Insight on Insite: Reflection on Legal Positivism and Judicial Activism

September 30 2014

The Supreme Court of Canada’s decision appears to follow the school of thought called legal positivism. This legal theory upholds that the law is compounded of rules legitimately imposed, and in its purest sense, disregarding of moral ideals in society. Simply put, the concern of legal validity for which the conditions are based entirely of social facts. Therefore, for the Insite case, it would follow the act of judge-made decision as a source of law deemed and in corroboration from a social fact. Because the Insite case featured the concern of the Supreme Court of Canada judges and there rational choice to uphold the treatment centers as well as defending section 7 of the Canada Charter of Rights and Freedoms.

Insite is the city of Vancouver’s response to drug addiction and systemic overpopulation of homeless individuals injecting themselves with drugs that which can be seen on city streets. Interviews and in-depth research in to this site is provided by the Drug Reporter HCLU where it is shown that the downtown east side on Hasting street safe injection site is not only for proper health care but it also for relieve pain from those addicted by teaching healing and proper techniques of injecting. This site, which is one of its kind around the world, has been discussed through-out the court system in British Columbia and the Supreme Court of Canada because it brings up the notion of harm and self-assisted harm with a goal and how judges who respond to the case handle the issue of judicial activism. The judges must also seep through politics and what policies are being represented through its statistical findings.

Makin mentions that this case decision has somehow formed a ripple effect as the released findings of how much the Insite is helping in regards to the number of lives it saves. In other words, the main argument being represented is effect of social sciences and the overarching ideology of with judges and society in a Canadian law context. Seeing as Insite has been in British Columbia and has provided drug addicts the ability to be overseen during safe injections, it is still the concern that the harm being down in the institution of Insite against unsafe practices is still considered harm. This harm in-turn damages section 7 of Canadian Charter of Rights and Freedoms which states that everyone is entitled to safety, security and the liberty of their person against cruel and unusual punishment. Makin suggests in his article that the harm still being done goes against such rights we are all inclined to receive. It is also observed that the judges whom agreed to the ruling of maintaining Insight, that their reasoning was because of ideology. This view that is mostly represented in this case is that of legal positivism. Without condoning or saying that what occurred was judicial activism on this blog, rather what was noticed is that the message of accepting social facts as a facet for the decision of upholding Insite and its safe injection works. In the case, it was mentioned that because this site saves lives and promotes safety if one where to inject and does not provide the injectable substance to eliminate any trafficking of drugs it can leave one to believe that these socially produced facts caused or at the very least influenced the judge’s decision. The evidence provided by social science concurs that it is the case judges at the moment of the decision where made aware of the facts prior to judgment.

McKay-Panos article relates to Makin by further developing judicial activism. This type of activism is the unacceptable method of judgment in relation to following a side that is heavily promoted for which makes a judge base their decisions on. Because this was the first-government sanction safe injection site and that it deals with the criminal possession of drugs, there are many things that need to look at such as what the charter should represent and how harm is being dealt with in the context of safety against the more dangerous way of injection on the streets. This case formed the rule that if we are to be concern with the level of harm, then should it be the case that it is okay to take down laws if there is social evidence showing that a regulation actually worsened the danger? It is also the hopes that in the future the Supreme Court of Canada makes more of a use of an interpretation of the law solely instead of worry about accusation of judgments being derived from judicial activism and decide to look at a broader scale of all sides of Insite and other programs. Whether or not judicial activism had occurred, this case follows the school of thought known as Legal Positivism because of the use of social facts, or at the very least, knowledge of social science facts in relation to the legal decision of the Supreme Court of Canada judiciary group.


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One response to “Insight on Insite: Reflection on Legal Positivism and Judicial Activism

  1. This is an interesting post.

    You suggest that the SCC decision in the Insite case reflects legal positivism. You further note that

    “This legal theory upholds that the law is compounded of rules legitimately imposed, and in its purest sense, disregarding of moral ideals in society.”

    It is true that a positivist analysis of this decision (for example, an analysis informed by the work of HLA Hart) would regard it as the outcome of a process that is governed by rules. The case found its way to the SCC through a rule-governed process, and was argued before the Court in the usual manner. The Court’s judgement cites both case law and statute. Drawing on Hart, we could clearly identify the operation of secondary rules in this case.

    However, the substance of the Supreme Court’s judgement seems to depart from the sort of decision-making that is easily explained by positivism.

    Consider the following excerpt:

    “Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions.  While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter .  The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter .

                        The Minister’s failure to grant a s. 56  exemption to Insite engaged the claimants’ s. 7  rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants’ s. 7  interests and constitutes a limit on their s. 7  rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”

    Here, the Court is referring to medical science and research findings that support the claim that ‘Insite saves lives’. While the statutory authority of the Minister under the CDSA (to grant or revoke an exemption to the Act) is not in question, the exercise of this authority in the circumstances is found to violate s. 7 of the Charter. The explicit reference to research and evidence regarding the impact and effectiveness of Insite suggests that sociological jurisprudence (as presented by Pound) may be a superior framework for making sense of the Court’s decision.