Filibuster Cartoons
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Prime Minister Stephen Harper was dealt a massive blow in his anti-drug crusade yesterday after the Supreme Court of Canada ruled unanimously that Vancouver’s famous “Insite” safe injection clinic could not be shut down without violating the Constitution. Harper’s government had previously been arguing that the clinic — which provides clean needles to downtown junkies as a way of preventing the spread of disease — undermine’s Canada’s drug laws by embracing a double standard of tolerance: shooting heroin is fine so long as you’re already addicted.
The Supreme Court, in contrast, held that denying addicts clean needles blatantly endangered their health, and by moving to shut down Insite the government was “arbitrarily” infringing on the junkies’ right not be deprived of “life, liberty and security of the person” as protected by Section 7 of the Canadian Charter of Rights and Freedoms. If the government could make a compelling case that the infringement was necessary to prevent some greater social ill, said the Court, then maybe the shutdown would be justified. But instead they concluded just the opposite, declaring the facility’s operations have had “no discernible negative impact on the public safety and health objectives of Canada.”
The fact that the ruling was unanimous was no doubt doubley insulting to the Prime Minister, since it revealed that neither of the two justices he personally appointed, Justice Thomas Albert Cromwell and Justice Marshall Rothstein, were willing to side with either his government or philosophy when push came to shove.
Now obviously it’s incredibly intellectually lazy and corrupt to expect judges appointed by a sitting government to always blindly side with that government. The whole reason judges have such long terms in the first place is precisely to grant them sufficient independence from the politicians who select them, and allow them freedom to issue honest rulings without fear of partisan reprisal whenever political orthodoxies are disrupted. Yet it seems an opposite extreme is also possible, and equally troubling.
The Supreme Court of Canada issues an awful lot of unanimous rulings these days. Of its last few major rulings — R v. National Post on protecting media sources, AttorneyGeneral v. Mavi on collecting debt from deadbeat immigrant “sponsors,” Beckman v. Little Salmon on interpreting Native treaties, and the reference on the constitutionality of federal securities regulator — all were unanimous, despite the fact that these were undeniably controversial cases regarding matters about which there was no shortage of diverse opinion across the country. Like Insite.
The entire Insite ruling, in fact, evokes one of the most famously polarizing legal debates of all time: the old “freedom from” versus “freedom to” dichotomy. In the Court’s opinion, Vancouver’s drug addicts have a freedom to use Insite’s facilities, a belief which enshrines the principle that access to health care is always guaranteed, even in cases where the “treatment” for one’s sickness will merely perpetuate that same illness. No one, not even the conservative judges, supported the government’s contrary case that the public’s right to freedom from the negative effects of legalized hard drug use — or a community that tolerates their use — was equally valid, though this is certainly an argument you hear constantly in Vancouver newspapers, talk radio shows, blogs, and Internet forums. It’s hardly a way-out-there position, in other words.
In my experience, drug legalization is an issue that seems to skim the elite from the masses. Certainly this was the case in Vancouver, where the leadership of both our leading provincial parties, the NDP and the Liberals, all living former mayors of the city, and countless high-profile representatives of the British Columbia academic and legal establishment, endorsed the Insite facility. Though it would be nice to believe such civic glitterati came to their conclusion solely as a result of their large, ultra-rationalist, educated brains, it can’t be denied that the issue has become something of a social signifier in recent years. Decrying the “failed drug war” is the expected conclusion of anyone carrying the pretence of a thoughtful, urbane, modernist, and the idolization of some European utopia, where the drugs are all legalized and all crime has ceased, the expected motivation. It all stems from some larger place of progressive alienation with the culture of “law and order as usual” in this country, and an often visceral dislike or fear of things like cops and prisons, which are seen to be so… unsophisticated. Questions like why we have drug users in the first place, or how we can get their numbers down, are rarely asked in this context.
Canada’s legal establishment has long been denounced by conservatives, and even some liberals, for moving in an ever-more cliquey, cloistered, and groupthink-oriented direction. Because our country is small, and thus only dominated by a few “good” law schools, it’s become far too easy to establish a legal orthodoxy, and far too difficult to come up with unique answers to big legal questions — such as, what the Constitution means — without coming off as a fringe weirdo. There is no Canadian equivalent of something like the US Federalist Society, which champions the traditionalist legal philosophy of a limited (rather than “living”) constitution, nor does the Canadian system of judicial appointments allow the philosophies of prospective judges to be in any way scrutinized by a broad base of democratic representatives, on behalf of the broad base of Canadian public opinion.
The fact that even Stephen Harper, our supposedly most dogmatically ideological of prime ministers, was unable to appoint even a single reliably anti-progressive orthodoxy judge to Canada’s highest court should be troubling to anyone who values the idea of a diverse and open-minded judiciary. You don’t have to believe the Court needs more conservatives to see the value of having dissent within its ranks.
October 2nd, 2011 at 10:45 am
What if the court is right? Would it be tokenism to want diversity for diversity's sake?
October 2nd, 2011 at 10:48 am
Yeah, I thought you were against artificial diversity! And that was with something of 0 consequence, the French language in BC. Hardly desirable on the Supreme Court!
October 2nd, 2011 at 10:48 am
My point was more that I think it's quite undemocratic when the court professes something as undeniably controversial as this case was not, in fact, controversial in any way at all.
October 2nd, 2011 at 11:07 am
"Questions like why we have drug users in the first place"
Now that you mention it, I can't think of anyone who is really asking this question, which greatly troubles me.
Is it social pressure? Escapism (in which case, from what)? A materialistic culture? A conspiracy headed by a cartel of drug manufacturers?
October 2nd, 2011 at 11:10 am
"Questions like why we have drug users in the first place, or how we can get their numbers down, are rarely asked in this context."
