Insite Ruling poses danger on a number of fronts

[Argus]

“It is a sweeping decision,” said a senior judge who asked to remain anonymous. “They have opened up a can of worms when they talk about disproportionality. And the Supreme Court has not really told us much about how we are to sort the good claims from the bad. The result is that there will be many claims and many tough questions to worry over.

Once trial judges begin applying the Insite decision to Charter challenges, they may resurrect a burning debate about judicial activism, the judge said. “It is going to call on us to weigh policies and their effects – which is not our normal fare,” he said. “It will force us to look at policies and make difficult qualitative judgments about their effects. That is something that leaves a lot of us uncomfortable.””

Globe and Mail

The Insite decision as it pertains to injection clinics is not of particular importance in itself. But the precedent it sets which allows the judiciary to analyze government decisions and laws and then simply use their own judgement as to whether those decisions were good ones clearly usurps the role of elected governments at all levels. It basically allows judges to listen to evidence of whether a policy or law was wrong headed, or whether its application would prove harmful to someone, or whether it went against scientific evidence, or posed undue hardship, or even whether the rule or policy or law was simply not worth the cost or collateral effects on others. Then, if they decide they don't like the law, presto, it becomes "unconstitutional".

That means any group can sue the government for virtually any decision because the decision harms you in some way and is therefore 'unconstitutional'. Your city has cut back on snow removal? Sue them for violating your constitutional rights! The highway near your town is dangerous? Sue them so the courts will order them to fix it! The federal government isn't giving you a disability pension? Sue them for violating your charter rights! As the article points out, it can and will immediately be applied to laws against prostitution, against aiding suicide, against polygamy, and against a hundred more cases and subjects.

The job of elected government when it considers policies or laws is to weigh the whole broad spectrum of the reality it faces in governing, for it can never please all of the people, can never fund all the things everyone wants. A government bases decisions on a wide array of political, economic and social realities and takes many things into consideration. Are all the decisions made by government the right ones? of course not! But legal training gives judges absolutely NO ability to weigh these decisions on the basis of effectiveness and proportional cost, as opposed to the written law. To substitute their own judgement as to whether a policy is correct or not over that of elected officials is a dangerous infringement of democratic will. The Judiciary is not set up or equipped to be the 'supervisor' of elected governments. It's only real ability is to analyze law, and it does a piss-poor job of that.

Imagine, if you will, parliament considering a new law. Reports from a variety of ministries make their way to cabinet. They hash it out, and agree on a law. There are hearings where a number of groups and individuals make their concerns known to a parliamentary committee, which then makes its report. The law is adjusted pursuant to that, and comes into affect. Then some judge, who listens to a crafty attorney and some junk science substitutes his own wisdom for that of an elected parliament and says "No, I don't think that policy will be effective. So you can't do it." That is what the Insite ruling has allowed for. It allows for the judiciary to reverse or overrule virtually any decision or law made by government on the basis that the judiciary doesn't think that policy or law would be effective, or worth the cost.

Edited October 11, 2011 by Argus

[olp1fan]

What a stupid article

The Supreme Court has to interject if the Government continues to ignore key evidence in making its policy decisions

That doesn't make these judges activist judges it just makes the Government assholes who only think with their ideology

despite mountains of evidence that show otherwise

Edited October 11, 2011 by olp1fan

[Black Dog]

That is what the Insite ruling has allowed for. It allows for the judiciary to reverse or overrule virtually any decision or law made by government on the basis that the judiciary doesn't think that policy or law would be effective, or worth the cost.

The Insite ruling forged a new means to strike down laws if there is scientific or statistical evidence showing that a regulation worsened the danger that an individual or group faces.

The Insite ruling is a warning to the government that any of its laws or policies which restrict liberty or threaten lives or health are vulnerable to Charter challenge, if compelling evidence calls into question their effectiveness in achieving their stated goals.

That means any group can sue the government for virtually any decision because the decision harms you in some way and is therefore 'unconstitutional'.

Nope. It means they can try. It does not follow that they will succeed without real and compelling evidence.

[g_bambino]

{I}f they decide they don't like the law, presto, it becomes "unconstitutional".

No, if the law is unconstitutional, then, presto, it becomes unconstitutional.

