email Oct 23 2015
email Oct 23 2015
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From: Kim Appotive <kimappotive@gmail.com> Date: 10-23-2015 4:17 AM (GMT-05:00) To: "Jennifer Agyei - jenagyei@hotmail.com" <jenagyei@hotmail.com> Cc: Mukunthan Paramalingham <paramalingham@gmail.com> Subject: RE: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise That is excellent thanks Jennifer. Looks like we basically have what we need. I went ahead and added everything together. Is everyone happy with below? Mukunthan, Once Jennifer has confirmed she is happy with below or advises her changes - please advise a timeline of when you can create the wiki page. The sooner this gets done the better. Thanks! And Jennifer - I get that came here for a change, I am really enjoying London and hope to qualify here but I thought I would keep my options open and start with the NCA's while I'm still figuring it out :) Outline I. Background / fact of case · Insite = safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users. a. Nature of addiction b. Establishment of Insite · It has operated under exemption in CDSA. c. Community and Political support for Insite · 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. II. Challenged Statute – Controlled Drugs and Substance Act (CDSA), Sections 4 (1), 5 (1&2) and 56 III. Argument for Insite a. Inapplicability of CDSA because it intrudes on provincial governments jurisdiction over healthcare and hospitals. Interjurisdictional immunity should apply in favor of the province head / power b. Charter challenge under section 7 – breach of life, liberty and security of a person IV. Argument opposing Insite a. Interjurisdictional immunity should apply in favor of the federal head / government b. The Charter should not be applied, addiction is a personal choice V. Application of the Charter to Insite – is CDSA saved by section 1 of the Charter VI. Conclusion 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. a. 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. b. 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. Division of Powers Q 2. Lessard and division of power a. The role of local community activism in democratic politics is at stake because these community activists lack the resources, support and sometimes the platform to get their views across. Community activism is a way for the poorest and marginalized citizens in our society to have a voice but this is not always the case. These people are neglected, sometime they represent a small percentage of the community as was the case of Insite that it is very difficult to gain support and momentum. The people concerned are drug addicts, lived in the poorest neighborhood in Vancouver, exposed to violence, homelessness, the composition of the people who lived in the area was a mixture of First Nation and first generation immigrants. It is no surprised they face a lot of huddles before they were able to organize as a group fighting for and united by a common goal or cause – to keep Insite open and to provide services to those at risk of death, infection, contracting HIV as a result of syringe sharing, counselling, training, etc. The article talks about the role of social movement in shaping the community/country, harm reduction emerged once the group mobilized, VANDU/Insite was created. The goal for Insite was for the government to approve and provide financial support for a safe injection site. The group went from handing out leaflets, peaceful street demonstration and meetings at churches and local parks to main stream political stage where it gained local, provincial and federal government support. b. Cooperative federalism in a democracy is at stake because even though the court/country has moved away from the watertight compartment interpretation of the division of power to cooperative federalism, conflicts arises where the court interprets and assign the disputed area. Cooperative federalism is an arrangement where both levels of government could potentially encroach on the others power; however this invasion was done through negotiation and private agreements without the involvement of the court. As more and more conflicts arise, the government and private citizens alike are turning to the courts for resolutions. Judicial intervention has meant resolving conflict using federalism principles such as interjurisdictional immunity doctrine, paramountcy and double aspect doctrine in favor of extending federal governments power to further encroach on provincial governments power as assigned by the Constitutional Act under sections 91 and 92.