This makes no sense at all! Anti-Drug War people are always asking these questions, and answering them too.
When it comes to the broader issue. Drugs being illegal inspires use. There are a great number of drug-users out there who do drugs just for the thrill of doing something illegal, even if they won't admit this to themselves. The US has far higher rates of drug use (usually in every category, ranging from alcohol, to illicit drugs, to unnecessary pharmaceuticals) than countries like Holland or Denmark. Portugal recently decriminalized loads of drugs, and of course, use fell across all categories. Drugs being illegal also causes there to be an incentive for drugs to be "pushed" on people by those who want to sell them for profit.
When it comes to this specific case. The Insite contributes to the lowering of heroine use because users of the clinic have been more likely to enter treatment. These are hard numbers that ideology can't erase.
You accuse Insite supporters of not being rational in their support for the clinic, but I have yet to hear anything in the way of "evidence-based" arguments (also known as facts) from Stephen Harper.
Love the cartoon by the way.
October 2nd, 2011 at 11:32 am
Courts are not supposed to be "democratic", they're supposed to be rational and constitutional. That is why they exist – as a balance against the will of the majority as expressed by elected officials. Neither does "open-mindedness" require that one is just as likely to subscribe to one philosophy as another, since it's quite possible that any given philosophical position is simply wrong. Crying about the damn liberal establishment snobs is a cheap way of avoiding these truths, and frankly lacking in analytical rigor.
October 2nd, 2011 at 11:36 am
Thing is, not all controversy is right for the court to take a stand on. The Americans refer to the "Political question doctrine" – the idea that an issue can be controversial, but that the controversy is in the sphere of politics, and not of law, and so the courts should avoid it. To pick an obvious example, if the court was asked to rule on whether Ignatieff was allowed to run in an election, they'd unanimously say yes, even though him running is clearly not a popular action and he got nowhere doing it.
If Insite is controversial – and clearly, it is – then the correct action is not to declare it unconstitutional, the correct action is for the voters to try to elect a government who will shut it down.
October 2nd, 2011 at 11:42 am
There is also the minor detail of the provincial and federal division of powers in Canada's constitution, and specifically if Insite is applicable to provincial responsibilities regarding heathcare.
October 2nd, 2011 at 12:52 pm
But alcohol is legal. And people don't do other illegal things, like cockfighting and murder simply because they are illegal… Do they?
Cannabis is basically legal in NZ (Unless you're dealing, or smoke it in front of a police officer) and yet we have one of the highest rates of cannabis use in the world.
October 2nd, 2011 at 1:08 pm
Saying "people do it because it's illegal" is not a sound argument. Are you equating drug use to some form of resistance to government oppression? Surely you wouldn't claim that to lower the murder rate, we should legalize murder, so what makes drug use different from other criminal acts that are somehow made better by legalization?
Comparing the success of the Netherlands and Denmark – and, let's put aside the fact that the Netherlands has been seriously rethinking its liberal social policies lately – in combating drug use to the United States is like comparing apples to oranges. As democratic nations go, small European countries could not be more different than the United States. How can one compare largely homogeneous nations with relatively narrow income gaps, like the nations of Europe, with the world's biggest melting pot that has struggled throughout its history with discrimination, inequality and social strife? A nation currently so divided, that a sizable slice of the country is seriously considering trying out some Randian experiment?
Decriminalizing drug use in Europe was almost certainly a piece of a huge social program designed to tackle the problem. It is not, in itself, a miracle solution. Without a major social push to get people off of drugs, decriminalization won't save addicts and it won't prevent new ones from popping up.
There isn't much argument on whether or not insite saves addict's lives. But it's far less clear whether it is a solution to the problem of drug use.
October 2nd, 2011 at 2:31 pm
Of course decriminalization is not a perfect solution. Ideally it would be complimented by increased social services, education, etc, that would prevent drug use in the first place. Harper does not believe in these "big government" ideas though so for now harm reduction is a suitable policy choice to make.
Simply because the Netherlands is different in size and nature does not refute the argument I'm making. What you need to do is name a country where decriminalization led to increased use of drugs. I have never heard of one, so at this point the onus is on pro-criminalization advocates to find some evidence that goes against Portugal, etc.
I don't know about New Zealand to be honest. Again, you'd need to show drugs use increased after making the rules more lax, not just argue there is a lot of use. You should also look at other drug use too, and see how their use has changed.
As for the murder argument. First of all, it's a ridiculous analogy. You can't compare the two in any way. Drug use on its own does not harm another person (I stress, on its own). That's a key difference.
Some people do indeed equate drug use with "sticking it to the man." Some do it to rebel against their parents, or to show independence. It's pretty common sense I would argue. I also have been around enough people doing drugs of all kinds to have a bit of confidence of opinion on this one. Perhaps you have too, but most of the people I know who crusade against drug use, have little or no experience with it.
October 2nd, 2011 at 3:35 pm
What I'd like to know is why we should be concerned with reducing the number of drug users, in-general.
Granted that drugs can cause problems, but so can lots of other things. And also not all drugs or drug-users are created equal, the stereotypical heroin-abuser is not the same as the guy who lights up a couple joints on the weekend.
Is there any reason why 'Drugs' should be pursued as a social-ill that should be somehow excised from society by whatever means perceived as necessary any more than drugs and alcohol are?
I'm serious here, I'm not asking about actual proven debilitating drug-abuse (I'm still for legalization as a means to legitimizing treatment rather than pursuing incarceration as a means to reduce the harm caused to addicts and those around them), I'm asking why is it, "Drugs 'r Bad, m'kay."? Given how complex this issue can be, why is it so many just hear, "Drugs!" and just automatically start nodding and hmming, "Oh yes, mm-hmm, very bad business that, hmm."
October 2nd, 2011 at 5:12 pm
"Drug use on its own does not harm another person"
Then why the second-hand smoke controversy?
