I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?

But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.

Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.

The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.

In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.

The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.

Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.

Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?

Pulat Yunusov is a Toronto litigation lawyer.

 

(Post sponsored by AdviceScene)