Evidence over ideology

By Kathleen E. Mahoney March 2012

In cases that affect the most vulnerable, the Supreme Court has consistently rejected morality-based policy-making.

Evidence over ideology Photography by: Bookstrucker Photography

It isn’t every day that the Supreme Court of Canada literally commands a minister to fulfill her duty. But that’s exactly what it did last September when it ordered federal Health Minister Leona Aglukkaq to exempt a supervised injection site in Vancouver, and its clients, from drug possession laws.
It was no surprise then that the ruling in the Insite case caused quite a media stir. Print and online commentators described the decision as “a new tool for activism,” a threat to the “peace between judges and legislators” and warned of “a confrontation brewing between the Harper government and Canadian courts” on everything from prostitution laws to euthanasia.
In their overheated reactions, however, they overlooked more than 20 years of gradually evolving jurisprudence involving the socially disadvantaged. In that time, the Supreme Court has shown its preference for harm-based reasoning over moral or ideological reasoning. For the most part, the Court has tied the importance of protecting citizens and society from harm to the fundamental values of equality, freedom and democracy.
Kicking the habit

The Insite clinic is located in Vancouver’s Downtown Eastside neighborhood where some of the poorest and most vulnerable people in Canada live — among them 4,600 intravenous drug users.  In the early 1990s, injection drug use in the neighborhood reached crisis levels. With that came epidemic levels of HIV/AIDS and hepatitis C, and a sharp increase in fatal overdoses.

"The judicial preference for a harms-based approach to interpreting Charter rights over pure policy is not new. It has been around since the early days of Charter jurisprudence..."

Local authorities responded by opening a supervised facility where clients could inject drugs under medical supervision without fear of arrest and prosecution as long as an exemption was obtained from the Minister of Health under The Controlled Drugs and Substances Act.
Insite operated this way from 2003 until 2008, when then Minister of Health Tony Clement refused to renew the exemption. He described the Insite facility as an “abomination” despite a large body of scientific evidence pointing to a wide range of health and social benefits, including saved lives and a drop in diseases.
Insite’s supporters launched a constitutional challenge under s. 7 of the Charter of Rights and Freedoms, alleging that the minister’s refusal violated the life, liberty and security rights of both the Insite health care workers and their clients. The Supreme Court agreed. Balancing the need for public safety against the need for public health, it found that the benefits to the health of the drug addicts far outweighed any detriment to the community or to society generally.
The message from the Court was clear. It would not look favourably on either individuals or governments rolling back protective measures for marginalized and excluded groups for arbitrary, moral or ideological reasons without good reason and some good evidence to support the decision. Given the available evidence, the Court effectively decided the Minister had no choice but to grant the exemption in compliance with the Charter’s overall aims to improve the lives of the disadvantaged.
The harm-based precedent

The Insite decision is similar in its basic reasoning to the landmark 1988 decision in Morgentaler. In Morgentaler, the Supreme Court struck down abortion legislation because it put women at risk of unnecessary physical and psychological harm, violating their s. 7 security rights. Justice Bertha Wilson added in obiter that the abortion law was grounded in morality and that moral decisions, such as whether or not to have an abortion, should be made by the individual, not the state in a free and democratic society.
In Vriend v. Alberta, the Supreme Court unanimously held that the Alberta government’s deliberate omission of sexual orientation from the human rights legislation on ideological grounds violated s. 15 of the Charter. It concluded that the proper remedy was to read sexual orientation into the Individual Rights Protection Act because of the “dire and demeaning effect of denial of access to remedial procedures” on an already disadvantaged group. The Alberta government failed to demonstrate that it had a reasonable basis for excluding sexual orientation from the IRPA and that the harm caused by the legislative omission was grossly disproportionate to any benefit gained.

"Some have argued that the Insite decision could lead to legalized prostitution and brothels of the sort found in Nevada... This is unlikely."