October 2nd, 2011 at 5:16 pm
Writing off complaints about high rates of unanimity as nothing but uninformed hostile grousing also lacks analytical rigor, and is an easy way of avoiding truths.
J.J. has pointed out that the court rules unanimously with suspicious regularity on controversial cases. It is true that this may be because certain legal philosophies are, as you say, "simply wrong." But can we admit that other explanations, like groupthink, are at least possible? Are we at least allowed to examine the underlying causes of unanimity, or must we forever sit back and assume without evidence that the courts are always above reproach?
October 2nd, 2011 at 5:19 pm
Courts are supposed to describe the law as written. Often that means describing what a reasonable person would take certain language to mean. In that sense, they are democratic. Also: trial by jury.
Rather than arguing whether the courts are democratic we should be asking whether the law was interpreted reasonably. JJ is essentially asking whether the law can be so clear on something so morally ambiguous, and I think it's a reasonable and unanswered question.
October 2nd, 2011 at 5:33 pm
The other day, I was discussing drug policy with a friend and I proposed legalizing drugs but amending criminal law such that intentionally taking drugs counted as proof of intent to do anything done while under the influence of those drugs. In other words, if you get in a car accident while high it counts in criminal court as if you deliberately aimed your car at whatever you hit. If you drive home drunk it's no longer a DUI, but if you hit someone on the way home it's voluntary manslaughter (the same as if someone puts a gun to your head and makes you to kill someone else).
Since you're a skeptic of the harm inherent to doing drugs, do you think that would be a more reasonable application of the law? It only punishes drug use if it results in some other crime.
There's also a medical costs consideration, since drug abuse almost by definition damages one's own health and the public typically ends up footing the bill. But I'm ignoring that issue for now.
October 2nd, 2011 at 5:49 pm
It's controversial with respect to opinion and politics, but that doesn't necessarily mean it's controversial with respect to the constitution (I don't know if it is, I'm not an expert on Canadian law, my point is there's a difference). It doesn't really matter how "conservative" the judges are, if they're doing their jobs right they have to uphold the law that exists whether they agree with it or not. I think your measure of what is controversial isn't necessarily the same as the judges'.
October 2nd, 2011 at 6:35 pm
"The whole reason judges have such long terms in the first place is precisely to grant them sufficient independence from the politicians who select them, and allow them freedom to issue honest rulings without fear of partisan reprisal whenever political orthodoxies are disrupted."
"My point was more that I think it's quite undemocratic…"
You're contradicting yourself here. In the first statement you seem to endorse the undemocratic nature of the court. You can't have it both ways. Judges are not (or at least should not) be politicians. Their purpose is not to represent the people, but to provide a relatively consistent interpretation of the laws as written. Whether the laws should say something different is not a question a judge ought to consider.
October 2nd, 2011 at 7:03 pm
That is an intriguing proposition, and in general I'd be fore it mostly because I'm of a mind that on an individual level personal liberty vs. public safety is better balanced by swift prosecution and punishment of actual wrongs rather than by trying to legislate-away 'Potential' wrongs. …but anyway.
As to my being a skeptic, you seem to me to be both missing my point and making it for me.
There are pharmacutical chemical compounds which can do significant harm to an individual's health depending on dosage, long-term use, and the individual's tolerances and metabolism. However, there are also chemicals that fall under the layman's term 'Drugs' which have an overblown reputation for dramatic physical and mental consequences of use. Why then, I ask, is it so important… irrespective of individual health factors which of course vary widely… that we reduce 'Drug' usage? Is reducing Drug-use good, just because it is?
October 2nd, 2011 at 7:13 pm
Les, I could answer your question, in fact I think about 33 million Canadians could, but that would require a lot of typing and stuff.
Let's try this: You believe that we, in a welfare state with public health care, should not be concerned with reducing the number of drug users – and by drug users you include crackheads, meth heads, speed freaks, and heroin junkies – because…why? Please, complete the sentence.
October 2nd, 2011 at 7:23 pm
Terrible decision, not for anything involving Insite: The problem is the basic premise that a newly elected government can't overturn a ministerial decision by the previous government. Terrible slippery slope here.
PS J.J., as a member of the legal community, just about every law school in Canada is considered equal (U of T excepted)
October 2nd, 2011 at 7:25 pm
There's a difference between legal controversy and political controversy. The law can be clear on something when the people's minds are divided on it.
October 2nd, 2011 at 7:27 pm
There's a big difference between saying that courts are bound by the "reasonable person" standard and juries on the one hand and criticizing them for being "undemocratic" when they deliver unanimous verdicts on topics which are politically controversial on the other. Courts are not supposed to be bound by the will of the majority.
October 2nd, 2011 at 7:47 pm
I include nothing, that's kinda my point. The argument as I understand it seems to indiscriminately lump all manner and form of drug-use (except maybe alcohol, nicotine and caffeine use) into one big pile and say, "We must stop people from doing this because it is right and good and good and right."
Why?
Getting people to stay away from Heroin I can understand, and Meth and Crack and many others, but why is it good to force or convince people to not do 'Drugs' in general?
October 2nd, 2011 at 8:38 pm
We call this the "conservative's burden": we have to explain everything to you. You're a blank slate, seeking wisdom, which is good, if you are sincere, which I don't believe you are, but in any case I don't have time to explain. How much cash you got? I don't educate for free.
Why not do what I do and millions others do and do your own research? Even better, why not explain how drugs are your pal and part of a healthy well balanced lifestyle, as evidenced by the joyful, productive, and healthy residents of the downtown eastside in Vancouver?
October 2nd, 2011 at 9:17 pm
Juries are about determining facts, though. The reasonable person seems to have no relation to any real person (Except, perhaps, the judge presiding). The judicial determination of the law is entirely undemocratic. Which becomes a problem when you get activist judges.
