MONTREAL
The Insite ruling is the most brutal collision to date between the Supreme Court of Canada and Stephen Harper’s Conservative government.
Despite the imminent appointment of two more Harper nominees to the top court’s bench, it will likely not be the last.
On Friday, the Court ordered the federal government to grant a special exemption to allow Vancouver’s supervised drug injection clinic to operate without fear of prosecution for possessing and trafficking in hard drugs.
The ruling is the latest volley in an ongoing battle of wills between the top court and the ruling Conservatives.
That conflict pits Conservative ideology against the primacy of the rule of law and it has been escalating.
Tensions between Canada’s judicial establishment and Harper’s Conservative party have been simmering for years, predating its election to office.
It has been one of the Prime Minister’s longstanding mantras that the exercise of political discretion by an elected government is not a matter for the courts to meddle with.
In a ruling dealing with Guantanamo detainee Omar Khadr, the Supreme Court had already taken aim at that contention in 2010.
In that matter, it found that Canada and the United States were violating Khadr constitutional rights.
But in spite of that finding, the Court ultimately held its fire, declining to explicitly order the government to seek Khadr’s repatriation to Canada.
At the time, legal experts argued that Harper was implicitly bound to come up with a remedy on par with the gravity of the violation identified by the top court.
In the end, there was little change to the Conservative approach to the Khadr case.
In 2010, the court had hinted strongly that it could yet force the hand of the government.
“Courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the Constitution” the Khadr ruling stated.
In Friday’s Insite decision, the nine justices took no chances.
They did not leave it to the government to decide whether to give teeth to its findings.
The court ruled that the federal government overstepped its bounds when it refused to renew a special exemption to allow Insite to continue to operate. It concluded that it had no substantial reason to do so.
It ruled that the decision went against the principles of fundamental justice.
It described the government approach as “grossly disproportionate.”
It also found that the crux of the Insite issue was not in the reach of the federal statute on illicit drugs in areas of provincial jurisdictions, or in the division of powers between the two levels of government but rather in the uneven-handed approach of the Conservatives to Charter rights versus their policy objectives.
Then the court went further than in the Khadr case — two steps further, in fact.
Writing for her colleagues, Chief Justice Beverley McLachlin ordered the federal government to grant a special exemption to the Vancouver clinic; she also opened the door to more exemptions if and when other provinces and cities take up the Insite example.
Harper is due to fill two vacancies this fall and the nine member court could be dominated by a majority of Conservative appointees in short order. But based on recent history, a Conservative-appointed bench will not automatically translate into a compliant one.
The Khadr and the Insite rulings were both unanimous, with justices Marshall Rothstein and Thomas Cromwell — Harper’s two appointees to date — siding with their seven colleagues.
The Insite ruling is a strong reminder to the Harper government that its law-and-order agenda is not above the law itself.
But it is also a reprimand for Tony Clement, a minister who has very much been on the ground zero of government-driven controversies over the past few years, first over the elimination of the long-form census and more recently over G8 summit spending.
It was Clement who launched the 2008 federal vendetta against Insite in his days as minister of health.
Origin
Source: Toronto Star
The Insite ruling is the most brutal collision to date between the Supreme Court of Canada and Stephen Harper’s Conservative government.
Despite the imminent appointment of two more Harper nominees to the top court’s bench, it will likely not be the last.
On Friday, the Court ordered the federal government to grant a special exemption to allow Vancouver’s supervised drug injection clinic to operate without fear of prosecution for possessing and trafficking in hard drugs.
The ruling is the latest volley in an ongoing battle of wills between the top court and the ruling Conservatives.
That conflict pits Conservative ideology against the primacy of the rule of law and it has been escalating.
Tensions between Canada’s judicial establishment and Harper’s Conservative party have been simmering for years, predating its election to office.
It has been one of the Prime Minister’s longstanding mantras that the exercise of political discretion by an elected government is not a matter for the courts to meddle with.
In a ruling dealing with Guantanamo detainee Omar Khadr, the Supreme Court had already taken aim at that contention in 2010.
In that matter, it found that Canada and the United States were violating Khadr constitutional rights.
But in spite of that finding, the Court ultimately held its fire, declining to explicitly order the government to seek Khadr’s repatriation to Canada.
At the time, legal experts argued that Harper was implicitly bound to come up with a remedy on par with the gravity of the violation identified by the top court.
In the end, there was little change to the Conservative approach to the Khadr case.
In 2010, the court had hinted strongly that it could yet force the hand of the government.
“Courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the Constitution” the Khadr ruling stated.
In Friday’s Insite decision, the nine justices took no chances.
They did not leave it to the government to decide whether to give teeth to its findings.
The court ruled that the federal government overstepped its bounds when it refused to renew a special exemption to allow Insite to continue to operate. It concluded that it had no substantial reason to do so.
It ruled that the decision went against the principles of fundamental justice.
It described the government approach as “grossly disproportionate.”
It also found that the crux of the Insite issue was not in the reach of the federal statute on illicit drugs in areas of provincial jurisdictions, or in the division of powers between the two levels of government but rather in the uneven-handed approach of the Conservatives to Charter rights versus their policy objectives.
Then the court went further than in the Khadr case — two steps further, in fact.
Writing for her colleagues, Chief Justice Beverley McLachlin ordered the federal government to grant a special exemption to the Vancouver clinic; she also opened the door to more exemptions if and when other provinces and cities take up the Insite example.
Harper is due to fill two vacancies this fall and the nine member court could be dominated by a majority of Conservative appointees in short order. But based on recent history, a Conservative-appointed bench will not automatically translate into a compliant one.
The Khadr and the Insite rulings were both unanimous, with justices Marshall Rothstein and Thomas Cromwell — Harper’s two appointees to date — siding with their seven colleagues.
The Insite ruling is a strong reminder to the Harper government that its law-and-order agenda is not above the law itself.
But it is also a reprimand for Tony Clement, a minister who has very much been on the ground zero of government-driven controversies over the past few years, first over the elimination of the long-form census and more recently over G8 summit spending.
It was Clement who launched the 2008 federal vendetta against Insite in his days as minister of health.
Origin
Source: Toronto Star
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