In the ongoing struggle between ideology and evidence within the Harper government, ideology too often wins.
The entire field of criminal justice features the government’s determination to ignore evidence. Occasionally, the evidence is so incontrovertible, and the means for forcing it on the government so forceful, that the government has no choice but to adjust course and, in a few instances, to actually retreat.
So it will be with the supervised injection site in Vancouver’s Downtown Eastside after the Supreme Court’s unanimous support of the program’s continuation and its utter rebuff of the Harper government’s opposition to it.
The minister at the time of the government’s appeal against supervised injections at the Insite clinic was Tony Clement, now under justified assault for boondoggle spending in his constituency surrounding last year’s G8 summit in Huntsville.
Mr. Clement, as the then-minister of health, tried to justify the unjustifiable in the face of overwhelming medical and scientific evidence about the nature of drug addiction and how to cope with it. He did the same routine in mid-2010, trying to defend the Prime Minister’s decision to scrap Statistics Canada’s long-form census in the face of overwhelming opposition from every knowledgeable Canadian in the field of statistics.
Mr. Clement is now Treasury Board President, but he can look back and find the arguments he deployed in the drug-injection case utterly and unanimously shredded by the Supreme Court in a decision that should have surprised no one.
The trial judge and appeal court had also ruled in favour of the injection site’s continuation as a place where addicts could get controlled access to drugs under medical supervision. It was a policy supported by medical associations, nurses, public health experts and those learned in the cruel maladies of addiction.
Against this sturdy wall of legal rulings, scientific evidence and expert opinion, the Harper Conservatives hurled their ideology, arguing that drug users should be weaned off drugs. Drug use was Bad, and morality dictated that the goal of abstinence and recovery should prevail.
No expert would deny that, in the best of all worlds, weaning an addict from addiction is the most desirable outcome. Too often, the trouble is that addicts try and fail to quit many times. Alas, they’re afflicted with a disease rather than a moral shortcoming. Chief Justice Beverley McLachlin, quoting approvingly from the trial judge, wrote that addiction is a “primary, chronic disease.”
Of course, the Harper Conservatives’ “tough on crime” crusaders insisted that the Criminal Code makes drug-taking a criminal offence. So drug users were not only morally negligent, they were criminals, too.
Technically, drug users are criminals. But the Liberal government had granted an exemption from the criminal law to allow the injection site to operate, the theory being that controlled use under supervision would lead to less crime because addicts wouldn’t be desperately seeking money to feed their addiction. And, of course, controlled access did less harm to the addicts than shooting up in back alleys with shared and dirty needles.
But the Harper Conservatives said they wouldn’t grant an exemption, thereby threatening the injection site with closure. There the matter rested until the Supreme Court said that such a decision – which it described as “arbitrary and its effects grossly disproportionate – risked lives (“security of the person”). This is another way of saying that the minister (and the government) ignored evidence, or stared at evidence and willfully ignored it.
The exercise of ministerial discretion, the court said, must rest on “evidence” and the “principles of fundamental justice.” It added: “There is … nothing to be gained (and much to be risked) in sending the matter back to the Minister for reconsideration.” Concluded the court: “On the facts as found here, there can be only one response: to grant the exemption.”
These words are about as blunt as a court can use toward a government whose view of evidence is “arbitrary” and in whose hands decisions based on rights would be “risked.”