I wonder if these unanimous decisions are sort of snowballing: once you get a couple of unanimous decisions on controversial constitutional issues, that's going to give a pretty clear idea of the Canadian legal position, leading to more unanimous verdicts, which will make it even clearer what the legal position is. Even as it, potentially, drifts further and further from the position of much of the public?
October 2nd, 2011 at 9:25 pm
I seem to remember that being the English position on crimes committed while intoxicate (Drunk or high).
It was, I think, a bit more complicated than that; getting intoxicated counted as intent only for crimes which admitted indirect intent (most of them, but, if getting intoxicated led to a culpable homicide it would be a manslaughter rather than a murder, unless the intoxicated person had actually formed intent to kill)
A weaker version, which presumes intent based on intoxication, but accepts proof of no actual intent as a defence, is the law in New Zealand.
October 2nd, 2011 at 9:37 pm
Or you could just, you know, answer my question? :D
Why are 'Drugs' bad, irrespective of the medical harm specific pharmacutical substances can do.
Why are 'Drugs' bad, and not the 'Not Drugs' like Alcohol… other than the fact that declaring Alcohol bad kinda-sorta didn't work? ^.^
I eagerly await more patronizing, oh conservative guru.
October 3rd, 2011 at 12:47 am
Someone once suggested to me, that the best way to decrease drug use was to make it legal but to tax the hell out of it.
…I can see what they were thinking, but like a lot of things, I can see how it could go horribly, horribly wrong.
October 3rd, 2011 at 2:47 am
My point is that you're applying too extreme a definition to the use of "undemocratic." You're right, courts are not supposed to be bound by the will of the people (and JJ said as much), but it's not really a virtue to have courts consistently making decisions that dramatically oppose to the public morality, either. The greater the gap between the law and the public idea of what is right, the more broken the legal system is demonstrated to be.
October 3rd, 2011 at 3:15 am
I don't think I'm missing your point at all. Drug use is considered dangerous because of side effects which range from the benign to the fatal. When those effects alter perception of reality or ability to respond rationally and there are no medical benefits to countermand the consequences (such as recreational drugs) then issues of public safety are thought to override individual freedom and make drug use a "bad thing" and reducing it a "good thing." Politics gets in the way of proper classification sometimes, classifying some drugs out of proportion with their actual consequences, but the general principle is basically sound.
My proposed solution takes the power of classification away from centralized government and applies punishment only to consequences — if consequences don't manifest, the law doesn't impose artificial ones. You could consider it an empirical test to determine the answer to your question. If law enforcement gets easier and public health and safety improve, drug use was not bad per ce. If law enforcement and public health and safety remain about the same or worse, then the old system judged the dangers of drug use about right and reducing drug use is a good goal for it's own sake.
October 3rd, 2011 at 3:28 am
There is the rather Buddhist belief that truth can only be perceived in the absence of physical influences (including not just medical and recreational drugs, but also food and personal desires). It is shared to some extent by basically every religion that believes in fasting or self-deprivation of any kind and most atheistic and agnostic ethical philosophies, but Buddhism seems to hold it as more of a core belief than the others.
So, unless you have a very clear and specific ethical philosophy that includes an express exception to this rule, it sounds almost like you're arguing against ethical philosophy generally.
October 3rd, 2011 at 3:35 am
Also, the difference between illegal recreational drugs and legal ones is roughly based on medical and psychological side effects, but governments are not very good at drawing lines between "too dangerous" and "safe enough." That's why I'm (cautiously) advocating that governments not be making the call.
October 3rd, 2011 at 4:34 am
England did that with smoking and now people just smuggle cigs in from Holland or France.
October 3rd, 2011 at 4:37 am
Good point. It is a matter of choice politics not a fundamental constitutional right. What makes less sense is that drug use is illegal and the clinic is directly undermining drug laws. How can Harper be an executive if he is not allowed to enforce drug laws. Drugs are illegal enforce it. Simple as that. That's all he had to argue.
October 3rd, 2011 at 4:42 am
It's simple. Make drug user facilities. You can use all the drugs you want. Simply go into a drug user facility and do all the drugs you want while you tied up in a chair or in a padded room. You pay the taxes that would fund it and that's it. It literally takes the drug use off the streets and out of homes/apartments and into a place if you do overdose or go rage crazy you will be stopped and given ad. It will remove the drug danger from the public.
Plus, seriously how many crimes do drug users commit versus the amount of crime drug traffickers and dealers make? Traffickers and dealers cause more crime than drug users. Drug user crime can be completely controlled for the most part, drug dealers and traffickers cannot.
October 3rd, 2011 at 4:43 am
Then what is the point of having elected office if you cannot change the law? Or are ministerial decisions akin to amendments to the US Constitution?
October 3rd, 2011 at 4:49 am
You snort or ingest one bit of drugs (coke, heroin, meth, etc.) you lose all control of yourself. One can of beer or one cig will not change how you act or how you interact with people. It can but normally it doesn't unless its withdrawal or you took to much. Otherwise alcohol and cigs don't affect you to the point that you can't control your body.
Please note that going through withdrawal (because you are addicted) or getting drunk is going too far but you can smoke ONE cig and take ONE beer and be fine. But anyone who takes a little bit of the heavy drugs, completely changes how they act.
In other words, cigs and alcohol are weak but heavy drugs are strong. Simple.
October 3rd, 2011 at 4:58 am
Actually a judge is nothing more than a legal dictionary. A judge is to take into account only what the lawmakers were thinking/doing when writing the law.
- If I buy a house, buy blue paint labeled "blue paint" and its actually blue paint. And then paint my house blue. It's blue.
- Now lets say when I die I want my house to be kept as it originally was when I finished remodeling it.
