email Oct 22 2015

On 22 October 2015 at 17:41, Kim Appotive <kimappotive@gmail.com> wrote: Hello group,

It never hurts asking Prof. Danay more guidance so I posted on the discussion in the General Section our question regarding the outline- hopefully he gets back to us soon (as its Thursday, and I assume this is due Sunday).

For now let's just go full steam ahead with how we think it should be done, and we can make any changes when/if we hear back from him.

So I guess since we only have two articles its not too hard to start with one and move onto the next.

I summarised the PHS article below:

CANADA v. PHS COMMUNITY SERVICES SOCIETY [2011] FACTS: • Insite = safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users. • It has operated under exemption in CDSA. • In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this action. • The claimants, argued that the division of powers makes the federal CDSA prohibitions inapplicable to the provincial health activities and patrons. • The claimants also submitted that sections of the CDSA violated the claimants’ s.7 Charter rights. HELD: The federal CDSA provisions do apply to provincial health activities. While the provisions do not violate the claimants’ s.7 rights, the Minister’s failure to provide an exemption does. REASONS - Division of Powers  Recent jurisprudence limited interjurisdictional immunity via the double aspect doctrine. 3 reasons for rejecting the interjurisdictional immunity claim o First, immunity of the provincial health power had never been recognized in the jurisprudence. o Second, claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction. o Third, granting interjurisdictional on the facts might result in a “legal vacuum” where neither government is able to legislate.  The court was careful to affirm that the doctrine of interjurisdictional immunity has been narrowed, not abolished.  Implicitly suggests that future interjurisdictional immunity arguments should be limited to invoking previously identified “core” undertakings. REASONS – Charter Argument  The court found that the prohibition of possession in the CDSA engages the claimants’ s.7 right to liberty since its breach can result in imprisonment.  It also engages Insite clients’ s.7 rights to life and security of the person by denying them access to “potentially lifesaving medical care.”  However, these limitations do not breach FJ. The claimants’ as arbitrary, overbroad and disproportionate were dismissed on the grounds that the CDSA has a built-in “safety valve” that empowers the Minister to grant exemptions to possession for medical/ scientific purposes.  While the statute did not violate the claimants’ s.7 rights, the court held that the Minister’s decision did, the Minister’s decision was arbitrary and disproportionate in its effects. Denying the life saving services that Insite provides is grossly disproportion to the benefit of having a uniform drug policy.

Jennifer and Mukunthan - do you want to add onto the summary in terms of outlining issues we would consider if we are/were the judges on the case using headings and subheadings to address the issues....

Let me know your thoughts.

Thanks.