The Supreme Court of Canada today ruled that Insite operates under provincial jurisdiction: "The appeal and the cross‑appeal are dismissed. The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith."
In the ruling, the court said:
Section 4(1) of the CDSA engages the s. 7 Charter rights of the individual claimants and others like them, but, because the Minister has the power to grant exemptions from s. 4(1), it does so in accordance with the principles of fundamental justice. Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA. It also directly engages the rights to life, liberty and security of the person of the clients of Insite.
In order to make use of the lifesaving and health‑protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises. Prohibiting possession at large engages drug users’ liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person. However, because s. 56 gives the Minister a broad discretion to grant exemptions from the application of the CDSA if, "in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest", s. 4(1) does not violate s. 7. The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects. ...
The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Minister’s decisions must conform to the Charter. If the Minister’s decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter, then the Minister’s discretion has been exercised unconstitutionally. In the special circumstances of this case, the Court should go on to consider whether the Minister’s decision violated the clamaints’ Charter rights. The issue is properly before the Court and justice requires that it be considered. ...
The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It 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. ...
The Minister's failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It 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. ...
As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy. In the special circumstances of this case, an order in the nature of mandamus is warranted. The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.
Crawford Kilian is a contributing editor of The Tyee.
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G West
34 weeks ago
This is huge news
Both as a confirmation that the reasons for 'Insite' concern something very foreign to the current government in Ottawa - i.e. the health concerns of very troubled and damaged human beings AND the principle of fundamental justice.
But it is also a wonderful thing to see a unanimous decision of the supreme court which shoves a stick in the eye of the Federal Government by asserting and strengthening an area of provincial jurisdiction.
Pee Wee and his fundamentalist backers are not going to like this.
All Canadians who care about the future of the country and the well-being of their weakest and most powerless fellow citizens should be rejoicing at this news.
Dan the socialist
34 weeks ago
This was the right decision.
This was the right decision. Not one court ruled in Harpers favour either. yet he kept wasting our tax dollars to appeal. He should pay for the costs out of his own pocket.
Ha ha to Harper...
G West
34 weeks ago
Since this morning I've had a chance to read the decision
And I have to amend my post above - the decision is very narrow and doesn't appear to be appreciably increasing provincial powers - I was basing my remarks this morning on media reports - not always a good idea.
The ball's back in Harper's court - if Insite managers start to attempt to do more - or if other jurisdictions decide to try and adopt Insite's model - there is no guarantee that the feds will not be able to stop them (or harass them) again.
This does not appear to be the game changer one would have hoped for...still, on the very narrow front of extending the principles of fundamental justice it is a small victory none the less.
Spudster
34 weeks ago
It was the Charter stupid, not Provincial rights
The SCC ruled no such thing in favour of provincial rights. They in fact outright rejected the argument that provincial rights supersede those of the federal government, as they have done everytime such an argument has been made.
The SCC ruled the Minister was required to grant Insite an exemption because not doing was was a Charter violation under Section 7. The reason for this being that the decision was arbitrary, not linked to any reasonable evidence of reducing harm, and thus was violating the healthcare rights of those receiving the service.
Any media that says this is about Provincial autonomy over the Federal government is VERY incorrect and should publish a retraction immediately. (and probably fire their courtroom reporters who wrote such a terribly incorrect headline too)
G West
34 weeks ago
@Spudster
You are, as noted, correct - my earlier remarks were based upon - again as you note - incorrect early media reactions.
You are absolutely correct about the SCC ruling - as anyone who has read it will acknowledge.
The Tyee headline (as were the early radio reports I heard) is wrong.
EcoCollectivist
33 weeks ago
Nice
Take that ideology!!!! Awesome day. Finally something to smile about.
Eduard Hiebert
33 weeks ago
Thanks! Despite the correctives, decision still a big deal!
Having heard several news report I am indebted to both Gwest and Spudster's (interim?) correctives... Thanks!!!
Far too many court decisions read like a pop song, which translated into English (to be read with longer pauses between commas to simulate the crooner's delivery) have the twists and turns seen in “I drink the wine..., unhappily..., alone”! Except legal decision employ much longer, more complex sentence content and structure and are among the reasons why it is so easy as noted through the above correctives of correctives to misinterpret the full meaning of a legal decision.
Even though this decision represents a more narrow reversal of a Harper policy than reported publicly, on the democratic front this decision is still a huge victory for the people who have to expend a huge uphill effort while “our” government with public purse money makes for a “deep pocket” resistance to basic human rights. And this notwithstanding with an increasingly politicized judiciary. Simply note how Harper, as the PMs before him, ever more brazenly make plans to stack the judiciary. Thus even though the court assisted reversal is relatively narrow, this still means that there are still distinct limits to the powers of those who gain phony majority control of “our” “elected” government.
Adding insult to democratic injury, it is no accident that Harper scrapped the publicly funded court assistance program. And as long as we still have elections, through a more prudent use of our current voting system, we the people can still effectively combat our political partisan party based elections as referenced in my posts under “Is capitalism preparing to bury itself”.
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