Tag Archives: Insite

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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Sociological Jurisprudence in Action

Insite is a health-focused place where people can inject drugs and connect to health care services (Vancouver Coastal Health, 2014). Founded in 2003, Insite provides a clean environment for intravenous drug users in Vancouver’s Downtown Eastside. Here’s a quick video about Insite, if you are interested. The facility does not provide narcotics for its clients, but instead provides the clean utensils necessary to prevent the spread of disease. In order to operate legally, Insite was provided a legal exemption from section 56 of the Controlled Drug and Substances Act. After having to apply for exemption annually, Insite petitioned the courts to allow for exclusive exemption. The federal government opposed this claim but the courts sided with Insite. The federal government appealed the decision and the case made its way up to the Supreme Court of Canada (SCC). The SCC dismissed the appeal, ensuring Insite the legal exemption it desired once and for all. In reaching their decision, the judges utilized sociological jurisprudence.

As Pavlich describes, sociological jurisprudence views law as connected to the social and psychological processes that judges use to decide what law is in a particular context (Pavlich, 2011). Rather than strictly relying on legal rules, judges let extra-legal factors (social, cultural, and psychological) determine how they will decide (Pavlich, 2011). Roscoe Pound founded the concept of sociological jurisprudence. As dean of Harvard Law School, Pound valued the law and felt that it could be used to advance society (Pavlich, 2011). Sociological jurisprudence looks outside legal domains and maximizes the interests of society (Larsen, 2014). While consideration of the consequences is key, the decision must reflect the public opinion (Larsen, 2014).

In relation to the Insite case, the judges looked beyond the law; they considered how the consequences of their decision would affect society. While Insite does violate section 56 of the Controlled Drugs and Substances Act, they determined that a legal exemption was in the best interest of society. Insite was preventing overdoses and limiting the spread of infectious and often deadly diseases. Canada’s highest court ruled that laws might be struck down if there is scientific or statistical evidence showing that a regulation negatively affected individuals or groups (Makin, 2011).

Not everyone was pleased with the SCC’s decision. Kirk Makin’s article expresses that the ruling gave judges a new tool for activism (Makin, 2011). The ruling outlined the federal government’s ideological reach and opened a can of worms at the same time (Makin, 2011). Essentially, there is fear that the courts will scrutinize legislative decisions through judicial activism. Many people are uncomfortable with the idea of judges having that amount of power.

Linda McKay-Panos’ article contrasts the views portrayed in Makin’s article. McKay-Panos acknowledges that judicial activism usually has a negative connotation, but how can it be called activism when judges are only doing what they are empowered to do? (McKay-Panos, 2011). Judges are interpreting the law based on the arguments and evidence presented to them (McKay-Panos, 2011). By evaluating the harm that would result from not granting Insite the exemption, the judges determined that it was an unjustifiable violation of some individuals’ Charter, section 7 rights to life, liberty, and security (McKay-Panos, 2011).

Through a sociological jurisprudence lens, McKay-Panos and the Supreme Court of Canada agree that Insite should continue to operate. The main purpose of law, as suggested by Pound, is to ensure the survival and advancement of society (Pavlich, 2011). Essentially, law is cleaning up the Downtown Eastside by preventing death and disease through Insite.

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Food for Thought: Insights on Insite

In 2011, the Supreme Court of Canada released its judgement in the case of Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. This case is often referred to as the Insite case, as it had to do with the operation of Vancouver’s Insite supervised injection facility (which is run by PHS Community Services Society). At issue was whether the federal government had the authority to revoke an exemption to the Controlled Drugs and Substances Act that allowed Insite to operate.

You can find the text of the judgement here.

The Court’s decision was controversial, and many argued that it reflected a power struggle between the government and the judiciary. Newspaper articles written in response to the decision debated whether and to what extent it represented ‘judicial activism’.

This week’s Food for Thought post requires you to engage with the Supreme Court judgement (linked above), as well as two short articles:

Makin, Kirk (2011). “Landmark Insite decision threatens peace between judges and legislators”, The Globe and Mail, October 10, 2011. 

McKay-Panos, Linda (2011). “SCC Wrongly Accused of ‘Judicial Activism’ in Recent Insite Case, ABlawg.ca, October 31, 2011.

Food for Thought:

Write a post (following the guidelines in the course syllabus) that addresses the following questions:

  • Which school of thought that we have studied so far best explains the Supreme Court of Canada’s reasoning in the Insite decision? Your response should briefly introduce and describe the school of thought and explain how it applies to the case. Be specific, and remember that readers of this blog may not be familiar with the material you are discussing.
  • The articles by Makin and McKay-Panos discuss the Insite case as an example of tension between ideology and social science evidence in Canadian law. What does this mean?

If you wish to prepare a post in response to this week’s ‘food for thought’ post, it must be submitted (at any time) before class on September 30.

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