Category Archives: Environmental Law

The International Rule of Law Part Deux: Good Faith, Kyoto and Canada

It has been a while since I wanted to write this post. As work and graduate applications kept my mind away from this blog, the situation that inspired this post evolved, evolved further, ended and restarted. In the end, I’m glad I waited as the developments made this topic much more interesting. That topic is the involvement of Canada in the Durban Conference negotiations and its Canadian climax: the repudiation of the Kyoto Protocol.[1]

After what can be considered many failed attempts to agree on the next step to implement the United Nations Framework Convention on Climate Change[2] (UNFCCC) (basically the replacement of Kyoto after its end), the State Parties to the UNFCCC met in Durban, South Africa, at the 17th conference of the parties (COP17), hoping that some agreement could be reached over the pressing issue of climate change. The Copenhagen Conference resulted in what many considered a sad failure. However, it seemed that the international community had matured sufficiently to reach something concrete in Durban. Sadly, that statement does not apply to Canada, who seems to have regressed in it international maturity level since 2006.

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Some Insights on Insite

On 30 September 2011 the Supreme Court of Canada released the Insite decision.[1] This case began when the Government of Canada made it clear that it wouldn’t renew Insite’s – a supervised drug injection clinic in the Down Town Eastside of Vancouver – exemption from the application of the Controlled Drugs and Substances Act (the CDSA). Insite and its many supporters decided to challenge the constitutionality of the CDSA applicability to Insite and of the refusal of the Minister of Health to grant the exemption. A few weeks ago, the judicial battle ended with a victory for society, and for Insite and its patients.

I am happy for the people who are involved with Insite; it is a great victory for them and probably a great relief as they won’t have this Sword of Damocles hanging over their heads anymore. It was, however, a predictable victory. The Supreme Court of British Columbia[2] and the British Columbia Court of Appeal[3] had already found that the applicability of the CDSA to Insite violated section 7 of the Charter[4] (right to liberty, life and personal security of the person).[5] The facts of this case were overwhelmingly in favour of Insite. The project had the support of the community, the business close to Down Town East Side, the public health authorities, the City ofVancouver and theProvince ofBritish Columbia. The federal government, to no surprise, only had demagogical arguments. It was thus a predictable victory as I couldn’t conceive how the Supreme Court, in anyway shape or form, could agree with the federal government. The CDSA was not found inapplicable but the refusal of the Minister of Health was found to violate section 7 and the Court ordered the government to exempt Insite and to give an exemption to any safe injection site that would meet certain criteria.

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