Tuesday, October 11, 2011

The Insite Decision and the Future of Charter challenges

In a landmark Supreme Court of Canada decision, the federal government was ordered to stop interfering with Vancouver's controversial supervised drug injection clinic known as Insite.
In this decision, the Supreme Court opened the door to striking down laws if there is scientific evidence or statistical data demonstrating that a regulation worsens the danger an individual or group faces. This decision will no doubt be referenced widely in future Charter challenges.

According to Bruce Ryder, law professor at Osgoode Hall Law School, in a Globe and Mail article, "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". In the same article, University of Toronto law professor Kent Roach states that the success of future Charter litigation hangs on being able to quantify the harm that results from a questionable law.

As a result of this Insite decision, a variety of laws could be in jeopardy, including health care regulations that ban or limit privatized health care. In fact, Shaun Francis, chairman and CEO of Medcan, North America's largest preventive health clinic, has already suggested that if the "right to health" noted in the Insite decision allows "Canadian junkies to shoot their drugs under medical supervision, doesn't the same right to health allow Canadian parents to raise their kids under medical supervision? And if the public system can’t guarantee that right, don’t those parents have the right to ensure the health of their babies by paying a little extra?".

Here Shaun Francis is referencing the Mom & Baby Depot that was run by Dr. Karen Dockerill, who is facing disciplinary proceedings before the Ontario College of Physicians and Surgeons for dishonourable conduct related to charging patients an annual $1,500 fee for a host of baby-related services, including two-hour appointments with her and her staff. The Canadian Constitution Foundation has written on the Mom & Baby Depot.

In the Insite decision, the Supreme Court was criticizing the government’s attempts to close Insite because it created marked health benefits for its community of users “with no discernable negative impact on the public safety and health objectives of Canada.” The same can be said for innovative private health care practices being offered by such doctors as Dr. Dockerill.

The Canadian Constitution Foundation will reference this decision in a range of cases in our docket including, our challenge to the prohibition against the purchase of private health insurance in Ontario, and our appeal of the recent judicial decision that went against our client, raw milk dairy farmer Michael Schmidt, etc.

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