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Sandbox:Law 505 - Group 1 - Justifying Infringement of Aboriginal Title

2015-12-13T19:45:33Z

JenniferFAgyei:

== Facts ==

The Musqueum Reserve is located in Vancouver, British Columbia, on the north shore of the Fraser River close to the mouth of the river, and adjacent to the University of British Columbia campus. The Musqueum have lived in this area as an organized society for tens of thousands of years prior to European contact and the assertion of British sovereignty. There is strong support for the claim that the Musqueum have aboriginal title to the lands currently occupied it, the University of British Columbia, and much of the Vancouver neighborhood known as Point Grey. 

Assume that such a claim is accepted by a Court, and that the Court finds infringement of aboriginal title, as protected by s. 35(1), in the ownership and occupation of these lands by non-aboriginal people. 

'''Question''': What kinds of questions, analyses, and issues would be raised by the “test of justification” part of the s. 35(1) analysis? 
 

== Analysis ==

=== What is the content of Aboriginal title? How is it protected by s. 35(1) of the Constitution Act 1982? What is required for its proof? ===

''(1) Introduction''

Aboriginal title ‘is a right in land and as such is more than the right that may be engaged in specific activities which may be themselves Aboriginal right’ (Canadian Constitutional Law, 4th Ed, p.597), in the case at bar it is the right to occupy the reserve land located in Vancouver.

''(2) Aboriginal Title at Common Law''

==== General Features ====

-Because of the special feature of Aboriginal title, cannot be alienated – the land cannot be sold, transferred or surrendered to anyone or to a third party except to the Crown or the government (p.598)

-The second feature of [A]boriginal title is the source of the right itself; it is recognized by the courts that [A]boriginal title ‘arises from the prior occupation of Canada by [A]boriginal people’ (p.598). There has to be ‘physical fact of occupation derived from common law principle that occupation is proof of possession in law’ (p.598) and the fact that ‘[A]boriginal title predates colonization and survived British claim of sovereignty’ (p.598) over Aboriginal people and their land. This goes to show that there is a ‘relationship between common law and pre-existing system of [A]boriginal law’ (p.598)

-The final feature of Aboriginal title is that it is not held individually but rather help ‘communally’; it is a collective right and any decision made pertaining to the right (land) are made by all members of the community (p.598)

-Spectrum of rights: Rights to hunt, fish-- Aboriginal title is right to the land itself rather than a right to do an activity on a specific tract of land. The rights move along the spectrum depending on the communities connection to the land

-Indian title to land survives crown assertion of sovereignty. The fiduciary duty rises from the recognition of Indian title to the land (Calder/Guerin)

-Aboriginal title is a right in land and is more than the right to engage in specific activities which may themselves be aboriginal rights. It confers the right to use the land for a variety of activities, not all of which need be aspects of practices, customs, and traditions which are integral to distinctive cultures. The range of uses is subject to the limitation that they must not be irreconcilable with nature of attachment to the land which forms the basis of the particular group’s aboriginal title. This is one way in which aboriginal title is distinct from fee simple. Aboriginal title is held communally; it is a collective right to land. Gitksan claim for aboriginal title not granted. (Delgamuukw v. BC)

-In order to make out a claim for aboriginal title, the aboriginal group asserting the claim must establish (i) the land must have been occupied prior to sovereignty (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between (iii) the occupation must have been exclusive. Take into account the aboriginal perspective in looking at the group’s size, manner of life, material resources, and technological abilities and the character of the lands claimed. If infringement of aboriginal title is found, use principles of justification from Sparrow and there is always a duty of consultation (Delgamuukw v. BC)

-Requirement of exclusive occupation may translate into aboriginal title if the activity was sufficiently regular and exclusive. Nomadic tribe claims depend on the evidence. Physical possession is a question of fact particular to the nature of land and the manner in which it was used (R. v. Marshall; R. v. Bernard)

-The SCC declared aboriginal title to Tshilqot’in First Nation which is an exclusive right to use the land. Can generate economic benefits unless the use is inconsistent with the traditional use of the land. Government and others seeking to use land must first get consent from community. Para 82: To constitute a compelling and substantial objective, the purpose must further the goal of reconciliation having regard to both the aboriginal interest and broader public objective. Para 86: Title held communally so infringements cannot be justified that would deprive future generations from benefiting from the land (Tsilqot’in Nation v. BC)

==== The Content of Aboriginal Title ====

-First, [A]boriginal title includes the right to exclusive use and occupation of the land held in pursuant to that title for a variety of purposes (p.599). In the case at bar, the court accepted the use and occupation by the Musqueum people.

-Second, those protected uses must not be irreconcilable with the nature of the group’s attachment to that land (p.599). One can conclude that the building of a university on a land to which Aboriginal people hold title or rights to conflicts with the use and preserving Aboriginal land, customs, tradition, practices, etc. Canadian jurisprudence indicates ‘Aboriginal title can be put is not restricted to the practice, customs and tradition of [A]boriginal peoples integral to distinctive [A]boriginal cultures’ (p.599). The many uses of Aboriginal title/land include reserve land ‘(incorporates reference to present-day needs of aboriginal people)’ and Indian and Gas Act ‘(aboriginal interest in reserve land includes mineral rights and the development of oil and gas)’ (p.600)

==== Inherent Limit: lands held pursuant to Aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land that forms the basis of the group’s claim to Aboriginal title ====

-Aboriginal title is unique and this uniqueness comes with limits attached to the Aboriginal rights. The following are some of the limits to Aboriginal title to land:

-First, if occupation is established based on the use of the land as hunting ground, the group may not use the land in such a fashion that will destroy its value (p.601)

-Second, if the group claims special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (p.601)

