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.