In the Keegstra and Taylor decisions, both handed down in 1990, the Court relied on a harm-based analysis to uphold hate speech laws against a Charter challenge. It accepted the proposition that, in restricting the promotion of hatred, Parliament was bolstering the notion of mutual respect necessary in a nation that venerates the equality of all persons. Otherwise the harm to individuals and to society caused by hate speech would run directly counter to the values central to a free and democratic society.
Similarly, in upholding obscenity laws in R v. Butler, the Supreme Court advised that while it would not be constitutionally permissible for Parliament to impose a certain standard of public and sexual morality, the Charter gave Parlia­ment the right to legislate on the basis of harm caused to women by degrading and dehumanizing pornography. Again, this was rationalized as safeguarding the values of a free and democratic society, especially the value of equality.
The Whatcott case currently before the Supreme Court raises the same issues of harm. This time, the targets of the hate speech in question are sexual minorities in Saskatchewan and those doing the speaking are justifying their hate speech on moral, religious grounds.
Given its past record, it will be surprising and inconsistent with precedent if the Court strikes down the law banning hate speech in favour of those who claim it violates their freedoms of expression and religious beliefs. In the balance, the harmful effects of allowing hate speech to go unchecked would be grossly disproportionate to any benefit that Canada might derive from allowing religious groups to generate hatred against sexual minorities or other disadvantaged groups.
Finally, in the recent polygamy reference decision, evidence of harm guided the Court in upholding anti-polygamy laws that came under attack as an unjustified imposition of religious morals. The BC Supreme Court disagreed, finding that Parliament’s original intent in prohibiting polygamy, while rooted in the Christian ideal of monogamous marriage, was at its core to protect women and children from physical, psychological and economic harm caused by polygamous relationships. Ultimately, the polygamy prohibition was found constitutionally valid as long as it was not used to prosecute children. The clear emphasis in justifying the limits on religious freedom was harm, not competing religious ideologies.
Some have argued that the Insite decision could lead to legalized prostitution and brothels of the sort found in Nevada. Prostitution laws are morality-based, the argument goes, and are now vulnerable to a successful Charter challenge. This is unlikely. Just as in the polygamy reference, even if the laws have some underlying moral purpose, the Court will fasten on the overwhelming evidence of harm as the most important purpose of the legislation. Studies indicate that all forms of prostitution are harmful to men, women and children in the sex trade. Canada’s argument that the state has no obligation to protect prostitutes because they voluntarily enter a world known for violence, drugs and death will also fail, however, given the Court’s rejection of that argument in Insite. If the goal of minimizing harm to prostitutes is the Court’s objective, the remedy will include decriminalizing the prostitution laws which endanger prostitutes but enforcing those which do not.
The judicial preference for a harms-based approach to interpreting Charter rights over pure policy is not new. It has been around since the early days of Charter jurisprudence and has required the Court to employ the full gamut of remedies. Sometimes legislation has been upheld, as in Keegstra, and other times it has been struck down or re-interpreted, as in Morgentaler. Where a legislative omission is discriminatory and causes harm, the Court has not hesitated to read-in or read-down provisions, as in Vriend. The Insite decision indicates that ministers of the Crown do not have absolute discretion in exercising their statutory powers. They must exercise them consistent with Charter principles.
The gap between research and policy has always been a problem for lawmakers, especially when the gap is a result of ideological conviction taking priority over scientific evidence. In Insite, the evidence showed the Court that the harm-reduction policy underlying the injection site was working better than the punitive, morality-driven, “war on drugs” policy that the governing Conservative Party favoured.
When policy makers implement less than optimal programs and services because they base their decisions on morality rather than on the best available evidence, negative impacts are felt the most strongly in already marginalized groups such as drug addicts, the poor, sexual minorities, prostitutes, and racial, ethnic and religious minorities. If good governance is understood as providing greater protection of fundamental rights and freedoms, the challenge for policy makers should be to identify strategies that can support evidence-based policies that address all health issues, including those with moral dimensions such as HIV/AIDS prevention, teen sexuality or prostitution. If anything, the Insite decision should be welcomed because it has moved the country one step further down that road. 

Kathleen E. Mahoney is a fellow of the Royal Society of Canada, a Trudeau Fellow and a professor at the University of Calgary Faculty of Law.
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