DRUG INJECTION SITE RULING WASN'T A TOTAL VICTORY

The inescapable conclusion from the Supreme Court's recent ruling on
Vancouver's so-called safe injection site for drug addicts is that
even writers don't read anymore.

No one who has actually read the Sept. 30 document, after all, could
possibly contribute a single line of prose to the fantasy narrative
echoing incessantly around the court's order to keep the Insite drug
facility operating.

The effect is significant for more than pedantic or forensic reasons.
Democracy is, of course, distinguished from other political systems by
its process.

Democratic government demands that the free and open process of
decisionmaking has equal weight with what is ultimately decided. To
make a good decision the wrong way is a bad democratic thing.

To keep that process functional, information and understanding must be
anchored in reality, not whim, not wish fulfilment, not outright
falsehood. What keeps us free to truly disagree is the knowledge our
dispute is informed by agreed upon facts.

Yet in the week since the Supreme Court handed down its judgment, the
air has been filled with claims that:

- - The court struck down the law that the Harper government relied on
to refuse Insite permission to continue letting intravenous drug users
inject illegal drugs on its premises.

- - The court's decision constitutes a constitutional guarantee that the
facility can operate permanently in Vancouver's drug-infested downtown
eastside.

- - Similar so-called safe drug injection sites are now legal everywhere
in Canada as a result of the court decision, and even groups wishing
to, say, hand out crack pipes to addicts on the streets of Calgary are
free to do so.

- - The Harper government suffered a crushing constitutional defeat on
every aspect of the case, putting its entire anti-crime legislative
agenda at risk.

- - The government of British Columbia won a major victory by having the
court agree that the province's constitutional jurisdiction over
health care trumps federal criminal law.

None of those statements is true. The law was, in fact, upheld - as
was the minister's prerogative under the legislation to refuse to
extend permission for Insite to remain open.

What the court held was that federal Health Minister Tony Clement's
decision to close down in 2008 did not take into account the
obligations of fundamental justice set out in Section 7 of the Charter
of Rights. It found the federal government failed to produce
sufficient evidence at trial to show that letting the facility
continue to operate would cause greater harm than shutting it down. It
ordered that failure remedied by the issuing of a waiver that allows
illegal drugs to be exempted from prosecution if possessed for medical
or scientific purposes. It was explicit, however, that "the granting
of a permanent constitutional exemption" was not appropriate.

"Moreover, the minister should not be precluded from withdrawing an
exemption should changed circumstances at Insite so require. The
flexibility contemplated by Section 56 (of the legislation) would be
lost."

It went even further: "This (ruling) does not fetter the minister's
discretion with respect to future applications for exemptions, whether
for other premises or for Insite. As always, the minister must
exercise that discretion within the constraints imposed by the law and
the Charter."

The sentences are there in black and white. All anyone wanting to
write about the Insite ruling has to do is read them. To understand
them in context obviously requires reading the entire judgment. Doing
so debunks the claim that the Harper government lost constitutional
powers over criminal law. It didn't.

In fact, British Columbia and Quebec (which predictably stuck its nose
into the case for its own benefit) had their hats handed back with
their heads still in them by the court. Every argument they advanced
for the supremacy of provincial health care over Ottawa's power to
enact criminal law was soundly rebuffed.

Reading the reasoning behind those sound rebuffs gives the lie to a
last claim that has been repeated ad nauseam about the Insite
decision: That it is a clarion call for the triumph of science, reason
and evidence over the Harper government's purported ideological moralism.

The text of the ruling reveals a high court contorted by the competing
demands of constitutional divisions of power, public health and public
safety. Where the constitutional issues are very clear, the court
itself is also clear. Where the law governing what the minister can
and cannot do is explicit, the court is equally categorical.

But when it comes to the real-world effect of those things on the
lives of the tragic souls who inhabit Vancouver's skid road, it lapses
into a muddled mush of best intentions and legal authority to make
happen what it feels should happen. In other words, it moves from the
law to social work.

It wants to help, and so uses its power in a manner that is as
arbitrary as it accuses the minister of being when he refused Insite
permission to continue. It wants to do the right thing, and so bends
the Charter of Rights into a means by which the highest court in the
land can command that criminal activity be allowed to continue as
criminal activity.

It does not seek to decriminalize the drugs used at Insite. On the
contrary. It does not order the government to cease prosecution of
drug possession. No. It acknowledges the legitimacy of the criminal
laws in question. But it orders that the criminals involved because
they are poor, vulnerable and afflicted with the disease of addiction
must, as a condition of fundamental justice, be given a waiver, to
continue their criminal ways. They must be able to break the law using
a permission slip the minister is loath to give. Indeed, it is the
minister who must prove why criminals should be prevented from
criminality.

The Charter, somehow, demands it.

As a political position, the position would be barely coherent. As a
legal ruling?

At the very least, it should touch off a real free and open debate
about the damage done to the democratic process when the Supreme Court
declares that fundamental justice requires breaching the rule of law.

It's apparently easier, though, just to ignore what the court actually
writes and create fantasies to debate instead.

Peter Stockland is the director of the Cardus Centre for Cultural
Renewal and editor of LexView, its legal publication.