Rule & Exemption in Action

Emmett Macfarlane has an interesting post for Maclean’s discussing the legal and constitutional complexities of the brewing confrontation between the Mayor of Montréal, Denis Coderre, and the federal government about the possible opening of a number of supervised-injection centres in the city. In a nutshell, prof. Macfarlane points out that the federal government’s proposed (although still not enacted!) legislation setting out criteria for the granting of exemptions from criminal drug laws, Bill C-2, actually does a decent job of tracking language from the Supreme Court’s Insite decision, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, on when such exemptions ought to be granted. And yet the bill “lays out an amazing list of criteria the federal health minister is required to consider when approving future exemptions,” which the government may well be able to weigh and manipulate to deny exemptions. As a result, prof. Macfarlane writes, while “[i]t’s pretty obvious the federal government is intentionally making it as difficult as possible to get approval for new supervised-injection sites,” it is by no means clear that C-2 is unconstitutional.

Prof. Macfarlane observers that

[i]f the federal government refuses to provide exemptions for new proposals and defends its decision-making with reference to the court’s own criteria, it would be interesting to see the justices untangle this knot.

This brings to mind a post I wrote a few months ago, in which I argued that the Court’s approach in Insite was at odds with that which it had taken in another case involving a prohibition-and-exemption regime, albeit one dealing with abortion, R. v. Morgentaler, [1988] 1 S.C.R. 30. In Morgentaler, the majority did not consider the constitutionality of a decision to deny an exemption from the general prohibition on abortions to a particular woman. Instead, it held that, although it was intended to further legitimate governmental concerns, the exemption regime itself was unconstitutional. For the Chief Justice Dickson and Justice Lamer, its criteria were vague and generated considerable uncertainty, and indeed had the effect of making the purported availability of an exemption illusory. For Justices Beetz and Estey, the delays generated by the process were unfair because they created an additional danger to the health of the women concerned.

The federal government’s approach to granting supervised-injection sites exemptions from drug laws seems to raise all of these concerns. It is impossible to know whether an exemption will be granted, but the public statements of the ministers involved suggest that its availability may well turn out to be an illusion in practice. In the meantime, the process of applying for an exemption is long and complicated, even when all the stakeholders agree, as seems to be the case in Montréal.

To answer prof. Macfarlane’s question, then, regarding the way in which the Supreme Court might “untangle the knot” that the enactment of C-2 would create, Morgentaler suggests that, if an eventual challenge is framed so as to admit of this solution, and if the Court is so inclined, the knot could be cut by holding that the procedure for granting exemptions, although set up in response to legitimate concerns, was designed in a way that rendered it unconstitutional. Whether the Court would indeed choose this solution is an open question, not least because it is not clear why it decided Insite differently from Morgentaler. As I suggested in the post linked to above, the difference may have been the result of a different framing of the constitutional challenge. It may also have to do with the nature of the constitutional harm involved, abortion being a more obviously time-sensitive matter, and thus calling for bright-line rules ― though the risks that people prevented from using a safe-injection facility run every day they are denied access to this service should not be neglected. The Court might also have been concerned by the sheer number of abortion cases, which meant that decisions concerning them could not realistically be judicially reviewed. Depending on which, if any, of these factors was the most important one, the Court may, or may not, be amenable to changing its approach to injection-site cases.

Prof. Macfarlane is right, of course, that “[a]cross the country, others wait for the service the court protected for Vancouver addicts. They shouldn’t have to wait for another round of prolonged litigation to get it.” But, as Yves Boisvert observes in La Presse, for the current federal government “to fight a war on drugs is not enough; one must also fight a war against the drug addicts” (translation mine). Indeed, the war on drug addicts may well be a substitute rather than an addition to the war on drugs, since it seems to have the perverse effect of keeping drug consumption up instead of down. But it’s a war that the government seems intent on fighting to the bitter end. The Supreme Court should understand this, and take this sad fact into account in its decision-making.

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