1. The Federalism Question, or Lack Thereof
Scholars and students of Canadian politics and government are fixated on federalism. They should be, federalism being one of the founding pillars of Canadian democracy. That being said, however, I feel that we are fixated on federalism in a very Canadian way.
Specifically, when interrogating the question of “why Federalism?”, we as students of federalism find the answer in the form of federalism that surrounds us. It’s just self-evident that federalism is a matter of reconciling differences within a united national framework. The goal, as it is, aims for a unified and stable nation-state forged from distinct regional identities that are in turn granted a certain degree of autonomy within that national framework.
This stream of thought being the dominant one, discussions and examinations of federalism as a system of governance in Canada appears to maintain an almost exclusive focus on the sharing of power between the two levels (provincial and federal) of government and reconciling differences. The Québec question occupies the lion’s share of scholarly attention within this field, followed by the aforementioned attempt to understand how powers can be most effectively shared between the federal and provincial levels of government and precisely how the regional, economic, and cultural diversity present among Canada’s provinces can be maintained within a unified national framework. There’s also the emerging concern (and by emerging I mean over the last few decades) over devolution and decentralization of power to the provincial governments.
Just as important as where the attention goes is where it is absent. There has been little of the American approach to federalism, namely one which assesses this form of governance from a standpoint of political philosophy rather than reconciling diversity. There is little to no attempt to consider whether or not federalism is simply a better manner of governing that yields better policy outcomes through decentralization and autonomy of subnational units. Without the question of irreconcilable cultural and ethnic differences, is federalism still to be the preferred system of governance and management?
The case is also made that federalism fosters innovation through granting autonomy to subunits. Not being confined to a single manner of developing and implementing policy, states, provinces, etc. are accorded the freedom to take on bold ventures in various policy areas. Should these ventures succeed, they are likely to be imitated in other parts of the federation. In Canada, our go to example of such an instance is the adoption of universal healthcare in Saskatchewan, which later became a national policy. It is curious, however, that this aspect of federalism remains underemphasized among students of Canadian government. It will likely get a passing mention in undergraduate courses during the compulsory federalism lecture, but when we approach supposedly in-depth examinations of Canadian federalism, scholars revert back to the conventional questions and issues.
Also absent, though gradually less so in recent years, is the place of Canadian cities within this broader framework. Historically, Canadian cities have primarily been treated as service providers or administrative bodies, carrying out delegated tasks handed down from their provincial overlords. There is little real policy-making at this level of government and it is typically not to be expected that municipalities will carry out any of the potentially innovative solutions and ideas alluded to in the previous paragraph. It is only recently, as major urban areas become more populated and begin to significantly drive economic growth that their place within greater frameworks of governance has been reassessed, though we still have a long way to go.
2. The Decision
The Insite decision (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44), handed down this past Friday by the Supreme Court of Canada, implicitly raises those questions that are less in demand within the broader debates of Canadian federalism, specifically, the potential to foster innovation and the role of cities and local government in doing so. The decision does not make these matters explicit, as the Court is not assessing the matter of division of powers or the soundness of policy, but rather whether nor not the failure to grant Insite an exemption from particular provisions of the Canadian Drug and Substances Act (CDSA) violated the s.7 Charter Rights of those using the clinic.
I will not delve into every specific facet of this case, as there are better summaries in other places, such as Emmett Macfarlane’s coverage in McLean’s. To state it as briefly as possible, those running the Insite clinic, which included supervised injection for addicts in the Downtown Eastside of Vancouver, were technically in violation of the CDSA, as they possessed narcotics, possession being defined rather broadly in the Act. S.56 of the CDSA allows for the Minister of Health to grant an exemption from the Act if doing so is in accordance with a scientific purpose or is in the public interest.
The refusal to grant the exemption was ruled to have been in conflict with the public interest, given the number of lives that Insite saved through its services and the benefits that it has yielded. The Ottawa Citizen applauded the decision, making specific reference to the contributions Insite has made to the community as a whole:
Research has found that Insite has numerous benefits, among them a reduction of public injections, needle sharing and neighbourhood litter. It also found that patients at the site increased their use of detox and long-term addiction treatment and that the program has saved taxpayers millions every year and, crucially, saved lives.