-Third, if the Aboriginal peoples wish to use their lands in a way that the title does not permit, then they must surrender those lands and convert them into non-title to do (p.602)

==== Aboriginal title under s. 35(1) of the Constitution Act, 1982 ====

- S. 35(1) did not create Aboriginal rights, rather it accorded constitutional status to those rights which were “existing” in 1982, at the time when the Constitutional Act came into force (p.602)

- Although Aboriginal title is affirmed and recognized by s. 35(1), [Aboriginal title] is distinct from other [A]boriginal rights because it arises where the connection of a group with a piece of land “was of a central significance to their distinctive culture (p.603)

- In R v Adams, the Aboriginal right rights which is affirmed and recognized under s. 35(1) are:

- First, those rights which are practices, customs, and traditions that are integral to the distinctive Aboriginal culture of the group claiming the right (p.603); and

- Second, there is Aboriginal title itself; what aboriginal title confers is the right to the land itself (p.603)

==== Proof of Aboriginal title - the test for the proof of Aboriginal title====

For a claim of Aboriginal title to be successful, the group must prove or satisfy the following requirements:

===== THE LAND MUST HAVE BEEN OCCUPIED PRIOR TO SOVEREIGNTY =====

- The Aboriginal group must establish it had occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title (p.604)

- Common law proof of occupation is ‘physical occupation’ of the land. Physical occupation can be through building dwellings, use of tracts of land for hunting, fishing and otherwise exploiting its resources (p.605)

- The courts must also take into account the group’s size, manner of life, material resources, technological abilities and the character of the land claimed (p.606)

===== IF PRESENT OCCUPATION IS RELIED ON AS PROOF OF OCCUPATION PRE-SOVEREIGNTY, THERE MUST BE A CONTINUEITY BETWEEN PRESENT AND PRE-SOVEREIGN OCCUPATION =====

- Aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required is a continuity between present and pre-sovereignty occupation (p.606)

- There must be a substantial maintenance of the connection between the people and the land (p.606)

- In the case at bar, the Musqueum have lived in the area in question as an organized society for tens of thousands of years prior to European contact and the assertion of British sovereignty. There is also evidence of current occupation of some of the land in question or been disputed

===== AT SOVEREIGNTY, OCCUPATION MUST HAVE BEEN EXCLUSIVE =====

- Finally, at sovereignty, occupation must have been exclusive – the Aboriginal community holds the ability to exclude others from the lands held pursuant to the title (p.607)

- The test required for exclusive occupation must take into account the context of the Aboriginal society at the time of sovereignty (p.607)

- The presence of other Aboriginal groups might actually reinforce a finding of exclusivity (p.607)

- The presence of those groups by permission may reinforce the exclusive occupation of the Aboriginal group asserting title (p.607)

- Aboriginal laws under which permission may be granted to other Aboriginal groups to use or reside even temporarily on land would reinforce the finding of exclusive occupation (p.607)

- The exclusive occupation mean ‘the intention and capacity to retain exclusive control’ and is not negated by occasional acts of trespass or the presence of other Aboriginal group with consent (p.611)

=== Infringement of Aboriginal Title - the test of justification of infringement of s. 35(1) rights ===

In ''R. v. Sparrow'', [1990] 1 SCR 1075, the Supreme Court of Canada acknowledged that there was no explicit language in s. 35 to authorize an assessment of the legitimacy of any governmental action that might restrict Aboriginal rights.
The test of justification of infringement of s. 35(1) rights addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right.

The onus lies on the group challenging the legislation to prove that:

# is the limitation imposed by the legislation reasonable?
# does the legislation impose undue hardship?
# does the legislation deny to the holders of the right their preferred means of exercising that right?

If a ''prima facie'' infringement is found, the analysis moves to the issue of justification. The justification analysis would proceed as follows:

'''(1) Is there a valid legislative objective?''' 

If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. 

'''(2) The second part is related to the special trust relationship and responsibility of the government with Aboriginal peoples.'''

The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resources. But top priorities, for example, must be given to Indian food fishing.

The government also has to show that the legislation infringes aboriginal rights as little as possible to meet the desired result, whether, in a situation of expropriation, fair compensation is available and whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented.

BIBLIOGRAPHY: Patrick Macklem, et al, Canadian Constitutional Law, 4th Edition (Toronto: Edmond Montgomery Publication Limited, 2010).

Sandbox:Law 505 - Group 1 - Justifying Infringement of Aboriginal Title

2015-12-12T15:23:17Z

JenniferFAgyei:

== Facts ==

The Musqueum Reserve is located in Vancouver, British Columbia, on the north shore of the Fraser River close to the mouth of the river, and adjacent to the University of British Columbia campus. The Musqueum have lived in this area as an organized society for tens of thousands of years prior to European contact and the assertion of British sovereignty. There is strong support for the claim that the Musqueum have aboriginal title to the lands currently occupied it, the University of British Columbia, and much of the Vancouver neighborhood known as Point Grey.

Assume that such a claim is accepted by a Court, and that the Court finds infringement of aboriginal title, as protected by s. 35(1), in the ownership and occupation of these lands by non-aboriginal people.

== Analysis ==

==== A) What Is the Content of Aboriginal Title? How Is It Protected by Section 35(1) of the Constitution Act 1982, and What Is Required for Its Proof? ====

''(1) Introduction''

The content of Aboriginal title ‘is a right in land and as such is more than the right that may be engaged in specific activities which may be themselves Aboriginal right’ (Canadian Constitutional Law, 4th Ed, p.597), in the case at bar it is the right to occupy the reserve land located in Vancouver.

