Course:Public Law-Group1-Insite and the Division of Powers

Public Law
LAW 505
Section:	002
Instructor:	Robert Danay
Email:	rdanay@mail.ubc.ca
Office:
Office Hours:
Class Schedule:
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Important Course Pages
	Syllabus
	Lecture Notes
	Assignments
	Course Discussion

Description

Insite is a safe injection facility located in Vancouver's Downtown Eastside, allowing injection drug users to inject their drugs in a hygienic and medically supervised atmosphere.

History:

The facility grew out of a wider grassroots movement by residents of the Downtown Eastside neighbourhoods to stem a rapidly growing tide of infections and deaths related to use of illegal drugs, which was quickly becoming an epidemic within the area , via community outreach programs. One of the organisations arising form this initiative was the Portland Hotel Society (PHS) which was founded to care for those suffering from mental illness and addiction. Pursuing these aims, the PHS launched Insite in 2003 which, via an unprecedented arrangement between municipal, provincial and federal levels of government, allows injection drug users (IDUs) to inject their drugs in a clean and safe environment.

Facility and Services:

Located in Vancouver's Downtown Eastside, Insite operates within protocols established by Health Canada, and provides drug users clean equipment to carry out their injections as well as supervision by nurses and paramedical staff. While providing medical supervision and clean facilities, Insite does not provide IDUs with the drugs they inject. In addition to the measures listed above, Insite provides education in hygienic injection practices which are meant to decrease the occurrences of harmful conditions including abscesses and infections such as endocarditis. Insite also provides twelve supervised injection booths, clean injection equipment, and immediate response and intervention in the case of an overdose. Beginning in 2007, Insite expanded its capacities by initiating "Onsite". Onsite, located within the same building and directly above Insite, serves as a readily accessible detoxification area for IDUs who feel ready to attempt withdrawal and can house up to twelve individuals at a time. Onsite also enables access to counseling and basic medical assistance for IDUs, and a third floor on the building enables access to transitional recovery housing and space in which to begin overall stabilization.

Issues Surrounding the Facility

Insite has provoked a great deal of controversy as being the first legal safe injection site in North America.

Support:
Proponents may point to several pieces of evidence in defence of the site. The argument that Insite fulfills a need within the Downtown Eastside community is supported by the fact that, within just two months of opening, the centre was nearing capacity. This is also supported by evidence that Insite enjoys a high favourability rating among its IDU clients.

Insite has also been shown by several studies to have an appreciable effect in combating the societal ills it was formed to help prevent. As opposed to street practices, early reports on the centre showed that there were no instances of syringe sharing at Insite. The elimination of this behaviour is seen to greatly reduce the spread of infections. Adding backing to claims of Insite's efficacy in the reduction of harm from illegal drug use, recent studies have found that, over the past several years, fatal overdoses in the nearby vicinity of the centre have dropped by as much as thirty five percent while drops in similar fatalities in the rest of Vancouver have only dropped by about nine percent.

Others make the argument that Insite allows IDUs their only real access to medical care.

Criticisms:

Detractors of Insite and programs like it have pointed to concerns that these programs may lead to an increase in crime and "tacitly legitimize narcotic abuse."

Canadian Police organisations have met Insite with mixed feelings. The Canadian Police Association has gone as far as requesting that Insite be closed and the government should instead focus on a national drug strategy. Yet,in 2014, during an overdose crisis suspected to be linked to tainted heroin, Vancouver Police actively advised that IDUs should not consume drugs alone and recommended the use of Insite instead.

Other detractors, such as the Federal Government of Canada, speculate that Insite's harm reduction approach will only enable further self harm by addicts. Even amongst former IDUs, some feel that Insite's methodology would only serve to "enable drug use" and needlessly cost taxpayers "millions of dollars".

In 2014,the Portland Hotel Society ,the non-profit society running Insite, received negative attention in the media for conspicuous financial irregularities, including the billing of exorbitant junkets to the society. This may raise questions about how well structured Insite and its supporting organisations are.

Legal Issues

Clash of the powers: 91 v. s. 92?

91

Section 91(27) of the Constitution gives the Federal Government exclusive powers with respect to criminal law. The Federal Government regulated possession and trafficking Drugs and Substances based on this power. The relevant provisions of the Controlled Drugs and Substances Act (CDSA) to this case are:

4(1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

5(1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

5(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

The word “traffic” is defined in s. 2(1) of the CDSA:

“traffic” means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b).