It was the case, in the eyes of the Court, that not grating the exemption was simply to put more individuals in harm’s way, thus violating their s.7 Charter Rights, to which all implementation of policy must conform. Macfarlane is right to point out the similarity to the Chaoulli decision, wherein Québec’s ban on private health insurance was declared unconstitutional on the grounds that it led to a compromise in the safety of patients in that province.
3. The Creative City
Though the decision was made by the Court primarily on Charter grounds, the ruling makes implicit reference to those aspects fo the federalism question that I previously claimed were too often ignored. First, this decision potentially opens the floodgates for local and community groups across the country to potentially begin operating programs similar to Insite. Community groups in Toronto have begun to raise a rallying call to operate safe injection sites in the city as part of a scheme of comprehensive treatment for addiction, though Mayor Ford apparently is not keen on the idea at this time. Nonetheless, the Court affirmed in its decision that local government, in collaboration with other levels, is indeed free to begin addressing the issue with a guarantee of exemption from the Minister of Health.
This is not necessarily a massive step forward for municipalities, as the decision was confined to one policy area alone, that of treating addiction through safe injection sites. In considering this one policy area, however, the gain for cities is significant. The Court recognized right off the top that “Health authorities recognized that creative solutions would be required to address the needs of the population of the DTES (Downtown East Side), a marginalized population with complex mental, physical, and emotional health issues.” So long as cities and local governments are able to demonstrate that they are serving the public interest and are aiding in saving lives and solving the problem of addiction, they need not be confined to a one size fits all approach to the problem, one which might likely entail heavier criminal punishment and prosecution.
The decision is a victory for local communities in that they have won the right to treat these complex issues in a manner that is sensitive to the local context. Cities, like Vancouver did in this case, may try something entirely new and creative in confronting an epidemic of disease and addiction and it may pay off. It certainly did pay off in this instance, and as mentioned, the idea may be set to spread to other municipalities across Canada. Empowering local government in this way may yet lead to further innovation and and greater victories in the war on addiction and related diseases.
Insite also illuminates, though not explicitly, a vital fact of policy-making, at least where the problem at hand is concerned, namely that local government cannot be ignored in this fight. It is at this level that these issues are most deeply felt and manifested, in crime, disease, and death, and top down policies from higher levels of government are simply not going to solve the problem on their own. Local governments and communities are going to have to be proactive in devising and implementing solutions “on the ground” and carrying out the actions that will actually fight addiction and drug use, just as Insite has and continues to do in Vancouver. As a result of this decision, they have won the right to do so.
Finally, there is the matter of innovation, to which I’ve alluded throughout. As the Court recognized in the portion of the decision I quoted, the problem of addiction in the DTES has often reached epidemic proportions and creative solutions were desperately needed. This decision was a triumph for newer and more compassionate approaches to a problem that has continuously plagued the City of Vancouver. Rather than holding fast to more confrontational and hard line approaches like punishment and institutionalization, Vancouver took a different approach and the SCC upheld the right of the city to do so. Chantal Hebert remarked that the ruling represented a clash between Stephen Harper’s law and order agenda and the more flexible approach represented by Insite. In this instance, it was the latter that won, and the doors are opened for other cities and provinces to follow Vancouver’s example.
Aside from the legal or Charter issue upon which the decision was made, I feel that the most welcoming and important implication of the decision is precisely this victory for creative and local action. It’s easy to cling to what we feel are certain moral duties and principles, such as that those who are addicted are breaking the law and must pay the price or that by allowing supervised injection we are simply enabling the habit. More thorough examination shows, however, and the Court recognized that Insite has incurred little social cost for the city while yielding major gains in the fight against addiction and disease.
This is what truly matters, solving problems rather than acting on principles that we may believe are right for whatever reason but do absolutely nothing to address the issue. Insite took a bold approach to solving a problem and this approach was validated by the Supreme Court of Canada. We are justified in holding out hope that this victory for local communities and innovation, compassion and investment in our fellow citizen rather than condemnation and punishment, will serve as the foundation for the fulfillment of one of the great promises of federalism and the sharing of power between different levels of government: that the local level will forge new and original paths to old problems to be followed by the rest of the country.