''(2) Aboriginal Title at Common Law''

==== (a) General Features ====

-Because of the special feature of Aboriginal title, cannot be alienated – the land cannot be sold, transferred or surrendered to anyone or to a third party except to the Crown or the government (p.598)

-The second feature of [A]boriginal title is the source of the right itself; it is recognized by the courts that [A]boriginal title ‘arises from the prior occupation of Canada by [A]boriginal people’ (p.598). There has to be ‘physical fact of occupation derived from common law principle that occupation is proof of possession in law’ (p.598) and the fact that ‘[A]boriginal title predates colonization and survived British claim of sovereignty’ (p.598) over Aboriginal people and their land. This goes to show that there is a ‘relationship between common law and pre-existing system of [A]boriginal law’ (p.598)

-The final feature of Aboriginal title is that it is not held individually but rather help ‘communally’; it is a collective right and any decision made pertaining to the right (land) are made by all members of the community (p.598)

==== (b) The Content of Aboriginal Title ====

-First, [A]boriginal title includes the right to exclusive use and occupation of the land held in pursuant to that title for a variety of purposes (p.599). In the case at bar, the court accepted the use and occupation by the Musqueum people.

-Second, those protected uses must not be irreconcilable with the nature of the group’s attachment to that land (p.599). One can conclude that the building of a university on a land to which Aboriginal people hold title or rights to conflicts with the use and preserving Aboriginal land, customs, tradition, practices, etc. Canadian jurisprudence indicates ‘Aboriginal title can be put is not restricted to the practice, customs and tradition of [A]boriginal peoples integral to distinctive [A]boriginal cultures’ (p.599). The many uses of Aboriginal title/land include reserve land ‘(incorporates reference to present-day needs of aboriginal people)’ and Indian and Gas Act ‘(aboriginal interest in reserve land includes mineral rights and the development of oil and gas)’ (p.600)

==== (c) Inherent Limit: Lands Held Pursuant to Aboriginal Title Cannot Be Used in a Manner That Is Irreconcilable with the Nature of the Attachment to the Land That Forms the Basis of the Group’s Claim to Aboriginal Title ====

-Aboriginal title is unique and this uniqueness comes with limits attached to the Aboriginal rights. The following are some of the limits to Aboriginal title to land:

-First, if occupation is established based on the use of the land as hunting ground, the group may not use the land in such a fashion that will destroy its value (p.601)

-Second, if the group claims special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (p.601)

-Third, if the Aboriginal peoples wish to use their lands in a way that the title does not permit, then they must surrender those lands and convert them into non-title to do (p.602)

==== (d) Aboriginal Title Under Section 35(1) of the Constitution Act, 1982 ====

-Section 35(1) did not create Aboriginal rights, rather it accorded constitutional status to those rights which were “existing” in 1982, at the time when the Constitutional Act came into force (p.602)

-Although Aboriginal title is affirmed and recognized by section 35(1), [Aboriginal title] is distinct from other [A]boriginal rights because it arises where the connection of a group with a piece of land “was of a central significance to their distinctive culture (p.603)

-In R v Adams, the Aboriginal right rights which is affirmed and recognized under section 35(1) are:

-First, those rights which are practices, customs, and traditions that are integral to the distinctive Aboriginal culture of the group claiming the right (p.603); and

-Second, there is Aboriginal title itself; what aboriginal title confers is the right to the land itself (p.603)

==== (e) Proof of Aboriginal Title ====

==== 1. The Test for the Proof of Aboriginal Title ====

-For a claim of Aboriginal title to be successful, the group must prove or satisfy the following requirements:

==== i. THE LAND MUST HAVE BEEN OCCUPIED PRIOR TO SOVEREIGNTY ====

-The Aboriginal group must establish it had occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title (p.604)

-Common law proof of occupation is ‘physical occupation’ of the land. Physical occupation can be through building dwellings, use of tracts of land for hunting, fishing and otherwise exploiting its resources (p.605)

-The courts must also take into account the group’s size, manner of life, material resources, technological abilities and the character of the land claimed (p.606)

==== ii. IF PRESENT OCCUPATION IS RELIED ON AS PROOF OF OCCUPATION PRE-SOVEREIGNTY, THERE MUST BE A CONTINUEITY BETWEEN PRESENT AND PRE-SOVEREIGN OCCUPATION ====

-Aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required is a continuity between present and pre-sovereignty occupation (p.606)

-There must be a substantial maintenance of the connection between the people and the land (p.606)

-In the case at bar, the Musqueum have lived in the area in question as an organized society for tens of thousands of years prior to European contact and the assertion of British sovereignty. There is also evidence of current occupation of some of the land in question or been disputed

==== iii. AT SOVEREIGNTY, OCCUPATION MUST HAVE BEEN EXCLUSIVE ====

-Finally, at sovereignty, occupation must have been exclusive – the Aboriginal community holds the ability to exclude others from the lands held pursuant to the title (p.607)

-The test required for exclusive occupation must take into account the context of the Aboriginal society at the time of sovereignty (p.607)

-The presence of other Aboriginal groups might actually reinforce a finding of exclusivity (p.607)

-The presence of those groups by permission may reinforce the exclusive occupation of the Aboriginal group asserting title (p.607)

-Aboriginal laws under which permission may be granted to other Aboriginal groups to use or reside even temporarily on land would reinforce the finding of exclusive occupation (p.607)

-The exclusive occupation mean ‘the intention and capacity to retain exclusive control’ and is not negated by occasional acts of trespass or the presence of other Aboriginal group with consent (p.611)

==== f) Infringement of Aboriginal Title - the Test for infringement of s. 35(1) rights: ====

-The onus lies on the group challenging the legislation to prove:

(1) is the limitation reasonable?

