Supreme Court Supports Insite

Up yours Vic Toews! Great news!

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.

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)

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.

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 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 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?

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.

 

 

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.

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.