Tag Archives: judicial activism

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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