Supreme Court Supports Insite

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Northern Shoveler Northern Shoveler's picture
Supreme Court Supports Insite

Great news.

Issues Pages: 
Northern Shoveler Northern Shoveler's picture

Choke on this Harper.

Quote:

In a unanimous decision, the court ruled that not allowing the clinic to operate under an exemption from drug laws would be a violation of the Charter of Rights and Freedoms.

The court ordered the federal minister of health to grant an immediate exemption to allow Insite to operate.

"Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation," the ruling said, written by chief justice Beverly McLachlin.

The court ruled that withdrawing the exemption undermines the purpose of federal drug laws, which include public health and safety.

http://www.cbc.ca/news/canada/british-columbia/story/2011/09/29/bc-insit...

Arthur Cramer Arthur Cramer's picture

Up yours Vic Toews! Great news!

6079_Smith_W

The thing that pissed me off most about that scenario was Tony Clement swearing up and down that the government had made no decision, but as soon as there was an injunction to keep it open, it was very clear that they were going to shut it down as soon as time ran out on it.

This is justice in more ways than one.

 

 

Sean in Ottawa

And you think the Harper government will give up because it is the supreme court?

I think I can predict their next step and no need to write it down because this one we can all see coming.

Catchfire Catchfire's picture

Every single advance that the DTES has earned to counter the legislated poverty and oppression foisted on them by the ruling classes has had to be fought for tooth and nail. It's wonderful news, of course, but FFS.

And yes: fuck you, Vic Toews, Tony Clement and Stephen Harper.

Sean in Ottawa

Don't get me wrong-- this is great news but we should not declare victory too soon as this is a government without respect for the Court and will use this as a part of a campaign against the court.

The only authority this government considers respectable is the PMO-- not parliament, not the court, not the people, not the Charter...

(Possible exception US government when the PMO agrees with it)

Northern Shoveler Northern Shoveler's picture

Sean in Ottawa wrote:

The only authority this government considers respectable is the PMO-- not parliament, not the court, not the people, not the Charter...

(Possible exception US government when the PMO agrees with it)

Agreed that the PMO is everything for Harper since our system gives him the power of a dictator when he leads a majority government.  However Insite is connected to the war on drugs and I think that in relation to the US Harper is the tail not the dog and the dog wags the tail.

Pogo Pogo's picture

My understanding was that Court said that this was a provincial (Health) responsiblity and that Federal permission was not required.  I am not sure what avenues are left for Harper.

6079_Smith_W

I realize he has the ability to use any trick he can (including using the senate to quash H of C decisions) but it is empowering to see that there is still the power to beat him in some things. 

THe question is when he will use the notwithstanding clause (don't know if that is what you were refering to, Sean).

 

Boom Boom Boom Boom's picture

CBC analyst speculating that Insite could be a provincial model elsewhere - maybe Toronto and Montreal - but the communities have to confer with provincial authorities before getting into this kind of arrangement.

Northern Shoveler Northern Shoveler's picture

There is no withstanding clause when it comes to jurisdiction under the constitution. I believe this decision did rule that it is a provincial matter but I have not had a chance to read it.  The government can overrule Charter rights but not unilaterally extend its jurisdiction into provincial areas of law.

6079_Smith_W

Northern Shoveler wrote:

There is no withstanding clause when it comes to jurisdiction under the constitution. I believe this decision did rule that it is a provincial matter but I have not had a chance to read it.  The government can overrule Charter rights but not unilaterally extend its jurisdiction into provincial areas of law.

Yeah, I was wondering about that, but I was also wondering about the exemption from the Criminal Code WRT drugs. So I don't know if he may be able to use it or not.

jas

Awesome news. Way to go, Insite. Kudos to BC Supreme Court.

Boom Boom Boom Boom's picture

jas wrote:

Awesome news. Way to go, Insite. Kudos to BC Supreme Court.

Wasn't it the Supreme Court of Canada that handled down this ruling? Wink

knownothing knownothing's picture

Hopefully they open them all across the country. They should have government run pothouses too!

