As examples of judicial legislation, Slayton points out that it was not Parliament, but the Supreme Court of Canada that abolished all restrictions on abortion in the Criminal Code (R v. Morgentaler, 1988), read the legalization of same-sex “marriage” into the Constitution of Canada (Reference re Same-Sex Marriage, 1994), and overturned the law on obscenity in the Criminal Code, by legalizing consensual performances of group sex in nightclubs open to the public (R. v. Labaye, 2005). On Sept. 30, the Supreme Court was back at it again, this time overturning a decision of the federal Minister of Health to exercise his authority under the Controlled Drugs and Substances Act to shut down a so-called safe-injection site for illegal drugs in the crime-ridden downtown eastside of Vancouver.
Insite, the facility in question, is the only legal centre in North America where addicts can inject themselves with heroin, cocaine and other illegal drugs under medical supervision. The previous Liberal government of Canada sanctioned the establishment of this experiment in harm reduction for the consumption of illegal drugs, by granting Insite a three-year exemption in 2003 from the prohibitions of possession and trafficking of illegal drugs in section 56 of the Controlled Drugs and Substances Act.
In 2006, the Conservative minority government extended this exemption temporarily, but after receiving the report of an expert advisory panel which found that Insite saved only one life a year, then federal Health Minister Tony Clement decided to close the facility in 2008 and expend the money saved on other, better ways of combating drug addictions, overdoses and deaths in downtown Vancouver. Specifically, he allocated $10 million toward 20 new treatment beds for drug-addicted prostitutes in Vancouver.
Regardless, two drug addicts and the agency operating Insite petitioned the courts to overturn Clement’s change of policy, claiming that the decision to close Insite would deprive Insite users of a vital health service and thereby violate their right to “life, liberty and security of the person” in section 7 of the Canadian Charter of Rights and Freedoms. In an unanimous ruling on May 30, the Supreme Court of Canada accepted this argument and granted Insite an indefinite exemption from the ban on drug possession under the Controlled Drugs and Substances Act.
In reasons for the Court, Chief Justice Beverly McLachlin wrote: “Where a law creates a risk to health by preventing access to health care, a deprivation of the right to security of the person is made out.” As authority for this contention, she cited the notorious ruling of the Supreme Court of Canada in the 1988 Morgentaler case, which struck down all restrictions on abortion in the Criminal Code.
Here, we have a quintessential example of two wrongs not making a right. In a compelling dissent in Morgentaler, 1988, Justices William McIntyre and Gerard La Forest argued that the courts have no constitutional authority to dictate policies on abortion to Parliament.
In conclusion, McIntyre emphasized that while Parliamentary action is always subject to judicial review, “nothing in the Canadian Charter of Rights and Freedoms gives the Court the power or duty to displace Parliament in this matter involving, as it does, general matters of public policy.” Correspondingly, there is nothing in the Charter that gives the Court the power or the duty to set national policies on drug abuse and addictions.
Nonetheless, the Supreme Court of Canada is packed with judicial activists who have no compunction about dictating public policies on everything from abortion to drug abuse. Even now, lower courts are considering cases on prostitution, polygamy and euthanasia. What’s next? Will Canada’s top court legalize all these vices as well?
What will it take finally to persuade our elected representatives in Parliament and the provincial legislatures to invoke the notwithstanding clause in section 33 of the Charter to stop the overweening judicial activists on the Supreme Court of Canada from running our lives.