Pubdate: Tue, 11 Oct 2011
Source: Globe and Mail (Canada)
Copyright: 2011 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin, Justice Reporter

LANDMARK INSITE DECISION THREATENS PEACE BETWEEN JUDGES AND
LEGISLATORS

A confrontation is brewing between the Harper government and Canadian
courts as ripples spread from the Supreme Court decision ordering
Ottawa to keep its hands off a Vancouver supervised injection site.

The Insite ruling forged a new means to strike down laws if there is
scientific or statistical evidence showing that a regulation worsened
the danger that an individual or group faces.

In so doing, it gave judges a new tool for activism and ensured that
legal waves would surge across several important Charter of Rights
cases already in the courts, and spawn many new challenges. Among the
issues likely to be affected, say judges, lawyers and academics, are
laws governing assisted suicide, prostitution and mandatory minimum
prison sentences.

The test crafted by the court - measuring harm prevented against the
harm a provision creates - elevated scientific evidence over laws
found to be "arbitrary" and "grossly disproportionate," and could be
applied to a spectrum of policies from health care to the deportation
of refugees.

"It is a sweeping decision," said a senior judge who asked to remain
anonymous. "They have opened up a can of worms when they talk about
disproportionality. And the Supreme Court has not really told us much
about how we are to sort the good claims from the bad. The result is
that there will be many claims and many tough questions to worry over."

Once trial judges begin applying the Insite decision to Charter
challenges, they may resurrect a burning debate about judicial
activism, the judge said. "It is going to call on us to weigh policies
and their effects - which is not our normal fare," he said. "It will
force us to look at policies and make difficult qualitative judgments
about their effects. That is something that leaves a lot of us
uncomfortable."

Coming from a court with a reputation for caution and deference to
Parliament, the Insite judgment was heady stuff.

"The Insite ruling is a warning to the government that any of its laws
or policies which restrict liberty or threaten lives or health are
vulnerable to Charter challenge, if compelling evidence calls into
question their effectiveness in achieving their stated goals," said
Bruce Ryder, a law professor at York University's Osgoode Hall Law
School.

In a vivid illustration of the decision's potential reach, the lawyer
behind a major challenge to the country's prostitution laws, Alan
Young, said he has been waiting to hear from the Ontario Court of
Appeal that it wants to reopen his case in light of the Insite
decision. Having heard oral arguments in June, the three-judge panel
was expected to release its decision in the case - known as Bedford -
any day now.

"It would be strange if they didn't because this was the highest court
in the country speaking," Prof. Young said. "I would be very pleased
if they decide to entertain written submissions on the impact of the
case. There is no question that Insite has very heavy bearing and
supports what we are saying 100 per cent."

Two other ongoing cases likely to be affected are a B.C. challenge to
the law that prohibits assisted suicide and a challenge to polygamy
laws.

Clayton Ruby, a prominent Toronto lawyer, said that the Insite ruling
drew a line in the sand to warn the government not to go too far in
imposing its ideology. "When government policy affects liberty and
relies upon politics to shunt aside real scientific evidence, the
court will step in," Mr. Ruby said.

Wayne MacKay, a Dalhousie University law professor, predicted that
critics are going to denigrate the Insite judgment as being "a
slippery slope to a new form of judicial activism."

University of Toronto law professor Kent Roach said the success of
Charter litigation is going to hang on being able to quantify the harm
that results from a questionable law.

"The whole area of gross disproportionality and arbitrariness is a
growth industry in Charter adjudication," Prof. Roach said. "The big
question is whether the harm caused by other laws - including the
prostitution ones - will be so great that the court will find them
grossly disproportionate to their objectives."

Supreme Court ruling puts other laws in jeopardy

The key phrases in the Supreme Court's Insite ruling - "arbitrary" and
"grossly disproportionate" - will be invoked in future attacks on laws
and government policy, raising the questions: Arbitrary in whose view?
And grossly disproportionate to what?

Courts will scrutinize what legislators were attempting to do when
they drafted a law and whether their efforts precipitated an even
worse situation for those affected by it, said Jamie Cameron, a
Charter expert at York University's Osgoode Hall Law School.

"Does the law make sense?" she said. "Does it cause more problems than
it solves? Does it create rather than avoid danger? Does it fail
dismally to achieve its objectives? Do the costs of enforcement far
outweigh the benefits achieved?"

Laws that could be in jeopardy include everything from privatized
health-care regulations to prohibitions against assisted suicide.
Activists in the cycling community have even begun to discuss using
the Insite case to challenge bike-lane restrictions which expose
cyclists to a greater risk of injury or death.

In Ottawa, the Harper government could find portions of its
tough-on-crime and sentencing measures facing a rough ride in the
courts. "To the extent that they are driven by ideology in the face of
competing social-science evidence, they may be vulnerable," said Bruce
Ryder, another Osgoode Hall law professor.

Lawyers in Vancouver are also certain to invoke the Insite judgment on
behalf of Gloria Taylor, a seriously ill Vancouver woman fighting for
the right to end her life. "It seems that what will really be at play
is whether newer social-science evidence showing that the risks of
involuntary euthanasia can be managed tilts the balance away from a
blanket prohibition on assisted suicide," said Carissima Mathen, a
University of Ottawa law professor.

As for polygamy laws, Charter challengers face the somewhat different
task of showing that the purported arbitrariness of the law has
backfired. They will need to proffer research that documents corrosive
effects the law visits on polygamous family units, as well as harm
that social castigation has on family members.

Prof. Mathen said the polygamy law has an Achilles heel - its
arbitrary targeting of relationships based solely on the number of
people in them. This amounts to discrimination against a lifestyle
choice based on nothing more than moral distaste, she said. The law is
also vulnerable because instead of going after "harmful" polygamous
relationships, he said, it catches every polygamous relationship in
the same net. 
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