The court ruling, as I suspected, seemed to centre around Section 7 of the Charter, that which guarantees "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." It would be counter to Section 7 - and therefore unconstitutional - to deny an addict access to that which the evidence shows improves his or her chances of survival and negatively impacts neither the principles of fundamental justice nor the continuance of a free and democratic society.

There doesn't seem to be anything "activist" about the decision at all.

[cybercoma]

The SCC decision was even broader than that, bambino. Rather than saying drug addicts must have access to the Insite program, the SCC was simply saying that the Minister of Health must consider their application for exemption under s. 55 and s. 56 of the CDSA. If I'm not mistaken, I believe that the problem was that the government refused to even consider the exemption. If they can find a particular and compelling enough reason to deny it the exemption, then they may do so in the future.

[Black Dog]

I think the real burning question here is: is it illegal to use drugs or not?

[olp1fan]

I think the real burning question here is: is it illegal to use drugs or not?

is it illegal to jay walk? yes, but only if you get caught

commiting fraud like tony clement is also illegal and he got caught yet gets a promotion

that worries me more than people shooting up

[Michael Hardner]

I would have been more worried, perhaps, if the ruling wasn't unanimous.

[Sir Bandelot]

I think the real burning question here is: is it illegal to use drugs or not?

please die...

[Guest American Woman]

I would have been more worried, perhaps, if the ruling wasn't unanimous.

Why? If 'all the kids are doing it,' it must be ok?

[olp1fan]

Why? If 'all the kids are doing it,' it must be ok?

just because there is a safe injection centre that doesn't mean everyones going to be like

yes! lets go to Insite and chill, shoot up a bit and then go to McD's after!

[Argus]

What a stupid article

The Supreme Court has to interject if the Government continues to ignore key evidence in making its policy decisions

\

Apparently, you don't know anything whatever about law.

[Sir Bandelot]

The Insite decision as it pertains to injection clinics is not of particular importance in itself. But the precedent it sets which allows the judiciary to analyze government decisions and laws and then simply use their own judgement as to whether those decisions were good ones clearly usurps the role of elected governments at all levels. It basically allows judges to listen to evidence of whether a policy or law was wrong headed, or whether its application would prove harmful to someone, or whether it went against scientific evidence, or posed undue hardship, or even whether the rule or policy or law was simply not worth the cost or collateral effects on others. Then, if they decide they don't like the law, presto, it becomes "unconstitutional".

Those are things judges are selected to do. Especially, supreme court judges. They are given broad powers to use their judgement to interpret areas of law that may be affected by constitutionality issues. Not everything in the law is simply black/white, hence the role of the supreme court.

That means any group can sue the government for virtually any decision because the decision harms you in some way and is therefore 'unconstitutional'. Your city has cut back on snow removal? Sue them for violating your constitutional rights! The highway near your town is dangerous? Sue them so the courts will order them to fix it! The federal government isn't giving you a disability pension? Sue them for violating your charter rights! As the article points out, it can and will immediately be applied to laws against prostitution, against aiding suicide, against polygamy, and against a hundred more cases and subjects.

Oddly, while I'm sure you are completely aghast at the concept, I'm thrilled with it. Real justice is not meted out with a sledgehammer, it's done by allowing people who are judges to think and use... wait for it... their judgment.

And I welcome the notion that the law should concern itself with matters that affect the safety of society at large, ie. primarily criminal matters, not what fully grown adults want to do with each other, in their bedroom.

That includes what they willingly want to eat, drink, smoke, or ...

The job of elected government when it considers policies or laws is to weigh the whole broad spectrum of the reality it faces in governing, for it can never please all of the people, can never fund all the things everyone wants. A government bases decisions on a wide array of political, economic and social realities and takes many things into consideration. Are all the decisions made by government the right ones? of course not! But legal training gives judges absolutely NO ability to weigh these decisions on the basis of effectiveness and proportional cost, as opposed to the written law. To substitute their own judgement as to whether a policy is correct or not over that of elected officials is a dangerous infringement of democratic will. The Judiciary is not set up or equipped to be the 'supervisor' of elected governments.

OH YES IT IS!!! Someone has to make sure that the government is compliant with Canadian law. If some rogue administration seeking to enforce its own ideology gets elected, and starts to break said laws, we the people have a means to challenge them. We have courts. We have judges. It's called democracy. Keeping checks and balances on their power.

