Public Law 505 Insite Case

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Introduction

This page will present different reasoning that lead to the decision in Canada (Attorney General) v. PHS Community Services Society. The case concerned a safe injection site in Vancouver which can be seen as a place to safely control an addiction or an area which promotes drug use/ in risk of violating s 4(1) and 5(1) of the CDSA. Insite was obligated to apply for an exemption for medical and scientific purposed from the CDSA.

The question remained would interjurisdictional immunity protect the province from violating the international criminal sanction? Was delivery of health care services a protected core of provincial power?

Facts

Drug use by injection reached peak levels and government agreed to assist drug users at all levels of treatment of their disease. This included supervised drug consumption facilities for (safe injection facility). The injection facility was granted an exemption from the prohibition of possessing and trafficking controlled substances. The exemption given to the facility was temporary and they applied for a new one before it expired in 2008 (they were given two temporary extensions in 2006 and 2007). In 2008 the exemption application was denied. The trial juddge held that two sections of the CDSA act, which gives the Minister of Health discretion to grant exemptions, violated s7 of the Charter. They then permitted the facility to continue to operate free from federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of interjurisdictional immunity applied.

The Principle of Interjurisdictinal Immunity and Federalism

A law that does have a precise meaning. A law that applies to a matter outside the jurisdiction of the enacting legislative body. This can be done in three ways: By examining the validity of the law, the applicability of the law, and the operation of the law.


First, it could be argued that the law is invalid because the “pith and substance” concerns something that is outside the jurisdiction of the enacting body.


A second way of attacking is to acknowledge that the law is valid in most of its applications but, to argue that the law should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body.


A third, way of attacking a law that applies to a matter outside the jurisdiction of the enacting body is to argue that the law is inoperative through the doctrine of Federal Paramountcy. Binnie and Lebel JJ also advise that it is preferable that courts resolve jurisdictional conflicts in new areas, if possible, with the doctrine of federal paramountcy. The doctrine states that where there is inconsistency between valid federal and provincial laws the federal law should prevail. In this case, the CDSA conflicts with Insite's administration of illegal substances and so the federal law would prevail and render Insite's operation in violation of the CDSA.

Charter Section 7 Application

Did the ban of Insite breach section 7 of the Charter which protects life, liberty and security of a person by denying access to a safe medical facility?

  • The trial judge found that s 4(1) and 5(1) of the CDSA violated Insite's s 7 Charter rights because they "arbitrarily prohibited the management of addiction and its associated risks"
  • The court unanimously dismissed the appeal and cross-appeal on the basis of a s 7 argument and found no division of powers flaw in the CDSA
  • CDSA does not violate s. 7 of the Charter, but the decision taken by the Minister denying an application for an exemption for Insite under the CDSA did violate s. 7 and it was not justified under s. 1 of the Charter. Therefore, Court ordered the Minister to grant the exemption
  • The reasoning for granting the exemption and future exemptions was due to the facility being able to "decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety"

Preferred Reasoning

I believe that federal paramountcy need not apply here in its rigid application.This doctrine has an unbalanced application because it protects federally regulated entities from provincial regulation but not vice versa. Instead, cooperative federalism is an appropriate method to resolve the conflicting legislation as it is a more modern and flexible approach. Huddart JA in PHS Community Services Society accepts that the CDSA is valid criminal law but also makes clear that Insite's provision of medical treatment to its community is at the core of its purpose as a hospital and therefore at the core of provincial jurisdiction over hospitals. She maps that core very narrowly and precisely. Assigning "hospitals” under provincial jurisdiction by section 92(7) of the Constitution Act, 1867 protects them from federal paramountcy. Co-operative federalism is facilitated rather than impeded by the interjurisdictional immunity doctrine because it allows room for the validity of both the medical and criminal aspects of "the approach to the intractable problem [of] dangerous substances." Providing a persuasive argument in favour of protecting BC’s exclusive provincial powers.

However Interjurisdictional Immunity cases do not concern provincial laws that target federal undertakings. However where a provincial law was held inapplicable a law of general application was valid in its application.


The theory behind the results is that each head of federal power not only grants power to the federal Parliament, being exclusive, denies power to the provincial Legislature. In general, interjurisdictional immunity should be reserved for those heads of power that deal with federal issues.

SCC's Decision

The appeal and cross-appeal were dismissed and the Minister of Health is ordered to grant an exemption to the facility under s56 of the CDSA. The court dismissed the appeal and cross-appeal on the basis of a s 7 argument, although it found no division of powers flaw in the CDSA. The rejected application of the doctrine of jurisdictional immunity and the acknowledgment that delivery of health care services does not constitute a protected core was surprising.


Reasoning/analysis

The prohibiting drug possession engages drug users liberty interests and prohibiting possession at Insite engages their rights to life and security of the person. However, because s56 of the CDSA gives the minister a broad discretion to grant exemptions from the application of the CDSA, s4(1) of the CDSA did not violate s7 of the Charter. S7 acts as a safety net from applying where it would disproportionate in its effects. However, the discretion of the Minister of Health is not absolute and must conform to the Charter. If it is not in conformity with the Charter, then the Minister’s discretion has been exercised unconstitutionally. The Minister’s failure to grant s56 exemption engaged the claimant’s s7 rights and went against the principles of fundamental justice. Arguably, because during the 8 years of operation, Insite has proven to save lives without a discernible negative impact on the public safety and health objectives of Canada. Public safety in relation to s7 of the Charter was therefore seen to be the principal reason for Insite's permitted existence.

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