(2) does the regulation impose undue hardship?

(3) Does the regulation deny to the holders of the right their preferred means of exercising that right?

-If an interference is found the analysis moves to the issue of justification issue:

(1) Is there a valid legislative objective

(2) The special trust relationship and responsibility of the government with aboriginals? Other considerations for justification: whether fair compensation is available, whether the aboriginal group was consulted Priority: (1) conservation (2) Indian Fishing (3) non-Indian fishing (4) non-Indian sports fishing (R. v. Sparrow)

-In order to be an aboriginal right an activity must be an element of practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. Courts should take into account: the perspective of aboriginal peoples themselves, identify the nature of claim made, claimant must demonstrate that tradition was of central significance to the society, continuity between practices prior to contact and aboriginal right, approach rule of evidence in light of evidentiary difficulties, must be adjudicated on a specific basis to that specific community, independent significance to the aboriginal culture, custom or tradition must be distinctive, influence of Europeans will only be relevant if the custom is integral because of the influence, take into account the relationship of aboriginal peoples and the land and the distinctive societies and cultures of aboriginals. Held that selling fish was not an integral part of the culture – only incidental through trade (R. v. Van der Peet)

-Doctrine of priority requires the government demonstrate that in allocating the resource it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users. At the justification states the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource reflects the aboriginal rights. If an aboriginal group has the priority in term of commercial sale it takes everyone else out of the equation. (R v. Gladstone)

-An aboriginal right cannot be characterized as a right to a particular resource, instead attention must be paid to significance of the resource to the community in question. (R v. Sappier, R v. Gray)

==== Aboriginal Title ====

-Spectrum of rights: Rights to hunt, fish-- Aboriginal title is right to the land itself rather than a right to do an activity on a specific tract of land. The rights move along the spectrum depending on the communities connection to the land

-Indian title to land survives crown assertion of sovereignty. The fiduciary duty rises from the recognition of Indian title to the land (Calder/Guerin)

-Aboriginal title is a right in land and is more than the right to engage in specific activities which may themselves be aboriginal rights. It confers the right to use the land for a variety of activities, not all of which need be aspects of practices, customs, and traditions which are integral to distinctive cultures. The range of uses is subject to the limitation that they must not be irreconcilable with nature of attachment to the land which forms the basis of the particular group’s aboriginal title. This is one way in which aboriginal title is distinct from fee simple. Aboriginal title is held communally; it is a collective right to land. Gitksan claim for aboriginal title not granted. (Delgamuukw v. BC)

-In order to make out a claim for aboriginal title, the aboriginal group asserting the claim must establish (i) the land must have been occupied prior to sovereignty (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between (iii) the occupation must have been exclusive. Take into account the aboriginal perspective in looking at the group’s size, manner of life, material resources, and technological abilities and the character of the lands claimed. If infringement of aboriginal title is found, use principles of justification from Sparrow and there is always a duty of consultation (Delgamuukw v. BC)

-Requirement of exclusive occupation may translate into aboriginal title if the activity was sufficiently regular and exclusive. Nomadic tribe claims depend on the evidence. Physical possession is a question of fact particular to the nature of land and the manner in which it was used (R. v. Marshall; R. v. Bernard)

-SCC declared aboriginal title to Tshilqot’in First Nation which is an exclusive right to use the land. Can generate economic benefits unless the use is inconsistent with the traditional use of the land. Government and others seeking to use land must first get consent from community. Para 82: To constitute a compelling and substantial objective, the purpose must further the goal of reconciliation having regard to both the aboriginal interest and broader public objective. Para 86: Title held communally so infringements cannot be justified that would deprive future generations from benefitting from the land (Tsilqot’in Nation v. BC)

BIBLIOGRAPHY

Patrick Macklem, et al, Canadian Constitutional Law, 4th Edition (Toronto: Edmond Montgomery Publication Limited, 2010).

Sandbox:Law 505 - Group 1 - Justifying Infringement of Aboriginal Title

2015-12-12T12:49:54Z

JenniferFAgyei:

Sandbox:Law 505 - Group 1 - Justifying Infringement of Aboriginal Title

2015-12-12T12:47:40Z

JenniferFAgyei:

Sandbox:Law 505 - Group 1 - Justifying Infringement of Aboriginal Title

2015-12-10T11:15:08Z

JenniferFAgyei: Created page with "== Facts == The Musqueum Reserve is located in Vancouver, British Columbia, on the north shore of the Fraser River close to the mouth of the river, and adjacent to the Univer..."

Sandbox:Charter s. 7 Refugee Health protection, Law 505

2015-11-23T11:32:38Z

JenniferFAgyei:

Charter of Rights and Freedoms: Section 7 and the Provision of Health Care to Refugees

== Relevant Facts ==

Canada has a long tradition of providing basic health coverage to refugees. This tradition dates back to June 20, 1957 with the passing of Order in Council OIC 1957-11/848. This Order in Council gave rise to what became the Interim Federal Health Care Program (IFHP). The IFHP has historically provided temporary health, vision and dental insurance to all refugee claimants and resettled refugees, up until the time they were either accepted as refugees and were eligible for provincial health care, or if not accepted, until they had exhausted their legal options to remain in Canada.

On April 5, 2012, the ''Order respecting the Interim Federal Health Program, 2012'' was issued (without consultation or notice). This Order rescinded the 1957 Order in Council and instituted drastic cuts to health benefits paid by the federal government for refugee claimants, government sponsored refugees and privately sponsored refugees.

On June 28, 2012 the ''Order respecting the Interim Federal Health Program, 2012'' was amended (without consultation or notice). The amendment restored interim federal health benefits to government-assisted refugees, but kept the deep cuts for privately sponsored refugees and all categories of refugee claimants.

