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.

If it is such an unsurprising victory, why I am taking the time to write this post you might ask? The answer is the result might be predictable but the path to get to that result, I must admit, surprised me. It did so in two ways.
Firstly, it is very rare to see a court decision containing language that clearly disapproves government policy. Courts try to stay as far away as they can from policy decisions and politics. In Insite, the usual restrain of the court evaporated for a moment. The Chief Justice, who usually writes some of the most uncontroversial and moderate judgments, literally smacked down the government for its demagogical policy. Like a parent, the Court had to scold its child, the government, for its misbehaviour. “It [the government’s decision] is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises. (para 136)” Some conservatives might see the Insite decision as an unwarranted intervention of the Court in government affairs. However, one quick look at the fact and we clearly see that the Court was more than justify to intervene. The fact that the government overstepped its authority for purely demagogical reasons warranted the Court’s strong language of disapproval. The Court simply played its role as guardian of the rule of law.

The language of the court was also surprising because it came from a unanimous decision. As justice Binnie said in his exit interview with the Globe and Mail: “The price of unanimity was to prune off anything that one or another judge couldn’t agree with. I should add that, I think once you have a clear majority opinion – which of course is not always achievable – concurring and dissenting opinions are extremely useful to tell the legal community and the broader public that there is a real debate going on among the judges and displaying the different contending points of view – much healthier than a false show of unanimity because it enables commentators to weigh in with fresh insights and eventually these controversies get resolved.”[6] This is exactly what I don’t like about theMcLachlin Court, the search for unanimity that too often creates deluded and narrow judgments. However, the fact that Insite was unanimous shows us that every Justices agreed with the strong language of the decision and the disapproval of the current government’s policy. Nevertheless this unanimity still produced unsatisfactory results with regards to certain points of law explored further below.

Secondly, I was surprised because the decision opens the way, at least I think, to section 7 environmental litigation. Section 7 of the Charter and environmental harm have a sad story of missed rendez-vous. To prove that a violation of section 7 occurred, one must first demonstrate that legislation or a governmental action (in the case of Insite not granting the exemption) breached your right lo life, liberty or security. In an environmental case this could be a governmental authorization to pollute if the authorized pollution damages the health of people. Insite is also interesting as it acknowledges that government inaction (not granting an exemption) can constitute a violation of section 7. Then, one must demonstrate that this violation did no respect the principles of fundamental justice. This is where a lot of previous section 7 environmental litigations have failed. Courts have accepted that pollution, when linked to a branch of government, can harm the health of people and thus violate section 7.[7] However, courts were not ready to see environmental harms engaging principles of fundamental justice. Those principles are traditionally associated with criminal justice, but also expends outside of this field (like in immigration and refugee law: see Suresh[8]). When the two first steps are “passed”, the defendant or respondent (here the government) can still demonstrate that the violation is justifiable in a free and democratic society (section 1 of the Charter). This is merely a balancing exercise between competing interests. In environmental cases, I do not see how economic interests could outweigh human lives and adverse environmental consequences.

Therefore, the main challenge for section 7 environmental litigations, beside the evidentiary difficulty of proving damages to health and linking that damage to government actions, is the second step of the test: the violation of principles of fundamental justice. This is exactly where Insite comes into play as it rendered the second step of the test a bit more flexible. The two principles considered in Insite were arbitrariness and disproportionality. On arbitrariness the Court stated:

“[131] … These findings suggest not only that exempting Insite from the application of the possession prohibition does not undermine the objectives of public health and safety, but furthers them.

[132] The jurisprudence on arbitrariness is not entirely settled. In Chaoulli, three justices (per McLachlin C.J. and Major J.) preferred an approach that asked whether a limit was “necessary” to further the state objective: paras. 131-32. Conversely, three other justices (per Binnie and LeBel JJ.), preferred to avoid the language of necessity and instead approved of the prior articulation of arbitrariness as where “[a] deprivation of a right … bears no relation to, or is inconsistent with, the state interest that lies behind the legislation”: para. 232. It is unnecessary to determine which approach should prevail, because the government action at issue in this case qualifies as arbitrary under both definitions.”

Although it would have been helpful if the Court had indicated which approach is preferable (this ambivalence is the price of a unanimous decision), the Court sent the message that if the action (or in some cases the inaction) of government is not justified by the facts and the law it will constitute arbitrariness. In environmental cases I can see the applicability of this principle to permits and licences “to pollute” granted under the authority of an environmental statute. If it is proven that the authorized pollution harms public health and the environment, thus going against the purpose of the enabling legislation and general principles of environmental law (often used as interpretative tools), the action of government could be found to be arbitrary and therefore in breach of a principle of fundamental justice.

Disproportionality is also a principle that is highly applicable to environmental litigation. This will often be a balancing exercise between health and environmental harm, and economic benefits. Economic development often overshadows its environmental consequences. Nonetheless, it is much harder to use the economy as a justification of adverse health consequences. For example authorized petrochemical industries might bring some form of economic development to a community but can also direly affect the health of the surrounding communities who often do not directly or minimally benefit from the economic growth. I can easily see in those cases a gross disproportionality between the benefit and the harm of governmental actions. Remedy may sometimes result in the closure of certain industry but it will more likely result in more stringent (read here appropriate) environmental regulations.

In the end, I believe Insite will infuse some life back into environmental Charter litigation and will be of great help for groups who seek to further environmental protection through courts. One case to keep you eyes on is the ChemicalValleycase brought by Ecojustice representing members of the Aamjiwnaang First Nation: http://www.ecojustice.ca/cases/chemical-valley-charter-case. I wish them luck in this possibly landmark case. To be continued …