Course:Canadian Public Law - Group 3 Review Exercise - Insite and the Division of Powers
| Canadian Public Law | |
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| LAW 505 | |
| Section: | 002 |
| Instructor: | Robert Danay |
| Email: | rdanay@mail.ubc.ca |
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| Course Discussion | |
Imagine you are a judge at the Supreme Court of Canada. How do you resolve the federalism issue in the appeal of the PHS case?
1. The concept of federalism has existed since the confederation of Canada and the division of powers in Canada. The appeal of PHS has highlighted a number of issues, I will focus on the concept of federalism.
2. There has been much overlap between provincial and federal powers, but this appeal has exemplified the need for clarification by this court on the matter of federalism.
3. Let us now review the pertinent case law on the division of legislative powers between the provincial and federal governments.
4. This court discussed the concept of federalism and the balance between provincial and federal legislative power in Canadian Western Bank at paras. 22 to 24:
22: Federalism was the legal response of the framers of the Constitution to the political and cultural realities that existed at Confederation. It thus represented a legal recognition of the diversity of the original members. The division of powers, one of the basic components of federalism, was designed to uphold this diversity within a single nation. Broad powers were conferred on provincial legislatures, while at the same time Canada's unity was ensured by reserving to Parliament powers better exercised in relation to the country as a whole. Each head of power was assigned to the level of government best placed to exercise the power. The fundamental objectives of federalism were, and still are, to reconcile unity with diversity, promote democratic participation by reserving meaningful powers to the local or regional level and to foster co-operation among governments and legislatures for the common good.
23: To attain these objectives, a certain degree of predictability with regard to the division of powers between Parliament and the provincial legislatures is essential. For this reason, the powers of each of these levels of government were enumerated in ss. 91 and 92 of the Constitution Act, 1867 or provided for elsewhere in that Act. As is true of any other part of our Constitution -- this "living tree" as it is described in the famous image from Edwards v. Attorney-General for Canada, reflex, [1930] A.C. 124 (P.C.), at p. 136 -- the interpretation of these powers and of how they interrelate must evolve and must be tailored to the changing political and cultural realities of Canadian society. It is also important to note that the fundamental principles of our constitutional order, which include federalism, continue to guide the definition and application of the powers as well as their interplay. Thus, the very functioning of Canada's federal system must continually be reassessed in light of the fundamental values it was designed to serve.
24: As the final arbiters of the division of powers, the courts have developed certain constitutional doctrines, which, like the interpretations of the powers to which they apply, are based on the guiding principles of our constitutional order. The constitutional doctrines permit an appropriate balance to be struck in the recognition and management of the inevitable overlaps in rules made at the two levels of legislative power, while recognizing the need to preserve sufficient predictability in the operation of the division of powers. The doctrines must also be designed to reconcile the legitimate diversity of regional experimentation with the need for national unity. Finally, they must include a recognition.
5. At the British Columbia Court of Appeal, the Health Authority intervened in support of the cross appeals on the division of powers issue. The Attorney General of British Columbia agrees with the respondents on the division of powers issue, arguing it is for the Province alone to make decisions relating to the provision of health care services in response to local health needs. He seeks an order that “the Controlled Drugs and Substances Act, properly interpreted, does not restrict the delivery of supervised injection and other legitimate health services by a provincially-authorized and regulated facility such as Insite.”
6. It is unfortunate that a history dating back over one hundred years of cooperative division of powers has ended at this court.
7. I concur with the majority of the British Columbia Court of Appeals finding that the failure to permit a role for provincial health authorities in determining the nature and extent of exemptions, perhaps by delegation of the power to make exemptions considered appropriate for the public health needs for which the provincial government bears responsibility, violates the division of powers.
8. I commend both parties for presenting very thorough and detailed arguments. It gives me no great pleasure in ruling in favour of one party. This case has torn the province of British Columbia and Canada on this matter.
9. A number of doctrines have been submitted by both parties to determine whether the provincial or federal government should have the right to legislate in regards to injection sites.