92

Section 92 assigns the following exclusive powers to the Provincial Government:

(7) The establishment, maintenance and management of hospitals, asylums, charities and eleemosynary [charitable] institutions in and for the Province, other than marine hospitals.

(13) Property and civil rights of the Province.

(16) Generally all matters of a merely local or private nature in the Province.

Based on this power, the Provincial Government started the “Insite” facility, to provide (inter alia) health care services to drug addicts.

Clash?

The federal government has a compelling and in its essence legitimate interest in prohibiting drug injection, drug possession and drug trafficking, because the drug related issues pose a threat to the public safety and health. On the other hand, the provincial government (in this case of PHS Community Services Society and its co-plaintiffs, Mr. Wilson and Ms. Tomic, and Vancouver Area Network of Drug Users (VANDU), altogether: “PHS”) argues that by criminalizing the possession of controlled substances within the premises of the Vancouver Safe Injection Site (Insite), the clients of Insite are prevented to access to health care and thereby have a higher risk of death and disease. The provisions of the CDSA therefore violate the right of life and security of Insite’s clients. Also, the provisions violate the right of liberty to the clients of Insite, because the clients face the threat of prosecution while seeking health care service.

Comparing these laws, the question is: do they compete? And if so, which law should prevail?

Insite was initially given exemptions to the provisions 4 and 5 of the CDSA, based on necessity for a scientific purpose, but these exemptions will expire. The ability to operate the Insite facility is dependent upon the exemptions. For that reason, PHS have commenced separate actions seeking relief that will obviate the need for the exemptions.

First step: to determine if laws compete: pith and substance

To address a seemingly clash of the powers it is first crucial to determine the characterization of the laws ‘pith and substance’: what is the central feature of the law?

On its face the provisions in the CDSA suggest that it has criminal law as its central purpose/feature. But this could be ‘colourable’. In the decision of Reference re Firearms Act the Supreme Court of Canada provided the following description of ‘colourable’:

[18] ….‘In some cases, the effects of the law may suggest a purpose other than that which is stated in the law… In other words, a law may say that it intends to do one thing and actually do something else. Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be “colourable”.’

In this case it was not disputed that Insite was a health care facility and that health care was the central feature of the laws that regulated it. The Court of Appeal further concludes in para. 146 that the dominant feature of the CDSA is indeed (agreeing with the trial judge) criminal law. The Court held that the CDSA reflects a clear intention to control the production, import and use of all potentially dangerous drugs and other substances at all times and all places throughout Canada. The fact that this includes regulating drugs use in provincially-operated hospitals plus the fact that the Minister of Health can make exemptions to the CDSA in the public health care interests, cannot turn health care services into the dominant feature of the CDSA as a whole.

It follows that there is a clash of powers in this case: ‘the federal legislation in its exclusive field of competence forbids what the province has authorized in its exclusive flied of competence’.

Second step: to determine which principal of interpretation with respect to the division of powers applies

Now that a collision of the provincial and federal powers is demonstrated, the next step is to determine which power should prevail. Jurisprudence has given two doctrines to determine which principal of interpretation with respect to the division of powers should apply.

To determine which doctrine should be applicable, it is necessary to address the two doctrines in detail.

Paramountcy

The paramountcy doctrine becomes relevant when the two laws govern the same activities of the public. If the court decides that the federal and provincial legislation are of roughly equivalent importance, the decision is made that the challenged law could be enacted by both. But if but the laws give contradictive effects and these laws are in conflict (for example if they ask different conduct of the public) the federal legislation prevails.

Interjurisdictional immunity

Interjurisdictional immunity does not consider two separate pieces of legislation (one federal and one provincial) which collide. Provincial laws, under this doctrine, are not allowed to have an effect on matters falling within the core areas of federal jurisdiction, and there is no double aspect to the matter regulated.

The Court, in the Canadian Western Bank case the principles are discussed as follows:

[32] ………….. it must also be acknowledged that, in certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed two doctrines. The first, the doctrine of interjurisdictional immunity, recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. The second, the doctrine of federal paramountcy, recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse. Under our system, the federal law prevails. …

As to which doctrine should prevail, the court in Canadian Western Bank noted as follows:

[37] When confronted with a double aspect, the court must strive to give legitimacy to both legislative initiatives.

The court in Canadian Western Bank further noted:

[77] … ‘If a case can be resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it would be preferable to take that approach..’

The ratio behind this careful notion in the Canadian Western Bank case, is that when applying the interjurisdictional immunity doctrine too often or too broad, the principles of cooperative federalism would be under fire. The leading and modern approach to federalism is that there is room for both powers to coexist, as long as the effects of their laws do not collide.