On June 30, 2012, the ''Order respecting the Interim Federal Health Program, 2012'', as amended, (OIC) came into force. This took away health care from individuals in dire need of it.

A Charter challenge to the OIC was brought forward by the Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, Daniel Garcia Rodrigues, Ahmad Awatt, and Hanif Ayubi.

== How do you think a Canadian court should respond to the claim that the cuts to benefits under the Interim Federal Health program violate s. 7 of the Charter? ==
=== The nature of the state obligations relating to health care that flows from s. 7 ===
==== Introduction ====

We believe a Canadian court should find that the cuts to the Interim Federal Health Program (the “IFHP”) resulting from the Order respecting the Interim Federal Health Program (the “OIC”), issued and later amended in 2012 in breach of section 7 of the Charter. These cuts constitute a deprivation of rights that cannot be justified and are contrary to the principles of fundamental justice. The reasons for our views are explained below and they will address the nature of the state’s obligations in relation to health care that flow from section 7.

==== Health care obligations stemming from s. 7 ====

Although government programs exist in Canada to provide publicly funded health services, there is no explicit constitutional right that grants express protection of the right to health. The Charter does not have a specific section addressing health rights. However, health matters have been protected at a Constitutional level within the context of several sections, including s. 7 and s. 15 of the Charter. We will focus on s. 7.

Section 7 of the Charter states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The argument that flows from section 7 is that the rights to life, liberty and security of the person may be affected by a measure that affects the health care available to all or certain individuals. Several court cases support that impairment to a health service as a result of a regulation may be in breach of section 7. For example in Morgentaler, the court refereed to the physical and psychological aspects amounting to associated with delay in medical care as affecting the right to security of a person. In addition, in Chaoulli v Quebec (AG), the SCC found that the rights to life and security were breached by the regulations prohibiting private medical insurance. In this case the court stated:

The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. We are of the view that the prohibition on medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it impinges on the right to life, liberty and security of the person in an arbitrary fashion that fails to conform to the principles of fundamental justice. (Chaoulli, para. 104)

The government’s measures taken with respect to health care are not unlimited by the fact that the right to health care has no explicit Charter recognition in Canada. It may be argued by the government, that there is no positive responsibility under section 7 and therefore there cannot be an imposition based on the Charter for it to fund a healthcare scheme. However, this position will contravene Canada’s positive obligations under international law, specifically under the International Covenant on Civil and Political Rights (ICCPR)<ref>Article 6, Right to life. </ref> and the International Covenant on Economic, Social and Cultural Rights (ICESCR)<ref>Article 12, Right to physical and mental health.</ref> , both ratified by Canada.

As explained below, when it comes to healthcare, the government is bound by the protection it owes to the constitutional rights to life, liberty and security.

==== Canadian Doctors for Refugee Care v. Canada ====

The Applicants before the Federal Court allege that the changes to the IFHP deny individuals access to basic and necessary health care. This will affect them both physically and psychologically. They also assert that this change to the benefits they previously had, affects the rights to life and security of the person guaranteed by section 7. (Notice of Application, para. 55)

In this case, the Court would have to resolve: whether the changes made by the federal government to the IFHP deprive refugees seeking the protection of Canada of their right to life, liberty or security of the person. The court will also have to determine if this deprivation is in accordance with the principles of fundamental justice. (R v Malmo Levine [2003] 3 S.C.R. 571, 2003 SCC 74, para. 83.)

From the evidence presented by the Applicants it is clear that the OIC has deprived refugees from health care that is critical to this vulnerable and disadvantaged population. The lives of the refugees, adults, women, children, denied health care, have been placed at serious risk.

In addition, adding to the vulnerability and psychological impact that involves being a refugee, not only the lack but also the delay in receiving health care will translate into adverse physical and physiological effects. This adverse psychological impact can have a serious and profound effect on a person’s psychological integrity, and is a violation of security of the person. Moreover, delays in obtaining medical physical and psychological treatment that could place individuals at higher risk of health complications, can trigger the protection of s. 7 of the Charter. This was recognized by the Court in Morgentaler , when Dickson CJ concluded that, “the delay in obtaining therapeutic abortions, which increased the risk of complications and mortality due to mandatory procedures imposed by the state, was sufficient to trigger the physical aspect of the woman’s right to security of the person.” (Access to Health Care Services in Canada, 2001, at p. 20, cited in Chaoulli v. Quebec (A.G.), p. 848)

The Applicants argue that the deprivation of health benefits is against fundamental justice. The individuals affected by this measure are all either resettled refugees or refugee claimants, who were previously entitled to coverage under the IFHP. The Federal Government has historically assumed responsibility for refugee health care for many years and the change to the IFHP constitutes a denial of medical care to privately sponsored refugees and refugee claimants.

The Court should find that this denial of medical benefits is arbitrary. The implementation of the OIC, which affected the rights to life and security of the refugees, is unfair since the goals of the new regulation did not bear a real connection to the facts and its intended purpose. In other words, the OIC is disconnected to its alleged purpose. Its implementation is not saving costs to taxpayers, but transferring the costs and instead of achieving equity between refugees and Canadians in the same economic circumstance, it is suddenly depriving refugees of basic health that result in a higher health risk for all. The arguments presented by the federal government do not bear any connection or justify placing refugees in a more vulnerable position where their life and security is at risk. For this reasons, a court should find that the OIC is arbitrary and in contradiction to the principles of fundamental justice.

==== Conclusion ====

In this case the Court has enough evidentiary findings to conclude that the OIC breached section 7 of the Charter. The changes made by the Federal Government to the IFHP effectively deprived refugees seeking the protection of Canada of their right to life and security of the person and this deprivation is contrary to the principles of fundamental justice.

