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Landmark Insite decision threatens peace between judges and legislators Add to ...

A confrontation is brewing between the Harper government and Canadian courts as ripples spread from the Supreme Court decision ordering Ottawa to keep its hands off a Vancouver supervised injection site.

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.

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In so doing, it gave judges a new tool for activism and ensured that legal waves would surge across several important Charter of Rights cases already in the courts, and spawn many new challenges. Among the issues likely to be affected, say judges, lawyers and academics, are laws governing assisted suicide, prostitution and mandatory minimum prison sentences.

The test crafted by the court – measuring harm prevented against the harm a provision creates – elevated scientific evidence over laws found to be “arbitrary” and “grossly disproportionate,” and could be applied to a spectrum of policies from health care to the deportation of refugees.

“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.”

Coming from a court with a reputation for caution and deference to Parliament, the Insite judgment was heady stuff.

“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,” said Bruce Ryder, a law professor at York University’s Osgoode Hall Law School.

In a vivid illustration of the decision’s potential reach, the lawyer behind a major challenge to the country’s prostitution laws, Alan Young, said he has been waiting to hear from the Ontario Court of Appeal that it wants to reopen his case in light of the Insite decision. Having heard oral arguments in June, the three-judge panel was expected to release its decision in the case – known as Bedford – any day now.

“It would be strange if they didn’t because this was the highest court in the country speaking,” Prof. Young said. “I would be very pleased if they decide to entertain written submissions on the impact of the case. There is no question that Insite has very heavy bearing and supports what we are saying 100 per cent.”

Two other ongoing cases likely to be affected are a B.C. challenge to the law that prohibits assisted suicide and a challenge to polygamy laws.

Clayton Ruby, a prominent Toronto lawyer, said that the Insite ruling drew a line in the sand to warn the government not to go too far in imposing its ideology. “When government policy affects liberty and relies upon politics to shunt aside real scientific evidence, the court will step in,” Mr. Ruby said.

Wayne MacKay, a Dalhousie University law professor, predicted that critics are going to denigrate the Insite judgment as being “a slippery slope to a new form of judicial activism.”

University of Toronto law professor Kent Roach said the success of Charter litigation is going to hang on being able to quantify the harm that results from a questionable law.

“The whole area of gross disproportionality and arbitrariness is a growth industry in Charter adjudication,” Prof. Roach said. “The big question is whether the harm caused by other laws – including the prostitution ones – will be so great that the court will find them grossly disproportionate to their objectives.”

Supreme Court ruling puts other laws in jeopardy

The key phrases in the Supreme Court’s Insite ruling – “arbitrary” and “grossly disproportionate” – will be invoked in future attacks on laws and government policy, raising the questions: Arbitrary in whose view? And grossly disproportionate to what?

Courts will scrutinize what legislators were attempting to do when they drafted a law and whether their efforts precipitated an even worse situation for those affected by it, said Jamie Cameron, a Charter expert at York University’s Osgoode Hall Law School.

“Does the law make sense?” she said. “Does it cause more problems than it solves? Does it create rather than avoid danger? Does it fail dismally to achieve its objectives? Do the costs of enforcement far outweigh the benefits achieved?”

Laws that could be in jeopardy include everything from privatized health-care regulations to prohibitions against assisted suicide. Activists in the cycling community have even begun to discuss using the Insite case to challenge bike-lane restrictions which expose cyclists to a greater risk of injury or death.

In Ottawa, the Harper government could find portions of its tough-on-crime and sentencing measures facing a rough ride in the courts. “To the extent that they are driven by ideology in the face of competing social-science evidence, they may be vulnerable,” said Bruce Ryder, another Osgoode Hall law professor.

Lawyers in Vancouver are also certain to invoke the Insite judgment on behalf of Gloria Taylor, a seriously ill Vancouver woman fighting for the right to end her life. “It seems that what will really be at play is whether newer social-science evidence showing that the risks of involuntary euthanasia can be managed tilts the balance away from a blanket prohibition on assisted suicide,” said Carissima Mathen, a University of Ottawa law professor.

As for polygamy laws, Charter challengers face the somewhat different task of showing that the purported arbitrariness of the law has backfired. They will need to proffer research that documents corrosive effects the law visits on polygamous family units, as well as harm that social castigation has on family members.

Prof. Mathen said the polygamy law has an Achilles heel – its arbitrary targeting of relationships based solely on the number of people in them. This amounts to discrimination against a lifestyle choice based on nothing more than moral distaste, she said. The law is also vulnerable because instead of going after “harmful” polygamous relationships, he said, it catches every polygamous relationship in the same net.

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