On October 15, 2010 the Supreme Court of Canada, in the Quebec (Attorney General) v. Canadian Owners and Pilots Association case further explained when the doctrines of paramountcy and interjurisdictional immunity are applicable.

With respect to the paramountcy doctrine, the court held that there are two situations in which Federal paramountcy may arise: from either the impossibility of dual compliance or the frustration of a federal purpose.

With respect to the doctrine of interjurisdictional immunity, the court laid out a two-step test to determine if the doctrine of interjurisdictional immunity can be applied:

[27] The first step is to determine whether the provincial law… trenches on the protected “core” of a federal competence. If it does, the second step is to determine whether the provincial law’s effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine of interjurisdictional immunity.

In 2008 the trial judges in the PHS case at the Supreme Court of British Columbia found that

[119] ………….. In this case, however, the operation of the provincial undertaking, which is concerned with health care, interferes with or directly confronts the operation of the criminal law by permitting the possession of controlled substances at Insite contrary to the CDSA, which prohibits possession in all circumstances. While Parliament has some capacity to affect the supply and delivery of health care, the Province has no capacity to override the criminal law by creating an environment in which individuals can conduct themselves free of its constraints.

[120] Because there is operational conflict between the Province’s initiatives in health care and the criminal law which is directed in part to health, the conflict must be resolved by application of the doctrine of paramountcy. Absent Charter considerations, the criminal law must prevail.

This reasoning results in the prevalence of s. 4 and 5 of the CDSA over any health care regulations that are in conflict with the CDSA (Controlled Drugs and Substances Act) in this regard. The provisions of the CDSA could still be violating s. 7 of the Charter of Rights and Freedoms. This is what the judges of the Supreme Court of British Columbia argued in 2008 to eventually conclude that the provisions did violate s. 7 of the Charter and that they could not be saved by s. 1 of the Charter (this path will be discussed further on in this article).

On January 15, 2010 (before the Quebec (Attorney General) v. Canadian Owners and Pilots Association case) the Court of Appeal for British Columbia however, declared s.4 and s. 5 of the CDSA inapplicable to Insite by reason of the application of the doctrine of interjurisdictional immunity. Consequently, the Court didn’t need to comment further on the constitutional issues.

The Court held that the interjurisdictional immunity doctrine was reciprocal in the sense that federal legislation can be inapplicable if it touches the core of provincial undertakings. The court did also comment that this ‘reverse’ application of the interjurisdictional immunity should be used restrained to prevent intrusive incidental effects by one legislature to the domain of the other. In the PHS case it meant that only the provisions 4 and 5 of the CDSA would be inoperative.

Section 7 of The Charter

The trial judge in the PHS case held that the provisions 4 and 5 of the CDSA were inapplicable because of the paramountcy doctrine. PHS claimed that sections 4 and 5 of the CDSA violated section 7 of the Charter of Rights and Freedoms, so the trial judges had to address this issue.

In the Blencoe v. Britsh Columbia case the following two-step test was created to determine if there is a violation of section 7 of the charter:

First it has to be established that the provisions deprive the life, liberty or security of the clients of PHS that use the Insite facility.

Second, it has to be established that the deprivation is in accordance with the principles of fundamental justice.

First step: deprivation of life, liberty or security?

The ‘life’ interests are engaged because the clients of Insite need the injections as part of their health care needs (addiction is an illness in that regard). If they don’t get access to Insite due to the provisions of the CDSA, they will have an increased chance of death (by overdose or missed treatment if complications emerge).

The ‘liberty’ interest is at stake as the CDSA criminalizes the possession of an illegal substance. The potential imprisonment that the clients of Insite face, infringe their (sense of) liberty [see the Malmo-Levine case in this regard].

Finally, the interest of ‘security’ is also at stake, because if the clients are prevented by the CDSA of taking the injections in a safe environment, it will lead to serious psychological stress and that will infringe their notion of personal autonomy [see Rodrigues v. British Columbia].

Second step: deprivation in accordance with Fundamental Justice ?

If it is demonstrated that the impugned laws deprive the Insite clients of their right of life, liberty and security, the next step to take is to determine whether the deprivation is in accordance with the principles of ‘fundamental justice’. If not, than s. 7 is breached.

In the Motor Vehicle Reference case the following description of ‘fundamental justice’ is given bij the court:

[62] The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.

