Supreme Court oversteps its bounds with InSite decision

The Supreme Court of Canada in its decision handed down on the legality of InSite, the Vancouver drug injection site, has arrogantly decided that it is more capable of determining Canada’s national drug policy than the nation’s elected government.

It has ordered the Minister of Health to continue the operation of this controversial drug injection site even though, under the Controlled Drug and Substances Act (CDSA), this is supposed to be a matter for the Minister’s discretion.

In its judgment, the court talks out of both sides of its mouth by claiming it is not interfering with the exercise of ministerial discretion but then goes on to state that the Minister must grant the exemption not only for the Vancouver site, but also generally for all other applicants for drug injection sites in the country on the grounds that, to do otherwise, would deprive addicts of their “life and security of person” under Section 7 of the Charter of Rights and Freedoms.

The practical effect of this decision is that the court has exempted InSite from the criminal provisions on illicit drug use and has only graciously allowed the federal government to “regulate” these sites, thus fundamentally changing our national drug policy by widening the use of illegal drugs.

The court has made the decision despite the fact that Canada has been criticized numerous times by the UN’s International Narcotic Drugs Control Board for establishing this site, the first in North America, as it contravenes UN drug treaties ratified by Canada. Apparently, the Supreme Court is of the view that the UN drug treaties ratified by Canada are not binding on us.

The Supreme Court gave as its reasons to exempt InSite from the provisions of the CDSA the fact that it supposedly “saves the lives and health” of drug addicts. This is highly questionable since this conclusion is based on the flawed research provided by a group of advocates and promoters of InSite who have a conflict of interest in this research, since they were also the lobbyist and advocates for the establishment of InSite more than a decade ago.

This points out that judges are ill-positioned to make national policy decisions. They have limited access to social data, depend on biased and narrow arguments of the litigants and also on unreliable information in the media. They are isolated from society and are not exposed to differing perspectives, since there is no public debate such as that which occurs in Parliament.

This decision stands as a monument to the determination by the Supreme Court to control Canada’s national agenda, not Parliament, presumably on the basis that it believes it knows what is best for the Canadian public.

This decision directly attacks the democratic process and is a flaunting of the power and influence of the courts using the vague words of the Charter to promote the court’s own ideological perspective.

(Landolt is National Vice President of REAL Women of Canada.)