- If in a few decades the paint gets dirty and gets dark and looks purple. Does it mean I want my house repainted purple? No. Repaint it blue because it was originally blue.
- A judge is suppose to rule that the house has to be painted blue and not purple just because it "looks" purple. But with these "living document" judges they will say "Oh well now society has changed and it looks purple so purple is okay."
- Fast forward a few more decades it fades to red and then the house is painted red. Now its the complete opposite of what I wanted. I hate red, but now it ended up being red. How did that happen? It was painted blue originally and not red and I never said otherwise. But it ends up red. That's how these "living document" judges believe.
October 3rd, 2011 at 5:21 am
While I agree with the idea that too much unanimity from the Supreme Court could be considered a bad thing, is it not also possible that the public's idea of rightness is what's broken, instead of the legal system?
October 3rd, 2011 at 5:24 am
I could be that there was a lot of controversy within the court while they were deciding how to vote. Just because the vote came out with all of them having the same conclusion could mean that there is a lack of diversity in Canadian law, but it could also could mean that different viewpoints sometimes agree.
In my opinion trying to close down a safe needle clinic is like trying to close down food inspection labs. After all you're only destroying billions in rejected food right? Economic boon over public health?
People gotta eat, and addicts (while they don't HAVE to start) almost always need to feed their addiction. A dirty needle can harm more than just the drug user too.
October 3rd, 2011 at 5:39 am
Drug use does harm other people, frequently, and sometimes fatally. Even responsible prescription & over the counter drug use can harm others. Its why those bottles and boxes come with a laundry list of warnings, directions, ingredients, and information on what to do "in case _____ happens", etc.
As for legalizing it I'm wondering if JJ is speaking as an observer of the Vancouver/Seattle "legalize ______ drug now!" movements. Could be a bit of my own stereotyping the folks who live out there, but since I don't visit the Pacific Northwest area in my daily, weekly, monthly, or even yearly life its the best I have to go on.
I find the best answer to anyone calling for legalizing drugs (especially pot), and think that they everyone will suddenly grow it in their backyards like tomatoes and parsley. Just point out that growing personal tobacco is legal, and you don't have to pay Malboro for the right to smoke it. Don't see to many backyard tobacco plants anywhere. If pot was legal to grow then people would just get their gas tanks filled and buy a pack of Pall Mall Ganja, and only a few people would actually grow it. Same system, new fix.
October 3rd, 2011 at 5:57 am
Not a lot of mention about the altering affects of legal drugs. A lot of non-prescription stuff often comes with warnings about operating heavy machinery (HINT HINT car/truck/van). I also know for a fact that if you have taken ritalin within a year(Drug most known for treating ADD and ADHD) that the US Military will not take you. Even in double war time(in fact ESPECIALLY not during war time). Even if has been longer than a year you're still an undesirable recruit.
The fact is ANYTHING you put into your body could be harmful. Even food and water. Popping complex chemicals and compounds that aren't normally ingested (read: drugs) is more often a bad thing for most people. Its why you're not popping a penicillin pill every single day "Just to be safe", and only using them when you actually have an infection. The health benefit of curing the infection, at that moment, is greater than the potential health risk.
Illegal drugs are illegal because most do not have an actual medical usage, except a few that are opiates. Though there are a few things that are not illegal, or as illegal, and yet still could be considered with the "drugs r bad m'kay" group.
October 3rd, 2011 at 5:59 am
I thought the point of an elected office was to represent your majority in -trying- to change the law to what they wish it to be. Now if it was a Monarchy it would be "What would the point of a Monarchy be if they do not control/change the law?".
October 3rd, 2011 at 6:02 am
Isn't this what Sweden tried? I think the issue was that drugs were leaking out of the system to much. Basically the doctors/clinics turning into the new traffickers and dealers on the side. Wonder if policing the system vs policing it as it is now, and how the costs might compare.
October 3rd, 2011 at 12:34 pm
As a law student with a focus on constitutional law, I can tell you that JJ is right about there being a rigid progressive orthodoxy that is destroying Canadian constitutional law. The problem is that after the enactment of the Charter, the Supreme Court essentially adopted the European methodology of constitutional interpretation: living tree analysis and proportionality. This was done without much argumentation on the subject. There was no debate about what was best for Canada and our unique political/legal system. Framers' intentions and original meaning were said to be useless.
If, like the American legal profession or that of Britain or Australia, which share our legal traditions (unlike Europes's civil law) we consider framers' intent or original meaning in interpreting the constitution, this decision would never occur. It is plainly there in the debates and testimonies from the drafting of the Charter that section 7 was simply intended to be a guarantee of procedural due process, not a broad or substantive right. It was meant to be freedom from, not freedom to. The court's Charter decisions have largely been illegitimate and anti-democratic. The whole point of a written Constitution is to articulate specific rights that have been agreed upon by a super majority of political actors as definite limits to government. It is not meant to be a broad, baseless mandate for judicial review of government decisions. You write things down because you want their meaning to endure and have binding effect into the future. Courts reinterpreting constitutional provisions based on "changing social values" is ridiculous.
October 3rd, 2011 at 2:00 pm
Some journalists have argued that the unanimity is actually a sort of defensive act by a Court that is very insecure about having its decisions contested as political or partisan. In other words, if everything is unanimous than everything is neutral, because, as some readers have suggested, unanimity implies that the law is so 100% clear that no legitimate dissent is even legally possible.
I think this is pretty obvious when you look at some of the Court's recent unanimous rulings, which are very obviously the product of a sort of groupthink where every single judge had to get a bit of his or her own perspective in there. A lot of SCC decisions are extremely difficult to understand or summarize for this very reason.