The court recognizes that the principles are to protect the basic values in our constitutional democracy. These basic values are organic and the jurisprudence has given us some applicable norms to determine if a deprivation of s. 7 of the Charter is in conflict with the principles of fundamental justice. In this context, the concepts of ‘arbitrariness’, ‘overbreath’ and ‘gross disproportionality’ will be addressed.

Arbitrariness is about the connection between the effect of a law and the purpose of that law.

In the Morgentaler case the abortion provision in the Criminal Code that required requests for abortions to be approved by a committee, was challenged as being unconstitutional. The purpose of the provision was to protect women’s health, but the effect was that the provisions caused delays that were harmful to women’s health. Here the objective of the law clearly contravened with the effect of the law and was thus unconstitutional.

In the Chaoulli case a law was challenged that prohibited private health insurance for services that were available under the public health care system. International evidence made clear that the two systems could operate next to each other without causing problems. Thus, the law prohibiting the two systems to co-exist showed no connection between the effects and the objectives of the law.

[129/130] A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]”. To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect. …

Overbreath is about laws that are so broad that they also capture situations that have no relation to the purpose of the law.

In the R. v. Heywood case a law prohibiting ‘loitering’ in public parks was found in conflict with the principles of fundamental justice. The purpose of the law was to protect children from sexual predators. The objective was noble, but the effect however was found to be too broad because it made practically anybody in public parks punishable.

Gross disproportionality deals with laws that cause a deprivation that is so severe, that it is out of balance with its purposes of those laws. The effect of a law then forms a serious conflict with the norms of the constitutional democracy and should not be supported.

In the Malmo-Levine case the court set out a two-step test to determine whether the impugned law is grossly disproportionate: first has to be determined that he law pursues a legitimate state interest. If it does, then has to be determined if the effects are so extreme that they are per se disproportionate to any legitimate government interest [para. 143].

Saved by section 1 of The Charter?

If the conclusion has to be drawn that the provisions are indeed causing a violation of s. 7 of the Charter, the last step to take is to determine if this violation is repairable through s. 1 of The Charter.

In the New Brunswick case the court determined in this regard:

[para. 99]: “ The principles of fundamental justice are among the most important in society. Any law that offends them will not ordinarily be saved by s. 1”

In R. v. Big M Drug Mart Ltd. the court created a test (the ‘Oakes test’) to make the determination if a violation can be justified under s. 1 of the Charter

1. The State’s objective must be of sufficient importance to warrant an overriding of a constitutional right
2. The means chosen must be reasonable and demonstrably justified. This involves a ‘proportionality test’ that balances the interests of the society with those of individuals and groups.

The trial judges in the PHS case came to the conclusion that the provisions 4 and 5 of the CDSA violated the constitutional rights of s. 7 of the Charter and this could not be justified by s.1 of the Charter.

The court of appeal in the PHS case did not have to address this issue, as it found that the provisions were inapplicable based on the Interjurisdictional immunity doctrine.

Our Perspectives

Opinion on the judgement of the court of appeal

Marjon's Opinion:

The court of appeal in the PHS case took a bold turn, by applying the interjurisdictional immunity doctrine in a way that it benefitted the provincial government. Until now the doctrine has only been used to protect the federal jurisdiction.

To my opinion, the ‘reversed’ use of the doctrine is not compliant with the history and purpose of federalism. The purpose was to reconcile unity with diversity: a federal unity with the desire of provincial autonomy. By applying the doctrine in favour of the provincial governments, it will do harm to the principle of co-operative federalism. It will make the interaction of the federal and provincial governments one of competition and not of interaction. Also, it will undermine the purpose of unifying the country to a point that it might get risky.

I further conclude that the Court of Appeal should have used the paramountcy doctrine because that would be compliant with existing jurisprudence to not use the inter jurisdictional immunity doctrine is cases of double aspect (Canadian Western Bank and Quebec (Attorney General) v. Canadian Owners and Pilots Association tests). In fact, in the PSH case the trial judges found that there was a dual aspect and the Court of Appeal agreed with this finding [para. 149].

This leads to the result that the judge will have to determine if the provisions of the CDSA violate the constitutional right of life, liberty, and security (s. 7 of the Charter).

To my opinion they do violate s.7 of the Charter because the clients of Insite, despite their drug addiction, have a right of health care too. Not disputed in the PHS case is that drug addiction is an illness. To deprive ‘patients’ of their right of health care is a violation of all rights mentioned in s.7 of the Charter.

