The Dangers of the Insite Ruling: Judges as experts

Legal battles are always interesting.  People typically cheer the legal system when they agree with the outcome, and they disagree with it or cry judicial activism when they disagree with the outcome.

However, the judiciary is supposed to about the rule of law.  There is a reason why Justice is blind.  It is not about whether you like the outcome or not, but about creating a society based on the rule of law so people understand how it operates and can go about their lives according to its rules.

And so we have the Insite ruling in Canada.  Essentially, Vancouver had opened a safe-injection facility allowing drug users to safely inject themselves with drugs.  The federal government opposed it as these drugs are illegal substances.  The court ruled in favor of the Insite facility.

Now we need to look at their reasoning.  Their reasoning is in reality very dangerous to our democracy.
I fully support Insite and I support the outcome of the decision. 

I'm not a lawyer, but a decision based on the law would have been acceptable.   Something along these lines:

Healthcare in Canada is provincial issue.  The provinces are in charge of healthcare.  Drug addiction is a healthcare issue and so a safe-injection facility can be considered a medical facility falling under provincial jurisdiction which can override federal illicit substances regulations.

That is a legal ruling.  The judges are sticking to their field.  Reading and interpreting legal texts.  This is what judges and lawyers are trained to do.

Yet, this is not how the judges ruled.  Here's a key aspect of their ruling.
It is arbitrary, undermining the very purposes of the CDSA, which include public health and safety.  It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.
Notice here, we have judges weighing benefits and harms of medical issues and greater societal problems.  These are legal judges untrained in these areas.  They are not medical doctors or scientists; nor can they predict the future.  Many would argue that in this case it was 'obvious' that the harm caused by the prohibition outweighed the desire for prohibition.  I'm not arguing that point.  But understand that the repercussions of this law.  You will now have people making cost/benefit arguments in front of judges who have no training in such fields.  In many cases the scientific evidence will be vague or not there.  These judges will be left to arbitrarily predict and weigh costs and benefits based on their own personal biases.

A classic example of this refer to the United States supreme court where Justice Breyer dissents against school choice.

Essentially his 'logic' goes like this.
The US constitution has freedom of religion. 
The purpose of this is to prevent religious strife and violence.
School choice will segregate people by religion
This will result in religious strife.
Therefore we can ban school choice...

To some this seems straightforward.  But it all rests on two gigantic assumptions.

1. School choice will segregate people by religion
2. This will result in religious strife.
 Notice the danger here.  Much like the Insite ruling, he is making decision outside his legal areas of expertise.
He just assumes that school choice will result in segregation of people by religion.
He just assumes this will result in religious strife.

Now in the insite case, the cost/benefit analysis might have been backed by 'more science', but the legal rational remains the same.  We have judges trying to predict outcomes in the future.  We have judges injecting their own personal belief systems.  It completely destroys the rule of law.

There is little conclusive evidence that school choice causes religious violence.  Bryer doesn't need to look that far in life.  Just look North to Canada.  Both British Columbia and Alberta have school choice programs.  Are these two provinces experiencing any more religious violence than Ontario or provinces without school choice?  One could make an equally compelling rational argument that school choice actually decreases strife.  It is known that people will literally leave their community to be in a 'good school'.  In the US, this is often know as 'white flight'.  Parents will do a lot for their kids.  It can be argued that school choice would allow families to stay in the community and simply send their kids to a different school.  Denying school choice forces families to actually segregate themselves more by moving out of the community entirely just so their kids can be in a 'better school'.

The whole point is that there is no conclusive scientific proof or conclusive rationality either way.  Yet, here we have Justice Bryer thinking he can predict the future and is an expert in religion, sociology, class, education... and to base his ruling on this assumption. 

To call this the rule of law is absurd and the insite ruling is the downfall of the rule of law in Canada.
From now on, you will have people bringing cost/benefit cases to the court in areas.  Rarely will there be absolute scientific proof either way, but judges will be free to assume whatever outcomes they want and rule not according to the rule of law, but rule according to the cost/benefit to society as they see fit.  Many will say, it's a slippery slope argument... well it is... and as we see from Justice Bryer... one that the legal profession will overstep.  Similarly, we have the cases of the Canadian Human Rights Tribunals which have become their own monster trampling over free speech... once again... removing the rule of law, in favor of judges trying to predict outcomes and harms and benefits.

I'm all for the Insite facility as the provinces right to run Healthcare in the manner it wishes.  But this ruling opens Pandora's box and removes the rule of law from society in favor of rule by man (arbitrary judgments).  These are issues that must be handled by the democratic and legislative process.
I don't agree with Harper's tough on crime and drugs approach.  But the way to change that is to change governments, lobby, protest, have the provinces fight back for provincial rights...

We'll regret this ruling as the downfall of the rule of law in Canada.


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