The year the Charter of Rights and Freedoms turned 30, two senior Canadian courts drew a line in the sand for the Harper government, and all governments, on the social issues of “the war on drugs” and prostitution.
That emphatic line shows why the Charter has lost none of its vitality, even after several years in which critics have complained – often for their own narrow, political reasons – that the court was timid and habitually deferential to government.
On Insite, the Vancouver facility in which addicts are permitted to inject illegal drugs, under a nurse’s supervision, the Supreme Court of Canada was unanimous in forbidding the federal government from closing it down.
On prostitution, the Ontario Court of Appeal, citing safety concerns and the Insite precedent, struck down a law banning brothels; rewrote a law criminalizing pimps, so that prostitutes may retain security guards (the revised law bans exploitation of prostitutes); and upheld the law against soliciting.
Both cases sent a similar message: When it comes to groups whose interests are not often defended in legislatures, the courts will not hesitate to challenge government action – when that action could mean the difference between life and death.
That message is as timely now as in the Charter’s first year, 1982 – to defend the life and health of those with little or no political voice. Insite saves lives, as several years of academic research have shown. The people of the Downtown Eastside who use the facility are the most desperately ill urban population in Canada – 87 per cent are infected with Hepatitis C, 17 per cent with HIV, 20 per cent are homeless, 80 per cent have been incarcerated, 38 per cent are in the sex trade. If a government action – to close down Insite – would take away a lifesaving option from sick people, could it ever be constitutional under the Charter’s limitation clause, Section 1? Only if that action could be “demonstrably justified” – that is, shown to save other lives. But the Canadian government had only the myths of the war on drugs to fall back on – that Insite would somehow promote drug use. The court saw facts on one side, nonsense on the other.
Using the Charter to defend the voiceless against government or social norms, the courts have kept the rights document formidable, as it begins its fourth decade.