Imagine, if you will, parliament considering a new law. Reports from a variety of ministries make their way to cabinet. They hash it out, and agree on a law. There are hearings where a number of groups and individuals make their concerns known to a parliamentary committee, which then makes its report. The law is adjusted pursuant to that, and comes into affect. Then some judge, who listens to a crafty attorney and some junk science substitutes his own wisdom for that of an elected parliament and says "No, I don't think that policy will be effective. So you can't do it." That is what the Insite ruling has allowed for. It allows for the judiciary to reverse or overrule virtually any decision or law made by government on the basis that the judiciary doesn't think that policy or law would be effective, or worth the cost.

Rubbish. You have it completely backwards. It is the Conservatives who are listening to junk science, who have refused to listen to the recommendations of scientists and medical professionals, who seek to implement mandatory minimums despite all evidence presented to them to the contrary. They're the ones who need to be kept under check, they are ideological fools and in the end it will be their own political undoing.

Edited October 11, 2011 by Sir Bandelot

[Guest American Woman]

just because there is a safe injection centre that doesn't mean everyones going to be like

yes! lets go to Insite and chill, shoot up a bit and then go to McD's after!

Did I say that they were going to? No, I did not.......

[Argus]

No, if the law is unconstitutional, then, presto, it becomes unconstitutional.

Suppose the Supreme Court says that the law which bans, oh, let's say rape, is unconstitutional. Let's say they state that any ban on rape is unconstitutional.

Does that make it so? Well, actually, technically, yes, it does. From that point on banning rape is unconstitutional.

Because the SC says it is. The law, basically, is whatever the SC wants it to be. If they say that it's legal to burn Jews in ovens, then it's legal to burn Jews in ovens. And if any reading of the law CLEARLY says otherwise, well, that's too bad. Only the SC can "interpret" the constitution, and that makes it whatever they say it is.

So when the SC extends the meaning of the constitution beyond all recognition and gives itself the right to review and overturn any law or policy which they feel causes some harm to someone or some group, against "scientific evidence" people ought to be concerned.

The court ruling, as I suspected, seemed to centre around Section 7 of the Charter, that which guarantees "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." It would be counter to Section 7 - and therefore unconstitutional - to deny an addict access to that which the evidence shows improves his or her chances of survival and negatively impacts neither the principles of fundamental justice nor the continuance of a free and democratic society.

Except, as I said, virtually all policy rewards some and punishes other, helps some at the cost of harming others. Balancing that is the role of elected government, not unelected judges who have no training or skill or ability to make those decisions. Listening to experts and judging the value of a given law or policy is government's job.

[Argus]

I would have been more worried, perhaps, if the ruling wasn't unanimous.

You think Supreme Court judges can't make moronic decisions en masse?

Think back to the Bertha Wilson decision on refugees, and the massive implications that held for Canada. It's cost us tens of billions of dollars and we've been unable to control our refugee system since that time.

This decision is potentially even worse. It will make it even more difficult to expel people who come to Canada illegally, or to remove refugees after their cases have been denied. It will affect every level of government. I can easily see where some seniors can can sue their local government over snow removal, and have the court decide their health is being endangered by the lack of good snow removal on their street. I can see almost every policy or law reviewed and investigated by judges on the basis of whether it's effective or not.

[olp1fan]

\

Apparently, you don't know anything whatever about law.

Apparently you don't know anything about the Supreme Court

[olp1fan]

lol angus, your come back is OMG what if they make rape legal?

the only slippery slope i see is your twisted way of reasoning

[Argus]

Those are things judges are selected to do.

No it's not. They're selected to read the law as written and to apply it.

Realistically, of course, there are no tests for wisdom or brains for judges. There are, in fact, a lot of really dumb judges. All they need to know is the law. They read a book, they compare it to something, and they apply the words.

Deciding what is best policy for society between the various options available to governments is NOT their job.

Especially, supreme court judges.

Right. As I recall, Paul Martin appointed two of those judges with only one criteria in mind: they were both active gay rights supporters. If they had a single brain cell between them it wasn't on the documentation which appointed them because he really didn't care.

They are given broad powers to use their judgement to interpret areas of law that may be affected by constitutionality issues.

Yes, but this is a far cry from interpreting areas of law. This is interpreting government policy based on whether it harms or helps certain goods, whether its an effective policy and justified despite or because of that harm or help. or whether the court ought to order a change to that policy. And that is not what we should have unelected people doing who are almost completely beyond anyone's ability to reign in.