Therefore, the government should be directed to reestablish the publicly funded healthcare scheme that has been previously granted to refugees. The fact that the Charter does not contain a freestanding right to healthcare should not be an obstacle for the Court to make this direction as positive measures are recognized and mandated in the relevant international instruments ratified by Canada.

=== The scope of the court’s capacity to make informed, legitimate judgments about healt care programs. ===
We can determine the scope of application for section 7 of the Charter by looking at past jurisprudence. In ''Operation Dismantle'' there was an attempt to narrow the scope of section 7 of the Charter. Some of the justices involved stated that section 7 of the Charter did not confer any independent absolute right to life or security of the person. Justice Pratte stated section 7 should not be interpreted in a manner that would allow the Court to substitute their opinions for those of Parliament and the Executive on purely political questions. The question of health care for refugees is not one for the Court to decide under this interpretation of section 7 because it is a political question on what the Parliament or Executive should be doing in relation to health care for refugee claimants. The Court does not want to be in a situation where the decision it reaches substitutes that of the Executive. 

There are cases, however, where the Court has intervened and applied section 7 of the Charter to facilitate the right of an individual or group to challenge executive and governmental decision-making. In cases such as ''Kindler v. Canada (Minister of Justice and Reference re Ng Extradition'' (Canada) the Court showed considerable regard in applying section 7 to decisions by the Executive with respect to extradition. The Court held the position it had taken previously in ''Canada v. Schmidt'', because the death penalty would have applied to those that were extradited to the United States under an order by the Minister of Justice. The Court stated that there was no need for a condition that the death penalty would not apply. The rationale the Court used to come to this decision was, because there is no capital punishment in Canada, and there is no consensus of Canadians that capital punishment is morally abhorrent, that it would not be 'absolutely unacceptable' to allow extradition without conditions. The Court also stated that having conditions on the extradition would result in the imposition of the Canadian Charter on the United States which would have gone against the comity of nations. There were three dissenting justices and they concluded that the Minister of Finance should have attained assurances before permitting extradition. 

In this case the issue is not extradition but the care provided to individuals under IFHP. The Court can apply section 7 to this issue because there was care previously afforded to refugees that was then revoked. In relation to the scope of the court to determine whether or not section 7 challenges are valid. In the case of ''New Brunswick (Minister of Health and Community Services) v. G. (J.)'' the Supreme Court found that state removal of a child from a parent constituted a serious interference with the psychological integrity of the parent and therefore could not be done without a proper hearing. In this case the revocation of the IFHP was done without proper procedure and therefore could possibly be in breach of section 7. In ''New Brunswick (Minister of Health and Community Services) v. G. (J.)'' held that this taking of the child without proper procedural fairness and candidness was a violation of security of the person due to it affecting the parent psychologically. 

Following the reasoning found in the prior jurisprudence discussed above, the scope of the Court is fairly limited in relation to the application of section 7. The Court cannot make decisions that contravene the decisions made by the Executive. The scope of application of section 7 to allow the Court to do this is dependent on two key factors: 

Does the interpretation by the Court substitute its opinion for that of the Executive purely on political questions; and 

Does the application of section 7 have an extraterritorial application

== Peter and Young perspectives - Risks that arise when s. 7 is used to advance the interests of marginalized communities ==

=== Margot Young: ===

Young contends that the manner in which the claimants in PHS case ‘was cleared for that victory may compromise or constrain future constitutional arguments. The framing of the reality at issue and its relevance to the unpacking of the Charter's section 7 rights, retains too narrow a scope for these rights to be positioned as reliable triggers for progressive social transformation’ (p.223).

Because the courts accept that application of section 7 is not frozen and should be allowed to develop incrementally, ‘section 7 has been invoked in a broad range of claims and its ultimate import has yet to be determined, making it compelling but uncertain terrain for those who wish to push forward ambitious rights claims’ (p.237).

Rights under the Charter must do more than simply abandon the unfortunate … If not, rights analysis will ignore the clear message of so much social theory that individual actions and choices are meaningfully constrained, shaped, and made possible by larger systemic norms, structures, and institutions. (p.249)

The configured and contingent character of choice means that the criterion of choice is poorly fingered as a feature relevant to foreclosing or determining a rights analysis. The rights claims of these individuals thus risk being read in light of inaccurate depictions of choice and agency, as the vulnerabilities and constraints of marginality and extreme disadvantage may be the most difficult for the judges who sit in determination of these rights claims to discern and appreciate. (p.249)

By focusing too much on choice or agency, courts risk neglect of "the distinctively political aims of equalitarianism" relevant to both equality rights and liberty rights. The characteristic of a just society, grants to all citizens "effective access to the social conditions of their freedom at all times (p.250).

The critique of the relevance of choice is also a challenge to the picture of the citizen that has emerged as dominant in current, mainstream neo-liberal policy and politics. The result is that ‘structurally disadvantaged groups are 'collectively individualized' in popular cultural representations, in citizenship discourses, and in public policy’ (p.251).

The courts must understand how context subtly but powerfully shapes rights claims and state obligations under the Charter (p.253).

=== Andrew Petter: ===

Chaoulli demonstrate, not only do the disadvantaged have little to gain in the way of social benefits from the Charter, they have much to lose (p.127).

Notwithstanding testimony from experts that two-tier health care would hurt the economically disadvantaged, who are more likely to suffer from poor health and who cannot afford private insurance, three of the majority judges held that they had sufficient evidence to conclude that the legislation was ‘arbitrary’ and therefore contrary to ‘the principles of fundamental justice’ (p.119).

