IS THE CHARTER 'APPLIED ETHICS' IN LAW'S CLOTHING?

The interaction of law and ethics is increasingly overt in developing
and implementing social and public policy, especially in contexts
that affect human life and well-being such as reproductive
technologies, public health, drug addiction, end-of-life
decision-making and prostitution. The Supreme Court's judgment in the
Insite case manifests this interaction, and examining it from that
perspective provides insight.

Insite is a medically supervised injection site in Vancouver's
Downtown Eastside, where drug addiction, HIV and hepatitis C
infections constitute a public health crisis.

In 2003, the federal health minister granted the professionals
operating the clinic an exemption under the Controlled Drugs and
Substances Act, giving them immunity from prosecution for drug
possession and trafficking. In 2008, the minister revoked the
exemption, meaning the clinic would have to close.

The Supreme Court unanimously ruled that the minister's exercise of
his discretion must comply with Charter of Rights requirements, and
it did not. The court found the failure to grant an exemption
breached drug users' Section 7 rights to "life, liberty and security
of the person," because it put their health and life at risk. The
refusal was "arbitrary" because it undermined the law's purpose -
protecting health and public safety.

And it was "grossly disproportionate" because the clinic "was proven
to save lives with no discernible negative impact on the public
health and safety." The harm to drug addicts far outweighed any
benefits the refusal would engender.

I suggest the Supreme Court is using the Charter to implement ethics
at an individual case level, while keeping the law intact at the
general level - it ruled the act itself was constitutionally valid -
much as the old courts of equity did. When the King's courts' strict
application of the common law caused unconscionable outcomes for
unsuccessful litigants, equity, as the "court of conscience," acted
in person! am to prohibit victorious parties from enforcing their
judgmen! ts. It put a "gloss on the common law." Although operating
in a very different way legally, the Charter can be viewed as
allowing 21st-century judges to realize similar goals.

To judge whether this is a good development, we need to understand
some recent history.

In the early 1970s, two new realities caused the relation between law
and ethics to change.

We could no longer simply assume that we all bought into the same
shared societal values or that the law reflected and upheld shared values.

The Charter, enacted in 1982, might have been one response, in that
it articulated our shared values and ethics.

Second, emerging techno-science faced us with unprecedented life and
death issues, starting with heart transplants and augmented by
reproductive technologies. The law couldn't cope. "Applied ethics,"
as a way to supplement the law, emerged as a response.

At first, ethics was used by courts and legislatures as an add-on to
the law, but, around 1990, they began looking first to! ethics and
second to whether the law complied with the ethics.

As in all statements of principle on which a wide societal consensus
is sought, the Charter is couched in broad and general language.

Variance and disagreement enter at the level of the interpretation
and application of its provisions. Criticism of the Insite judgment
manifests such disagreement. It's seen by some as a court overriding
government policy-making and interfering with executive discretion,
and introducing uncertainty into the law's application. As opening up
Charter challenges to a wider range of executive decision-making and,
perhaps, a wider range of bases, such as social and economic
considerations, on which to rule legislation is in breach of the
Charter. And as bad ethics.

Just because a court considers ethics doesn't mean what it decides is
necessarily ethically correct.

And, as we know, we don't all agree on ethics.

Or the judgment can be seen as the court using the Charter in a
legally soph! isticated and complex way to reach an ethically
acceptable outcome.

How! the courts interpret Charter rights could depend on whether they
view the Charter as a legal articulation and embedding of fundamental
ethical norms and principles in the Constitution and intended to
ensure that state actions are ethical, not just legal.

So is the Charter really "applied ethics" in law's clothing?