And I welcome the notion that the law should concern itself with matters that affect the safety of society at large, ie. primarily criminal matters, not what fully grown adults want to do with each other, in their bedroom.

You welcome it because you hate the tories. Wait until your party is in and court strikes down some policy decisions they make because it doesn't think they're effective or justified. You're simply not looking at the big picture. You're narrow focussed on the judiciary as a brake on the Tories you despise and not thinking beyond that.

OH YES IT IS!!! Someone has to make sure that the government is compliant with Canadian law. If some rogue administration seeking to enforce its own ideology gets elected, and starts to break said laws, we the people have a means to challenge them.

Are you really under the illusion judges don't have an ideology? Come on.

We have courts. We have judges. It's called democracy.

You apparently have a profound misunderstanding about what democracy is. If the government makes dumb decisions, the electorate ought to hold them to account, not judges.

Rubbish. You have it completely backwards. It is the Conservatives who are listening to junk science, who have refused to listen to the recommendations of scientists and medical professionals,

I read the "scientific" justification and it sounded very much like rubbish to me, rubbish done up by, wait for it, ideologues.

[Argus]

lol angus, your come back is OMG what if they make rape legal?

the only slippery slope i see is your twisted way of reasoning

I'm pointing out that they have that ability. They can literally interpret the law to say and mean anything whatsoever they want it to, regardless of what it actually says.

Edited October 11, 2011 by Argus

[olp1fan]

I'm pointing out that they have that ability. They can literally interpret the law to say and mean anything whatsoever they want it to, regardless of what it actually says.

legalizing rape would infringe on the rights of the

victim, they would never entertain such a case

can you give us a more likely case?

[olp1fan]

I remember when people would claim legalizing gay marriage would lead to legalizing marriage to an animal or inanimate objects

they were obviously proven wrong

will be interesting to see if polygamy is legalized

some people think that is a slippery slope with which i disagree

its legal to marry 1st cousins in some places yet

no one whines about that

[Sir Bandelot]

Suppose the Supreme Court says that the law which bans, oh, let's say rape, is unconstitutional. Let's say they state that any ban on rape is unconstitutional.

Does that make it so? Well, actually, technically, yes, it does. From that point on banning rape is unconstitutional.

Because the SC says it is. The law, basically, is whatever the SC wants it to be. If they say that it's legal to burn Jews in ovens, then it's legal to burn Jews in ovens. And if any reading of the law CLEARLY says otherwise, well, that's too bad. Only the SC can "interpret" the constitution, and that makes it whatever they say it is.

Good lord man, you really have gone over the top with this. you would compare rape, a horrible act that completely violates another persons rights, with people who are ill due to drug addiction?

That's just... daft. It's the only word for it. Well no I can think of a few others...

So when the SC extends the meaning of the constitution beyond all recognition and gives itself the right to review and overturn any law or policy which they feel causes some harm to someone or some group, against "scientific evidence" people ought to be concerned.

Real scientific evidence was presented. Evidence that is accepted by experts in Canada, and recognised in other progressive countries around the world. Very little counter-evidence was provided by the government, and it came from disreputable sources. The supreme court decision was based on the merits of real scientific data. Not ideology.

Listening to experts and judging the value of a given law or policy is government's job.

Precisely what this government refuses to do.

[cybercoma]

Suppose the Supreme Court says that the law which bans, oh, let's say rape, is unconstitutional. Let's say they state that any ban on rape is unconstitutional.

Does that make it so? Well, actually, technically, yes, it does. From that point on banning rape is unconstitutional.

Judicial discretion, as a legal philosophy, does not mean judges are completely free to make whatever wild-ass decisions they want. Even in this case, nine judges needed to be convinced. It's a miracle to get 9 people on this forum to agree to anything, let alone 9 Supreme Court Justices. What this should suggest to you is that there is something guiding their discretion. They're able to interpret the law within some sort of framework or within some sort of limits. That framework is the rule of law. For this reason, I find your above example, if not simply absurd, to be quite odd.

[cybercoma]

No it's not. They're selected to read the law as written and to apply it.

Impossible. Words are ambiguous and require interpretation. When a law says, "no motorized vehicles in the park" does that mean any vehicle with a motor? How about an electric golf cart? What about an electric wheel chair? How about riding lawn-mowers from maintenance crews? Interpretation is always necessary.