October 3rd, 2011 at 2:09 pm
Lack of jobs and the desire to live on the edge a little. As far as I know. You have to look no further than the people complaining about how smartmeters will invade privacy to see the underlying "oh no you'll know where the growops are" message. There are zero real reasons to oppose the smartmeters that aren't tinfoil-hat conspiracy theories.
But that's not what goes on at insite. The people going there are mostly of the homeless type, and the only reason there is a need for it, is that otherwise they reuse needles, shoot up in public bathrooms (did you know that nearly every restaurant within three blocks of a bus stop or skytrain station will refuse to let you use their bathroom? they don't want to cleanup the mess left by drug users and vandals) drop needles in parks and playgrounds, and generally make it significantly more dangerous for the general public, particularly children to play outside.
October 3rd, 2011 at 3:01 pm
Interestingly, the meaning of colour words are notoriously hard to define and have a tendency to change over time. Language too is a living thing.
October 3rd, 2011 at 5:00 pm
You clearly do not know anyone who has ever taken drugs. You can snort a line of coke and still have complete control over yourself. There are millions of functional drug users of several kinds of drugs, that's why there's so much drug use. You don't think every person who uses drugs is a homeless addict, do you? It's one thing to make moral claims, relevant or otherwise, about drug use but lying about the effects drugs have is disingenuous and what they did in the 30s. It just shows how out of your element you are when you resort to silly lies. There's lots of reasons why every drug, including caffeine/nicotine/alcohol/pharmaceuticals, should be taken seriously with regard to who takes them and in what amounts, but don't say babytown nonsense that a single use of drugs turns you into an uncontrollable maniac.
October 3rd, 2011 at 6:19 pm
It's also worth noting, that you are dead.
One of the principles of living document proponents is that laws are for the people being affected by them. Sticking to what was originally intended out of a sense of propriety seems nice, but is problematic when what was originally intended doesn't work for the current society actually being affected by these laws.
The downside to the living document side is that it does become a lot more open to interpretation, whereas hewing to original intent is a lot more clear cut. But again, clear cut isn't necessarily best, it's just straight forward.
October 3rd, 2011 at 6:56 pm
The problem with this rather sensible argument is that rather large elephant in the room that is alcohol. A recreational drug with no medical benefit (not when used recreationally, as it is the vast majority of the time), and a whole host of physical and societal ills associated with it, that society and the law find fine to be only minimally regulated.
Personally I'm ambivalent about drugs being legal, or illegal. I can see positives and negatives to most positions, and personally I don't partake of drugs, including alcohol, except for caffeine now and again, which I think most people will agree is fairly minor. My main issue is hypocrisy in the law. If you're going to outlaw things like marijuana or maybe cocaine for reason A, which is a rather justifiable reason, then you really should outlaw alcohol for similar reason A.
The problem becomes that when they tried this, it didn't go over very well, as the majority of people would rather alcohol be legal because it was their drug of choice. To then outlaw other's drugs of choice, even if they aren't any more harmful than alcohol, because you personally find them detestable, just smacks of the tyranny of the majority to me, which is one of the things we have a constitution to avoice.
October 3rd, 2011 at 7:55 pm
I'm surprised that JJ let Harper off so easy in this case. This ruling could easily written off with the application of the notwithstanding clause – why hasn't the PM done so? Is he reluctant to be viewed a skeptic amongst his peers?
October 3rd, 2011 at 10:18 pm
If the public's idea of rightness is what's broken, the whole system is a lost cause anyway. I really don't think that's the situation Canada is in.
October 3rd, 2011 at 10:21 pm
I don't think "political" is the right term here. Are the courts protecting themselves from accusations of bowing to ideological pressure from politicians, or from the more generic idea that reasonable experts can disagree at all?
October 3rd, 2011 at 10:23 pm
Frequency of reflected light is a bit more stable.
October 3rd, 2011 at 10:25 pm
Technically, the clinic is not undermining drug laws because drug laws allow for exceptions and this clinic has qualified for exceptions under those laws for years. They are perhaps undermining the spirit of drug laws, but not the letter.
October 3rd, 2011 at 10:53 pm
It is explicitly stated in the Supreme Court document JJ linked to that they did exactly that, the Supreme Court agreed, and yet it wasn't enough to overturn the outcome of the case.
"Canada has asserted jurisdiction to prohibit the possession and trafficking of illicit drugs by virtue of its power to enact criminal laws under s. 91(27) of the Constitution Act, 1867 [the Notwithstanding Clause]
[...]
Quebec argues that while the federal government is permitted to criminalize the possession and trafficking of illicit drugs in many contexts, prohibiting these drugs in a medical context is ultra vires [beyond the authority of] the federal government.
[...]
The fact that the law at issue in this case has the incidental effect of regulating provincial health institutions does not mean that it is constitutionally invalid. [...] I conclude that they are valid exercises of the criminal law power." http://scc.lexum.org/en/2011/2011scc44/2011scc44….
October 3rd, 2011 at 11:14 pm
This story would make for a great "Ripped from the headlines" episode of Law & Order.
October 4th, 2011 at 1:01 am
Sorry but, that's your best answer? What exactly is your point there? "This thing you didn't explicitly say you thought would happen won't happen"? So what? Indeed, in my experience it's become a popular pro-legalization argument to say that the government could then tax the sale of marijuana. That kind of requires that it _not_ be grown by everyone. Sorry, but I really don't see how that's even kind of an argument against legalization, let alone a debate winner.
October 4th, 2011 at 8:39 am
Both! They have to basically cast themselves as above the idea of normal human opinion.
October 4th, 2011 at 9:45 am
The notwithstanding clause is s. 33 of the Constitution Act, 1982, not s. 91(27) of the Constitution Act, 1867. You are confusing two separate issues in the case. There is a federalism argument and a Charter argument. Try reading the basic wikipedia articles on Canadian constitutional law before reading the case decision that JJ linked. You might actually be less confused then.
