It’s a strange world the Supreme Court lives in

By 
  • October 18, 2011

It’s a strange, strange world when best-intended efforts to help impoverished drug addicts in Vancouver end up threatening to impose euthanasia on vulnerable Montrealers.

Stranger still is when the risk arises from the genuine desire of judges on Canada’s Supreme Court to do the right and merciful thing.

But that’s exactly where we find ourselves in the wake of a high court decision involving a so-called safe injection site in Vancouver’s crucible of inhumane poverty and misery called the Downtown Eastside.

I grew up hanging around that area as a teenager. My father worked in the neighbourhood. Whenever I waited for him after school or on Saturdays, I walked the blocks. More recently, I spent significant time there researching a short story for my new collection.

Statistics on poverty and addiction cannot convey the devastation. Suffering is incarnate in the tormented, distended, emaciated faces and limbs. (To summon a sense of it, buy Lincoln Clarkes’ magnificent 2002 photographic book, Heroines.)

So, good people sought to provide help in a place where it seems almost impossible to do more harm. No reasonable mind can doubt that those who opened the InSite facility in 2003 sincerely wanted to alleviate the desperation of addicts in the Downtown Eastside. They received a waiver exempting them, on an experimental basis, from federal drug laws and then set up the clean, medically attended space where addicts could self-inject with a measure of safety. 

In 2008, however, then federal Health Minister Tony Clement grew restive about reports the experimental facility was, in fact, doing more harm than good. He commissioned an advisory panel and delayed renewing InSite’s waiver pending a full report.

Enter the jackals. A refuge for the poorest of the poor became a dog bone of constitutional contention over federal-provincial jurisdiction. Through lawyers ($$$!!!) in courtrooms, British Columbia pitted its jurisdiction over administration of health care against federal authority over criminal law.  Political activists intent on striking down Canada’s drug laws also got their snouts into the legal fight.

Three weeks ago, the Supreme Court pronounced a judgment in the case so contorted it would make a Cirque du Soleil acrobat gasp. Contrary to the way the media reported the story, the judges actually gave the federal government paper wins on all the constitutional and jurisdictional questions. They also gave a curt judicial back of the hand to activists who sought to overturn the country’s drug laws.

Then the judges spun on their heels and ordered Ottawa to keep the experimental InSite facility open indefinitely as a matter of fundamental justice under the Charter. Worse, while the federal health minister retains legitimate authority to grant or refuse exemptions under the law that permits safe injection facilities, the onus is now on him or her to prove no harm will come from refusing a waiver.

In other words, the minister must prove a legal negative in a circumstance that would not yet exist. In effect, the court has transformed an experimental exemption into carte blanche permission.

No surprise, the Quebec government declared it would open not just one, but a string of so-called safe-injection sites across the province. Few seem to notice this effectively legalizes heroin, crack and other drugs.

If carte blanche legal exemptions have meaning, addicts must have the prerogative to buy, possess and transport their drugs. Otherwise, a safe injection site is an empty room, and the Supreme Court’s declaration of fundamental justice is toothless.

So how do we get from addicts’ arms to the arms of the vulnerable threatened with euthanasia? Earlier this year, it seemed the effort to drive Quebec into legalizing euthanasia and assisted suicide was being stymied by  public opposition. But the InSite ruling gives the province exactly what it has long claimed and, paradoxically, what the Supreme Court rejected: provincial supremacy over the criminal law under the guise of providing health care.

As it pushes ahead with its euthanasia mania, Quebec can now claim that federal criminal law prohibiting medicalized killing is an “arbitrary” and “disproportionate” interference in provincial delivery of health care equivalent to Clement’s hesitation over extending the waiver for Vancouver’s InSite.

It won’t even be necessary to overturn the criminal law against euthanasia. It can stay on the books. As in the InSite case, as a matter of Charter-derived fundamental justice, the federal law simply won’t apply.

It is, indeed, a strange world. And a return to sanity is nowhere in sight.

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