Charter rights are grounded in an ideology of liberal legalism that holds that the main enemy of freedom is not disparities in wealth or concentrations of private power, but the state (p.120).

The right to security of the person in section 7, according to the ideology of liberal legalism, does not require governments to implement measures to make people secure. It is only when the ‘normalcy’ of the market is disrupted by legislative or executive action that section 7 rights are engaged (p.121).

The Court rejected Gosselin claim that cuts to social assistance benefit left her in abject poverty, holding that section 7 did not place positive obligations on the state to ensure that Gosselin enjoyed security of the person, only negative obligations not to deprive her of such security’ (p.126)

Thus the Charter guarantees personal security not to individuals who ‘naturally’ lack such entitlements, but only to individuals who ‘naturally’ enjoy such entitlements and wish to resist government efforts to take them away or restrict their use (p.126).

Despite the Charter’s fine words, the social rights it confers do not speak to the security of all Canadians, nor to their actual equality. Thus while the Charter provides Gosselin no to call upon the state to provide her with food, clothing or shelter, it provides her the right to purchase private health insurance in the marketplace – if only she had the money to do so (p.127).

== Peter and Young perspectives - Advantages that arise when s. 7 is used to advance the interests of marginalized communities ==

=== Margot Young: ===

Young argues that ‘Charter issues need to be grounded in the richness of the claimants' circumstances. Yet the actual factors recognized and the import assigned to them leads to the reservations this argument expounds about doctrinal development of section 7’ (p.238).

Young also points out that the courts accept the application of section 7 of the Charter ‘should be allowed to develop incrementally’ and should not be seen as ‘frozen’ (p.237).

The findings in PHS case ‘establish[ed] a picture of injection drug addiction and use of supervised safe injection in which health issues are central and individual volition is downplayed. These contextual findings at the trial level, and in all three judgments of the Court of Appeal, are significant in two particular ways: first, in terms of the larger culture shift the case reflects and reinforces, and second, in relation to the legal argument accepted at each level of court’ (p.240).

The trial judge accepted also that ‘addiction and resort to Insite's services means that it was a simple step to see that fundamental interests protected under section 7 were at stake. The contextual underpinnings ensure that the interests protected under section 7 are given a deeper understanding that extends the notions of life, liberty, and security of the person into territory that is more responsive to the circumstances of the vulnerable individuals in each case’ (p.244-245).

‘The blanket prohibition against the possession of illicit drugs at Insite contribute[d] to the risk of death by the claimants’ (p.245). The right to life is engaged ‘because the risk of mortality’; right to liberty is infringed because of possible prosecution and imprisonment; security of the person is threatened because the CDSA has the effect of denying access to a health care facility …’ (p.245-246).

Choice-even a reasonable finding of the availability of meaningful choice-should perhaps never let the state off the hook for obligations under section 7. Instead, the focus should be on the state restriction at issue (p.250).

=== Andrew Petter: ===

Yet it is also the case that the Court over the past twenty years has shown that it has the ability to resist the Charter’s regressive tendencies when it chooses, both by being strategic in deciding when to defer to legislative choices and by developing creative mechanisms to moderate the impact of the Charter within the limits allowed by liberal legalism (p.128).

Dialogue theory encouraged judges to see their Charter role as being advocates rather than arbiters, and their judgments as being missives directed at government rather than verdicts directed at society—judicial activism (p.129)

Dialogue theory militates in favour of judicial restraint. The theory is best served by judges making ‘minimalist rulings’ that leave ‘the greatest scope possible for potential responses by the legislative and executive branches (p.130).

Some have suggested that the Court’s judgment was intended as a ‘wake up call’ to governments about the need to fix Medicare by reducing wait times for medically procedures. (p.119) First, there has in recent years been no lack of political pressure or commitment regarding the need to reduce wait times. (p.119) Second, by deciding that access to private health insurance is a Charter right, the Court has given constitutional legitimacy to those advocating a two-tier health care system for Canada. (p.119-120) Finally the Court appears to have acted with disregard for the trade implications of its decision, ignoring the Romanow Report’s admonitions that, to be protected as ‘public services’ under such agreements, health care services must be ‘universally accessible on the basis of need rather than the ability to pay’ and must be ‘financed out of public revenues’ (p.120).

=== Other perspectives ===

In Reference re Section 94(2) of the Motor Vehicle Act BC), the court explained that interest which is meant to be protected by the words ‘and the right not be deprived by thereof except in accordance with the principle of fundamental justice’ of section 7 are the life, liberty, and security of the person. (p.1162)

The ‘phrase of fundamental justice’ serves to establish the parameters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them to do so will strip the protected interests of much, if not most, of their content and leave the “right” to life, liberty, and security of the person in a sorely emaciated state. (p.1162)

In R v Morgentaler, the court held that the ‘right to liberty contained in section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private life (p.1174). It agreed that the right to “security of the person” under section 7 of the Charter protects both physical and psychological integrity of the individual. (p.1175)

In R v Morgentaler, the court concluded that section 251 of the Criminal Code ‘deprives a woman of their right to liberty and security of the person in a manner that does not accord with the principles of fundamental justice and in a manner that offends section 2(a) of the Charter. (p.1175) The court also held the violation cannot be justified under section 1 of the Charter.

== Bibliography ==

Patrick MacKlem et al, Canadian Constitutional Law, 4th ed (Toronto: Edmond Montgomery Publications Limited, 2010).

Andrew Petter, “Wealthcare: The Politics of the Charter Re-visited” in Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005).

Margot Young, “Context, Choice, and Rights: PHS Community Services Society v Canada (Attorney General” (2011) 44 UBC L Rev 221.

