Is the Charter ‘applied ethics’ in law’s clothing?

TheGlobeandMail.com – news/commentary/opinion
Published Monday, Nov. 14, 2011.   Margaret Somerville

The interaction of law and ethics is increasingly overt in developing and implementing social and public policy, especially in contexts that affect human life and well-being such as reproductive technologies, public health, drug addiction, end-of-life decision-making and prostitution. The Supreme Court’s judgment in the Insite case manifests this interaction, and examining it from that perspective provides insight.

Insite is a medically supervised injection site in Vancouver’s Downtown Eastside, where drug addiction, HIV and hepatitis C infections constitute a public health crisis. In 2003, the federal health minister granted the professionals operating the clinic an exemption under the Controlled Drugs and Substances Act, giving them immunity from prosecution for drug possession and trafficking. In 2008, the minister revoked the exemption, meaning the clinic would have to close.

The Supreme Court unanimously ruled that the minister’s exercise of his discretion must comply with Charter of Rights requirements, and it did not. The court found the failure to grant an exemption breached drug users’ Section 7 rights to “life, liberty and security of the person,” because it put their health and life at risk.

The refusal was “arbitrary” because it undermined the law’s purpose – protecting health and public safety. And it was “grossly disproportionate” because the clinic “was proven to save lives with no discernible negative impact on the public health and safety.” The harm to drug addicts far outweighed any benefits the refusal would engender.

I suggest the Supreme Court is using the Charter to implement ethics at an individual case level, while keeping the law intact at the general level – it ruled the act itself was constitutionally valid – much as the old courts of equity did. When the King’s courts’ strict application of the common law caused unconscionable outcomes for unsuccessful litigants, equity, as the “court of conscience,” acted in personam to prohibit victorious parties from enforcing their judgments. It put a “gloss on the common law.” Although operating in a very different way legally, the Charter can be viewed as allowing 21st-century judges to realize similar goals.

To judge whether this is a good development, we need to understand some recent history. In the early 1970s, two new realities caused the relation between law and ethics to change. We could no longer simply assume that we all bought into the same shared societal values or that the law reflected and upheld shared values. The Charter, enacted in 1982, might have been one response, in that it articulated our shared values and ethics.

Second, emerging techno-science faced us with unprecedented life and death issues, starting with heart transplants and augmented by reproductive technologies. The law couldn’t cope. “Applied ethics,” as a way to supplement the law, emerged as a response. At first, ethics was used by courts and legislatures as an add-on to the law, but, around 1990, they began looking first to ethics and second to whether the law complied with the ethics.

As in all statements of principle on which a wide societal consensus is sought, the Charter is couched in broad and general language. Variance and disagreement enter at the level of the interpretation and application of its provisions. Criticism of the Insite judgment manifests such disagreement.

It’s seen by some as a court overriding government policy-making and interfering with executive discretion, and introducing uncertainty into the law’s application. As opening up Charter challenges to a wider range of executive decision-making and, perhaps, a wider range of bases, such as social and economic considerations, on which to rule legislation is in breach of the Charter. And as bad ethics. Just because a court considers ethics doesn’t mean what it decides is necessarily ethically correct. And, as we know, we don’t all agree on ethics.

Or the judgment can be seen as the court using the Charter in a legally sophisticated and complex way to reach an ethically acceptable outcome.

How the courts interpret Charter rights could depend on whether they view the Charter as a legal articulation and embedding of fundamental ethical norms and principles in the Constitution and intended to ensure that state actions are ethical, not just legal.

So is the Charter really “applied ethics” in law’s clothing?

Margaret Somerville is the founding director of the Centre for Medicine, Ethics and Law at McGill University.

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