October 4th, 2011 at 9:59 am
Its not really a argument against legalization, its more of a argument against the idea that legalizing it will suddenly make it rain puppies and candy from magical rainbows and peace and love for all(okay maybe not that extreme). I find a lot of the "Legalize it and ____ happens" depends on people changing their habits from their normal routine.
The "Government will tax it" is a freebie argument to any drug legalization, and needs to be taken into relation of something similar. I like to point out cigarettes because with personal grown tobacco its not taxed since it shouldn't be sold. If people really were interested in getting cigarettes on the cheap why buy a pack with 400% tax on it plus the company charge.
I see the idea, of people wanting legalization, of any drug, magically causing it to fix some/all the related problems, as a bit of gullibility and naivety about what will actually happen. Like the idea that communism works because the idea is sound, but when it is in practice its been pretty terrible (I need a better comparison there). For me that response is the best because the habit for pro-legalizes is to stomp on any opposition as being short sighted or draconian oppression to drug usage. By pointing out the fact that absolutely nothing would change argues "What's the point of the fight?". It also avoids the ever annoying response, "Don't knock it till you try it" that I hear often when debating drug issues. Especially related to pot.
October 4th, 2011 at 2:26 pm
He asked what the argument was and I explained it doesn't mean its right.
The best way to put it is that the argument that the government makes is that sooner or later the probably that someone can easily go nuts on drugs is too high to allow it to be legal. You cannot ahead of time point out who will go crazy on drugs and who will not. That is why its ban. Again this is the argument.
October 4th, 2011 at 2:29 pm
At least policing the system of a clinic would be easier than drug dealers. A clinic wouldn't go around gunning people in the street thus less crime related to drug dealing. Again the real problem is the crimes that come ALONG with drug dealing. Not so much the users or drug dealers themselves.
October 4th, 2011 at 2:32 pm
So are the writers of many of these laws are dead too. Again if "current society" needs the laws changed that much, simply change it via an amendment. Otherwise it is just an excuse to do what you want. When you tell someone to do something, you expect them to listen, not to reinterpret it. Imagine if we all ran around reinterpret what people tell us in our daily lives. Now imagine a government doing that with the law. No point in having laws.
Again if you don't like the law just amend it.
October 4th, 2011 at 2:35 pm
You know what I mean. People elect people to change the law into what they want. From what I understood Taylor to say was that you have ministerial decision and it forever stays as one. I don't know what a ministerial decision is and that's what I am asking. If it is like a court case decision or is it some amendment to a Constitution?
October 4th, 2011 at 2:39 pm
Remove the exceptions then or make it that exceptions can only be made by some health department or w/e which has to be renewed every so often. Thus Harper can just cancel it once it comes up for renew. There are ways around it. Unless the Supreme Court says its a fundamental human right to your government give you needles.
October 4th, 2011 at 3:12 pm
No, I did not say that.
The premise of the decision was that the ministerial decision to exempt Insite from drug legislation should continue despite the elected government deciding to revoke it.
I disagree with the decision.
October 4th, 2011 at 3:40 pm
I vote – stupidity. So long as there are stupid people, there will always be a demand for cocaine, heroine, etc.
I mean, why care about damaging your brain when your brain is already worthless in the first place?
October 4th, 2011 at 3:58 pm
It was definitely very politically controversial, but this doesn't necessarily mean it has to be legally controversial.
October 4th, 2011 at 6:45 pm
Was it legally controversial?
October 4th, 2011 at 6:48 pm
Is that the case this time? Is the law clear?
October 4th, 2011 at 6:52 pm
Actually, it does require periodical renewal, and the whole controversy arose when Harper rejected their bid for renewal. The Supreme Court decided that, though the renewal process is handled by the federal government, they rejected it based on a factor that was under provincial jurisdiction. I'm a little fuzzy on how that makes any sense, but I can't be sure whether it's the law or the judges who are mixed up.
October 4th, 2011 at 6:58 pm
Alcohol has no medical benefit? It's a pain killer and an antiseptic which has been used as medicine from before written language to the present day.
I say this as a teetotaler.
October 4th, 2011 at 7:01 pm
Sorry. 97(27) 1867 said "notwithstanding" in it, and I jumped to a false conclusion. Thanks for correcting me.
October 4th, 2011 at 7:34 pm
Smartmeters? You mean the electricity monitoring things? Are those controversial over there? Really?
If they were behaving rationally, wouldn't the drug users more likely to drop their needles if they can just get new ones from insite? But, I'd imagine they drop them more because they lose contact with reality than any rational reason?
October 4th, 2011 at 7:37 pm
So then, not just stupid but stupid and aware of it (Or incorrectly convinced of it)? So perhaps there's a need to discourage low self-esteem?
October 4th, 2011 at 7:50 pm
What if the law itself says that it is a "living document"?
That's not the case in the US, I believe, but it is reasonably common in Commonwealth jurisdictions, like Canada, to have a law on how to interpret laws which say something along those lines; as well as requiring judges to twist the meanings of laws so that they don't infringe on 'fundamental rights' etc.
October 4th, 2011 at 7:56 pm
I can see that making sense only if the Province also gets an opportunity to review and renew insite's right to operate as well? Federal systems are complicated and confusing.
Perhaps the other odd thing here is that this was all Executive action; there was no attempt at legislative change, so far as I can see. That seems a frighteningly unilateral way of approaching a 'controversial issue' (TM).
Is that the usual Canadian approach?
October 4th, 2011 at 7:58 pm
It's rather unusual to argue that we ought to restrict food and personal desires, though…
October 4th, 2011 at 11:28 pm
Do not read Wikipedia articles on Canadian anything.
