Monthly Archives: March 2014

Why INSITE is a not a good case study of evidence-based decision making.

Calls for evidence-based policy are routine.  And in Canada, the saga of the Vancouver safe injection facility INSITE is cited as an example of where politicians tried to ignore the evidence.  Consider two recent examples.

Source: iPolitics

Source: iPolitics

On Tuesday my university hosted a panel discussion by leading politicians in federal politics with an overriding theme of why young people should engage in the electoral process and, if nothing else, vote.  A laudable effort to be sure.  As is common with this type of event there were the usual questions of the audience.  Interestingly enough, the first such question asked the assembled leaders to comment on the place of evidence-based policy making.  Needless to say, all were quick to endorse the idea, some with more nuance than others.  Of particular interest were the comments of the New Democratic Party leader Thomas Mulcair who went out of his way to point to the efforts by the current Conservative government to shut down INSITE as an example of ignoring evidence in policy making.

Consider as well a recent blog post by my University of Ottawa colleague Scott Findlay where he argues that the Supreme Court of Canada’s decision to overrule the Government and insist that INSITE must remain open was about the proper use of evidence.  In his words, “evidence was critical to the Court’s decision”.  (Note that Findlay’s larger argument is not so much for evidence-based policy making as it is for transparency and openness).

Does this mean that the story of INSITE is the story of how evidence can and should influence public policy?  I think not.

As I argued in a paper in the Journal of Urban Health a few years ago, that INSITE continues to operate is not the result of a straightforward application of evidence to a public health intervention. In that article I argued that, on the contrary, “INSITE is the result of coalition building, the mobilization of public opinion, lobbying, and political and ideational struggle.” Without a doubt the use of evidence by the Supreme Court of Canada was a critical part of the story.  But to focus on that is to miss the fact that INSITE exists as a result of a complex combination of factors of which scientific evidence is but one.

hb_coverWhat is more, for many policy problems, this is the predominant pattern.  Evidence does play a role in policy making but it is most influential, as Roger Pielke puts it in his book The Honest Broker: Making Sense of Science in Policy and Politics, “in circumstances where the scope of choice is fixed and the decision-maker has a clearly defined technical question”. So, it is not that scientific evidence is not important, it is that its role is variable.  In other words, while we may want evidence-based decision making, only some decisions can be, or for that matter should be based on evidence.



The Supreme Court as a window on federalism (again)

So, the Supreme Court of Canada has ruled on the constitutional validity of the appointment of Mr. Justice Nadon.  In essence, the majority took the position that to be appointed to the Court from Quebec a person must be a current member of the Quebec Bar or a sitting judge in Quebec.  Marc Nadon was neither at the time of his appointment so he was deemed to be ineligible.


Source: Canadian Press Archive/ La Presse

In their decision the majority wrote that the legislation creating the Supreme Court requires that three judges be from Quebec (Section 6).  The go on to argue that: “The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”

In an analysis of the Nadon decision University of Montreal law professor Jean Leclair goes a bit further and argues that: “Bref, une compétence technique en droit civil ne suffit pas pour bien représenter le Québec. La légitimité de la Cour suprême, déjà l’objet d’une démonisation au Québec, requiert du candidat qu’il puisse se réclamer d’une appartenance étroite et contemporaine à l’univers québécois.”

In a highly critical review of the decision, Andrew Coyne disagrees with the reasoning of the majority, but concludes that “If ever there were an argument for a more robust process of legislative review of such appointments, this is it”.

I agree.

But legislative review of appointments need not, and indeed should not, be limited to the House of Commons.  As I suggested a few weeks ago on this blog, I wrote “Had the Harper government been required to publicly and formally consult with the Quebec government, it is almost certain that the person nominated would not have been so controversial with the risk of undermining the legitimacy of future decisions by the Supreme Court of Canada.”

A fulsome discussion of the merits of a provincial role in nominations to the Supreme Court of Canada is unlikely in the near term.  But it is plausible to imagine a Liberal government in Ottawa and a Liberal government in Quebec City.  It is also plausible to imagine that a new federal government will want to improve on the current flawed process of naming judges to the highest court in the land.  In anticipation, best perhaps to read up on both the Meech Lake Accord and on the general matter of how we name judges to the Supreme Court of Canada.