To my opinion, the criminal laws in the impugned provisions of the CDSA are arbitrary in this regard, because they have the purpose of protecting public health and safety but have the effect of depriving a group of these protections.

Finally, I conclude that because the violated rights are so fundamental and touch the core of civil humanity, a violation of those rights cannot in this case be justified under s. 1 of the Charter.

Gill's Opinion:

In reading the case at both Trial and Court of Appeal levels, I was struck by the contrast between the different views on interjurisdictional immunity and where it may and may not be used.

The Trial judge ruled on the issue of interjurisdictional immunity in the following way at paragraphs 119-121 of the case:

"When confronted with a double aspect, the court must strive to give legitimacy to both legislative initiatives...In this case, however, the operation of the provincial undertaking, which is concerned with health care, interferes with or directly confronts the operation of the criminal law by permitting the possession of controlled substances at Insite contrary to the CDSA, which prohibits possession in all circumstances. While Parliament has some capacity to affect the supply and delivery of health care, the Province has no capacity to override the criminal law by creating an environment in which individuals can conduct themselves free of all constraints.

Because there is operational conflict between the Province's initiatives in health care and the criminal law which is directed in part to health, the conflict must be resolved by application of the doctrine of paramountcy. Absent Charter considerations, the criminal law must prevail.

The PHS and VANDU applications for declarations that ss. 4(1) and 5(1) of CDSA do not apply to Insite on the basis of interjurisdictional immunity are dismissed."

Pitfield J.'s ruling is striking in the sense that he comes at the issue from a perspective which suggests that when there is "operational" conflict, perhaps not even far reaching or serious conflict, between provincial and federal legislative provisions, that the federal paramountcy should be resorted to. I found much of Pitfield J.'s other reasoning well advanced and cogently thought out, but I would agree with Huddart JA. in challenging this particular notion.

Huddart JA, in the Court of Appeal, came at the issue from what I would suggest is a more balanced perspective. Much of her argument is worded around the need for the Federal government to have respect for exclusive provincial powers, even going so far as to directly state this at paragraph 165. She also asserts that a case such as this, contrary to Pitfield J.'s assessment, goes directly to the heart of the interjurisdictional immunity doctrine's purpose.

Writing at paragraph 168 of her decision in the Court of Appeal, she states of the Insite issue that:

"This is precisely the restricted use of the interjurisdictional immunity doctrine the jurisprudence supports: to prevent intrusive incidental effects by one legislature on the domain of the other."

In light of the decisions Canadian Western Bank v. Alberta [2007] 2 SCR 3 and British Columbia (Attorney General) v. Lafarge Canada Inc. [2007] 2 SCR 86 , this reasoning may be considered generous as it relates to the doctrine respecting provincial legislative exclusivity, but it also makes a great deal more sense in the broader context. Huddart JA.'s assertion that the interjurisdictional immunity doctrine can operate in favour of either the provincial or federal levels of government is logical, because in cases of truly severe conflict between the operation of federal and provincial legislative provisions, the federal government is already assumed to triumph under the doctrine of paramountcy.

As this is the case, Huddart JA. makes a good deal of sense in her statement at paragraph 171 that:

"Immediate resort to paramountcy is not only an error of law, it is questionable policy."

Additionally, the Trial judge's assertion that the interjurisdictional immunity doctrine does not apply in cases where a double aspect applies, can leave one scratching their head. How could that actually be the case? In any scenario in which the use of the interjurisdictional immunity doctrine would be contemplated, would there not need to be some form of double aspect? Huddart JA. introduces similar speculation at paragraph 153 by a Professor Robin Elliot, who also asserts that use of the interjurisdictional immunity doctrine will "almost always, if not always" involve the legislative issue having a dual provincial and federal aspect.

Huddart JA. also effectively quashes concerns about the application of the interjuridictional immunity doctrine creating a gap in the criminal law. At paragraphs 164 -165, she explains that the application of the doctrine to the facts of the case would result in only a very limited area of exception in the operation of ss. 4 and 5 of the CDSA.

Although Huddart JA.'s argument is situated on a balanced perspective, this has done nothing to mute the energy and impactfulness of her statements. She seems to pull very few punches, and makes her views known with a perceptible intensity. One example arises at paragraph 167 where she expounds on value of the Insite facility and its value to the overall provincial architecture of healthcare for British Columbia. She sates:

"Could Parliament legislate to effectively prohibit a doctor from using a scalpel?"