October 5th, 2011 at 2:10 am
An impressive share, I simply given this onto a colleague who was doing somewhat analysis on this. And he in fact bought me breakfast because I found it for him.. smile. So let me reword that: Than for the deal with!
October 5th, 2011 at 9:02 am
If it still fails it doesn't matter if it was easier or harder though.
October 5th, 2011 at 9:24 am
I figured alcohol would either be included under my mention of Legal Drugs, or when I mentioned that even food and water could be harmful. Not much left of an elephant in the room when you drop a tank on it.
Alcohol, and the beverages that contain it, are rather special cases in that they have been used as a painkillers, cleaners, anti-septic, preservatives, and even as food sources throughout time. Its historical effects went beyond "Man being drunk is awesome". Most of the uses of alcohol have been replaced by other chemicals, processes, or technology. Though its still a widely used anti-septic and preservative today. The biggest issue with alcohol these days is that nearly everyone has a 2000 lbs piece of heavy machinery, and a lot of people like to operate it while drunk.
October 5th, 2011 at 11:54 am
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October 5th, 2011 at 1:10 pm
Heh heh, I wasn't planning to. I usually go to law university websites for legal tidbits. My mistake was jumping to a conclusion and not fact-checking it at all. For US law, I usually know constitutional terms without looking them up, but apparently that's not the case with Canadian law.
October 5th, 2011 at 1:13 pm
No, that was an ethical argument rather than a legal one. That's why I added the second post that was a legal principle about government (rather awkwardly) trying to protect public health.
October 5th, 2011 at 5:22 pm
The public's sense of rightness isn't what determines what the courts should decide. If people don't like the decisions of the courts, they talk to their legislators, and have them change the law and/or make the law and/or the constitution more clear and/or more to their liking. For the courts to bow to the will of the public is to invite mob rule.
October 5th, 2011 at 9:36 pm
But people don't buy and consume alcohol for its medical benefits most of the time, they don't even pretend to. It's not like something like robitussin, which contains a fairly powerful hallucinogenic, but it is primarily used for its medicinal effects, symptom alleviation, and thus it's okay being legal. Alcohol is sold primarily recreationally. You mentioned opiates, which have useful medical effects, but can be very dangerous recreationally, so are heavily controlled. Marijuana is a drug that has medicinal uses (pain killer, appetite amplifier), and is used sparingly in those capacities, but is otherwise illegal.
My point is, that the idea that certain drugs are legal because their medicinal effects outweigh potential harm they can cause doesn't really work. The government has no problem both restricting drugs to only being used medically, as well as selling potentially rather dangerous drugs explicitly for recreation. Drug policy has some guiding principles, but it follows them far too loosely for my liking, and as such the list of "okay" drugs and "bad" drugs can look a bit arbitrary at times.
October 5th, 2011 at 10:39 pm
This is what I'm getting at though. Okay, so say pot has a medical use. Will people use it mostly for medicinal or, just like alcohol, mostly recreational? Nothing solved or changed, so no one bothers to change the law.
Also just because something has a medical use doesn't mean its a positive. If the side effects are undesirable then no one will use it medically. Though watching commercials for new pills makes me wonder just what qualifies as undesirable side effects these days. I think the last one I recently saw was some allergy medication that you risk coma and death for among many other possibly side effects. Alcohol got by mostly from no one knowing what it did when it first came around, and then just from sheer proliferation. It was also extremely obvious in the positives it did. While pot seems to have just been smoked recreational or religious without actually giving any extremely obvious benefits.
Odd that these days so many drink alcohol recreational while so many try to find other uses for pot.
October 5th, 2011 at 11:22 pm
So the decision was undemocratic in that it supported the decision of an appointed minister over that of an elected government. Is that it?
Your argument makes good sense to me.
October 6th, 2011 at 12:16 am
I don't think that is the idea of people wanting legalisation, at least not the kind who are going to engage in reasoned debate. I point you again to the tax argument, which you don't really seem to have understood. The argument is that, instead of wasting money on a "war on drugs" that by all accounts is a dismal failure, the government could instead _make_ money by legalising those same drugs and then taxing them. This is an argument _for legalisation_ that is pragmatic, not utopian. I expect that may have more meaning to you than the libertarian notion that things should not be banned just because, even if very little would practically change by legalisation, which you clearly have some difficulty distinguishing from utopianism.
October 6th, 2011 at 10:47 am
Sounds like you guys need the equivalent of a Federalist Society.
For those critics out there, realistically, Judges have opinions too, and there is such a thing as "higher politics" the politics of the philosophy behind the law be it Natural Law, Positivist, or Legal Realist. The public has a right to know what these men and women feel that will have such an impact upon their lives.
October 8th, 2011 at 12:58 am
fine. same goes for cannabis.
October 8th, 2011 at 8:32 pm
I feel this point has been adequately made, but I will just add on:
"Of its last few major rulings [...] all were unanimous, despite the fact that these were undeniably controversial cases regarding matters about which there was no shortage of diverse opinion across the country."
Just because something is politically controversial and divisive does not mean the legal issue is not clear. I don't know if this was more legally complicated than it turned out to be (were there any concurrences, for example), but it could have been very simple. An April 2011 poll showed that 46% of Mississippi Republicans want interracial marriage outlawed, but should that issue ever reach their state's highest court, I would expect the ruling to go down fairly easily.
"No one, not even the conservative judges, supported the government’s contrary case that the public’s right to freedom from the negative effects of legalized hard drug use — or a community that tolerates their use — was equally valid, though this is certainly an argument you hear constantly in Vancouver newspapers, talk radio shows, blogs, and Internet forums."
Maybe it is not a legally compelling argument. JJ, maybe it would be worthwhile to browse the legal community's musings on this ruling, rather than the political community's. Surely Canada has its own Dahlia Lithwick (ignoring the fact that Lithwick was born in Canada).