10. I concur with the claimants that section 7 of the Charter of Rights and Freedoms is engaged – to find otherwise would lead to the imprisonment of those contravening the CDSA. I find that the dominant feature of the Controlled Drugs and Substance Act apply directly to provincial health activities.
'Reflecting on a range of perspectives, including those raised by Lessard, what values are most at stake when applying the division of powers analysis in this case? You might consider issues such as the role of “cooperative” federalism in a democracy, the role of local community activism in democratic politics, and the contested characterization of the “facts” in this case.
The Insite provides a safe and health focused premises for drug users. The site also provides a resource for those seeking to use harm reduction approach. Initially, the site operated under a special exemption of s.56 of the Controlled Drugs and Substances Act. The site had been a focus of more than 30 studies, the research from those studies indicated array of benefits that include the following but are not limited to:
• Reduction in public injecting and syringe sharing
• Increase in the use of detoxification services
• Increase in addiction treatment among patients
• Decrease in public drug use
The Insite was strongly supported by local masses and politicians. 95% of the users of Insite also rated the premises excellent or good.
The argument against Insite was based on the conviction that addiction is fundamentally an unacceptable personal choice made by the individual despite the fact that enormous amount of evidence exists supporting addiction as a disease with psychological causes, genetic causes and multiple social causes. I agree with Lessard, the courts need to expand the range of factors while settling inter jurisdictional division of powers. Dealing with such matters, issues involving politically marginalized groups with significant interests at stake, the courts should take into account the following (keeping in view the facts of Insite):
• The concept of Living Tree
• Doctrine of Subsidiarity
Attention to critical oppositional politics and its recognition as a fundamental and necessary component of democratic engagement is invited rather foreclosed by our constitutional texts and principles, upholding the concept of living tree, the concept entrenched into the Canadian constitution that makes the constitution capable of growth within its natural limits. The constitution is to be read in the context of contemporary society and is capable to adapt and reflect changes of the progressing society, especially when the interests of politically marginalized groups at stake are of significant and fundamental nature.
The doctrine of subsidiarity outlines a principle as follows, “Criminal law must be circumscribed in order to preserves space for provincial regulation of health care.” The doctrines supports the notion that law making and implementation are best achieved at a level of government that is not only effective but also closest to the citizens affected and thus most responsive to their needs and to population diversity. Insite enjoyed strong local support, applying the latter principles of subsidiarity and the concept of living tree, should have made it easier for the courts to adjudicate, keeping in view provincial jurisdiction of health care.
Despite apparent strong local support with active community involvement, lack of support from the federal government can negatively affect cooperative federalism, the concept in which federal and local governments solve problems collectively with coordination rather than promoting contrary policies.
After you have completed the review exercise, read the final decision of the Supreme Court of Canada. Do you agree with their decision? Are you surprised by it?
The Supreme Court of Canada granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws that will allow Insite to continue to operate and save lives, prevent disease, provide access to health care and recovery services. Out of the two main arguments, interjurisdictional immunity & Principles of fundamental justice (s.7), the Supreme Court upheld the claim made under s.7 of the Charter.
• The decision of the Supreme Court was based on the following:
• Provincial programmes designed to advance public interest are not exempt from the operation of criminal laws unless the law is expressly or impliedly so limited. The CDSA does not contain such a limit.
• Minister’s failure to grant exemption to Insite engaged the claimants’ s.7 rights and contravened the principles of fundamental justice.
• The goals of CDSA are the maintenance and promotion of public health and safety, Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s.7 rights.
We agree with the decision of the Supreme Court. The decision of the Supreme Court was not a surprise. The minister’s decision to revoke or deny further exemption would cause deprivations of life and security of the persons, in other words infringement of s.7 of the Charter. The exemption was necessary for a medical purpose, scientific purpose and/or is otherwise in the public interest. The decision of the court did not solely rely on constitutional texts rather utilized the concept of living tree and reflected elements of doctrine of subsidiarity.