Catchfire Catchfire's picture

The historic Insite decision in a nutshell

Quote:
The media, of course, have been reporting on the decision this morning with gusto.   But, understandably, there has been some confusion in the reporting of the actual legal decision that was handed down by the Court.  For the record, let me give a brief explanation of what was decided (and what wasn’t) by the SCC:

In this case, we made two big arguments.  The first was that Insite was health care and health care is a “protected core” of provincial power.  As a protected core, health care decisions (like creating Insite) couldn’t be negated by a federal law (the Controlled Drugs and Substances Actor CDSA) . This constitutional doctrine is termed “interjurisdictional immunity” (impress your friends with this if you dare) and has been relied on by the courts less and less frequently in recent times and has never worked in favour of provincial powers, only federal ones to date.  We lost this argument in the BC Supreme Court, and then surprisingly won it in the Court of Appeal.  In the Supreme Court of Canada, we lost it again.  The SCC said in this case to “apply it here would disturb settled competencies and introduce uncertainties for new ones.”  So, when the media say that the SCC decision found that health care was in the purview of the province and can’t be ousted by the criminal law, that’s not really true.  The SCC says that – absent anyCharter issues – the CDSA applies and can oust health care because of another constitional doctrine: paramountcy.

The second argument, though, relied on the Charter.  We said that the CDSA sections were unconstitutional because they violate the Section 7 rights to not be deprived of life, liberty or security of the person without being in accord with the “principles of fundamental justice” (continue impressing your friends).  OR, the Minister’s failure to continue an exemption of theCDSA was a Section 7 infringement.  In the end, the SCC found that while the prohibition on possession of drugs (but not trafficking) does engage life, liberty and security of the person, it wasn’t contrary to those principles because there was a mechanism in place where the Minister could grant an exemption for purposes of science, reasearch, etc.  But, because the Minister refused to grant an exemption, this was contrary to the Charter Section 7 because this decision was arbitrary (undermining the purposes of the CDSA) and grossly disproportionate.  So, in the end, the Court ordered the Minister (“an order in the nature of mandamus” – if you still have friends left after the first two, try this one out) to issue the exemption forthwith.

And, that’s the decision in a nutshell.

 

 

6079_Smith_W

THanks, CF

In other words (if I understand that gobbledygook) Harper could potentially invoke the notwithstanding clause and raid the joint. If he chooses to spend his political capital that way.

 

Sean in Ottawa

Ok maybe I should explain what I was thinking the Cons will do with this as it may be less obvious than I thought.

First the Conservatives could use the provincial autonomy rights argument against healthcare. The next time a province wants to do something negative to healthcare the feds could cite this decision and back away from challenging them-- even if it is absurd because if they back away there will be no way of proving how absurd as ultimately there would be no decision. This time the provincial government was challenging the Feds to protect healthcare but some of those arguments can still apply if the province was challenging the CHA. In other words the decision could be brought up politically as cover for a refusal to challenge a province blatantly flouting the Canada Health Act.

Second, they could use the decision as a tool to fight the Supreme court to try to limit its ability to influence (or more accurately after-the-fact test policy).

While the two arguments are different and in some ways oppositional they could co-exist.

Sure the Cons could fight it (notwithstanding clause, new legislation) but that may be less worth it than accepting it and turning it to their advantage as outlined above. Given the loss on the Charter issue, fighting it is likely not as practical as using it against healthcare and that is my fear.

So the Charter argument is helpful but the provincial rights argument could just as easily go the other way in a future case.

Northern Shoveler Northern Shoveler's picture

Sean as you well know Harper will do what the fuck he wants and it will usually be bad for the most marginalized in our society.  Thats just the kind of guy he is.  I am celebrating today because at least for a while he will not get his way in a life and death matter.

Insite saves lives and it is still open today.    Laughing

Sean in Ottawa

I agree with you there-- my caution is that he is slippery. But I am a strong supporter of Insite and very pleased at the victory. We should still be prepared for Harper's next play.

shartal@rogers.com

In addition to the discussion above it should be noted that in this decision the SCC expanded how s.7 can be used. If we can argue that denying users access to safe injection sites violates their right to life liberty and security of the person than we might also be able to argue when a government makes a life sustaining social program like ODSP, or safe affordable housing also violates s7

Sean in Ottawa

Wow-- that is an interesting observation