fast, McLachlin wrote: the act contains a “safety valve” because it gives the federal health minister the ability to grant exemptions from the act’s penalties if an exemption would be “in the public interest.”

So the Supremes side with Ottawa on federalism and, again, with Ottawa on whether the drug law as a whole is Charter-proof. That’s when McLachlin pulls the ball away. An exemption would provide a safety valve but the minister—Tony Clement at the time—failed to use it. Discretion isn’t absolute, and a minister who uses discretion in a way that cuts off life-saving services is being “arbitrary and . . . grossly disproportionate.” That violates Insite users’ Section 7 rights. The Supremes ordered the minister—Leona Aglukkaq these days—to produce an exemption “forthwith.”

It’s actually pretty common for governments to bluster before a Supreme Court decision and meekly comply after. Aglukkaq followed the template, taking barely two hours to announce she’ll grant the exemption as ordered. But now what happens next?

McLachlin notes that federal lawyers described “the spectre of a host of exempt sites, where the country’s drug laws would be flouted with impunity.” Not so, she insists. Her ruling isn’t “an invitation for anyone who so chooses to open a facility for drug use under the banner of a ‘safe injection facility.’ ”

And yet, further along, she writes: “Where, as here, the evidence indicates that a supervised injection site will decrease the risk of death and disease . . . the Minister should generally grant an exemption.”

So in cases like Insite, the Supremes warn against a federal stonewall. But they hint broadly that there won’t be a lot of cases like Insite. The saw-off seems to be: where an injection site is supported by a provincial government and local community, Ottawa mustn’t block it. Despite the understandable enthusiasm of a lot of activists, I think it’s fair to predict there won’t be many such cases.

But there is at least one. All of Harper’s lawyers and all of his appointees couldn’t shut it down. Nobody wins every time. If it’s any consolation, the people at Insite needed a win more than he did.

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