Reading between the lines, this is not only an affirmation of support for the value of Insite, and the worth it carries in terms of applying the interjurisdictional immunity doctrine, but can also be seen as statement questioning the actual extent of parliamentary sovereignty. Huddart JA. would seem to be suggesting to the government that there are certain, fundamental issues which the government will never be able to effectively legislate against and which will be upheld by the courts in the interests of broader justice.

In seeing the legal logic, concerns for justice being done, and sheer humanitarian aspects of Huddart JA.'s argument, I would agree with her assertions. Were I in a position to judge this issue in the Supreme Court, I believe I would reach the same conclusions as Huddart JA.

Perspectives on eventual SCC judgment

Marjon's perspective

The SCC ruled that:

• the criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers.

• the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal criminal law power. The fact that they have the incidental effect of regulating provincial health institutions does not mean that they are constitutionally invalid.

• provincial programmes designed to advance the public interest are not, by virtue of their public interest status, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited. The CDSA does not contain such a limit.

• the doctrine of interjurisdictional immunity does not apply. Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference. In addition, the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones.

• as it is common ground that, absent a constitutional immunity, the federal law constrains operations at Insite and trumps any provincial legislation or policies that conflict with it, it is unnecessary to inquire into whether the doctrine of paramountcy applies.

• it engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.

• it is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.

• it is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

• if a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed. The goals of the CDSA are the maintenance and promotion of public health and safety. The 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.

I was not surprised by the ruling of the SCC. I moved from Amsterdam (where we have a very progressive and tolerant approach towards drug related issues) to Calgary a year ago so it was hard for me to imagine that the provisions would not infringe constitutional rights. In Europe we have based (almost) the same issue on the human right of Health Care. I am a bit surprised yet about the first argument against applicability of interjurisdictional immunity. Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care. I thought that the judge would not have to come to a decision on this point, because of the contradiction of the doctrine with the purposes and operations of federalism. Interesting that the judge did not state that a interpretation in favour of the provincial government is never possible. Also interesting that the judge didn't use either one of the doctrines, but still tested if the provisions were violating s. 7 of the Charter.

Gill's Perspective

I found the Supreme Court's logic somewhat unconvincing on the whole. This seemed especially true for the sections which chronicled how the court came to its conclusions on the interjurisdictional immunity doctrine.

Much of the discussion seemed rooted in arguing that the interjuridictional immunity doctrine should not apply in this case simply because it had not done so before.

While admitting that the interjurisdictional immunity doctrine was not extinct as a concept, at paragraph 65 of the judgment, the court was careful to mention that:

"the modern trend is to strike a balance between the federal and provincial governments, through the application of pith and substance analysis and a restrained application of federal paramountcy. Therefore, before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis."

Besides invoking a "trend" as one basis for the decision, I think there are real problems with this statement. For example, one may ask if this constitutes any real balance at all? Surely almost any issue could technically be resolved by the application of federal paramountcy, but this would lead to a very one sided outcome and severely damage the idea of separate competencies for legislative authority as set out in ss.91 and 92 of the Constitution Act 1867.

Additionally, the courts logic does not seem entirely consistent. As seen above, the Supreme Court is seen to tout the importance of federal paramountcy as one of two key methods in deciding the outcome of such double aspect scenarios. However, at paragraph 69, the following concern about allowing the interjuridictional immunity doctrine to apply to a provincial concern like health is mentioned:

"Third, application of interjurisdictional immunity to a protected core of the provincial health power has the potential to create legal vacuums. Excluding the federal criminal law power from a protected provincial core power would mean that Parliament could not legislate on controversial medical procedures, such as human cloning or euthanasia. the provinces might choose not to legislate in these area, and indeed might not have the power to do so. The result might be a legislative vacuum, inimical to the very concept of the division of powers."

This seems like an odd worry on several counts. Firstly, the application of the immunity doctrine to this case, at least described by Huddart JA in the Court of Appeal, did not carve out a broad and expansive area which was immune from federal legislative provisions. Secondly, if such a situation were to arise, one could argue that the doctrine of federal paramountcy would be used to claim supremacy in the areas where it was felt to be necessary.

I also found the court's argumentation that healthcare was too vast an area to be considered a provincial core competency, at paragraph 69, not entirely convincing. While health is undoubtedly a vast area which could very conceivably intertwine with federal areas of jurisdiction, it is not the only such area. Aeronautics is also undoubtedly a vast legislative competency, and one which also has a provincial aspect...yet this was deemed a federal area of core competency in the case of Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 SCR 536. With this in mind, it becomes harder to see the merits of the court's argument.