Sandbox:Charter s. 7 Refugee Health protection, Law 505

2015-11-23T11:08:34Z

JenniferFAgyei: /* Other perspectives */

Charter of Rights and Freedoms: Section 7 and the Provision of Health Care to Refugees

== Relevant Facts ==

Canada has a long tradition of providing basic health coverage to refugees. This tradition dates back to June 20, 1957 with the passing of Order in Council OIC 1957-11/848. This Order in Council gave rise to what became the Interim Federal Health Care Program (IFHP). The IFHP has historically provided temporary health, vision and dental insurance to all refugee claimants and resettled refugees, up until the time they were either accepted as refugees and were eligible for provincial health care, or if not accepted, until they had exhausted their legal options to remain in Canada.

On April 5, 2012, the ''Order respecting the Interim Federal Health Program, 2012'' was issued (without consultation or notice). This Order rescinded the 1957 Order in Council and instituted drastic cuts to health benefits paid by the federal government for refugee claimants, government sponsored refugees and privately sponsored refugees.

On June 28, 2012 the ''Order respecting the Interim Federal Health Program, 2012'' was amended (without consultation or notice). The amendment restored interim federal health benefits to government-assisted refugees, but kept the deep cuts for privately sponsored refugees and all categories of refugee claimants.

On June 30, 2012, the ''Order respecting the Interim Federal Health Program, 2012'', as amended, (OIC) came into force. This took away health care from individuals in dire need of it.

A Charter challenge to the OIC was brought forward by the Canadian Doctors for Refugee Care, the Canadian Association of Refugee Lawyers, Daniel Garcia Rodrigues, Ahmad Awatt, and Hanif Ayubi.

== How do you think a Canadian court should respond to the claim that the cuts to benefits under the Interim Federal Health program violate s. 7 of the Charter? ==
=== The nature of the state obligations relating to health care that flows from s. 7 ===
==== Introduction ====

We believe a Canadian court should find that the cuts to the Interim Federal Health Program (the “IFHP”) resulting from the Order respecting the Interim Federal Health Program (the “OIC”), issued and later amended in 2012 in breach of section 7 of the Charter. These cuts constitute a deprivation of rights that cannot be justified and are contrary to the principles of fundamental justice. The reasons for our views are explained below and they will address the nature of the state’s obligations in relation to health care that flow from section 7.

==== Health care obligations stemming from s. 7 ====

Although government programs exist in Canada to provide publicly funded health services, there is no explicit constitutional right that grants express protection of the right to health. The Charter does not have a specific section addressing health rights. However, health matters have been protected at a Constitutional level within the context of several sections, including s. 7 and s. 15 of the Charter. We will focus on s. 7.

Section 7 of the Charter states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The argument that flows from section 7 is that the rights to life, liberty and security of the person may be affected by a measure that affects the health care available to all or certain individuals. Several court cases support that impairment to a health service as a result of a regulation may be in breach of section 7. For example in Morgentaler, the court refereed to the physical and psychological aspects amounting to associated with delay in medical care as affecting the right to security of a person. In addition, in Chaoulli v Quebec (AG), the SCC found that the rights to life and security were breached by the regulations prohibiting private medical insurance. In this case the court stated:

The Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter. We are of the view that the prohibition on medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29, and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28 (see Appendix), violates s. 7 of the Charter because it impinges on the right to life, liberty and security of the person in an arbitrary fashion that fails to conform to the principles of fundamental justice. (Chaoulli, para. 104)

The government’s measures taken with respect to health care are not unlimited by the fact that the right to health care has no explicit Charter recognition in Canada. It may be argued by the government, that there is no positive responsibility under section 7 and therefore there cannot be an imposition based on the Charter for it to fund a healthcare scheme. However, this position will contravene Canada’s positive obligations under international law, specifically under the International Covenant on Civil and Political Rights (ICCPR)<ref>Article 6, Right to life. </ref> and the International Covenant on Economic, Social and Cultural Rights (ICESCR)<ref>Article 12, Right to physical and mental health.</ref> , both ratified by Canada.

As explained below, when it comes to healthcare, the government is bound by the protection it owes to the constitutional rights to life, liberty and security.

==== Canadian Doctors for Refugee Care v. Canada ====

The Applicants before the Federal Court allege that the changes to the IFHP deny individuals access to basic and necessary health care. This will affect them both physically and psychologically. They also assert that this change to the benefits they previously had, affects the rights to life and security of the person guaranteed by section 7. (Notice of Application, para. 55)

In this case, the Court would have to resolve: whether the changes made by the federal government to the IFHP deprive refugees seeking the protection of Canada of their right to life, liberty or security of the person. The court will also have to determine if this deprivation is in accordance with the principles of fundamental justice. (R v Malmo Levine [2003] 3 S.C.R. 571, 2003 SCC 74, para. 83.)

From the evidence presented by the Applicants it is clear that the OIC has deprived refugees from health care that is critical to this vulnerable and disadvantaged population. The lives of the refugees, adults, women, children, denied health care, have been placed at serious risk.

In addition, adding to the vulnerability and psychological impact that involves being a refugee, not only the lack but also the delay in receiving health care will translate into adverse physical and physiological effects. This adverse psychological impact can have a serious and profound effect on a person’s psychological integrity, and is a violation of security of the person. Moreover, delays in obtaining medical physical and psychological treatment that could place individuals at higher risk of health complications, can trigger the protection of s. 7 of the Charter. This was recognized by the Court in Morgentaler , when Dickson CJ concluded that, “the delay in obtaining therapeutic abortions, which increased the risk of complications and mortality due to mandatory procedures imposed by the state, was sufficient to trigger the physical aspect of the woman’s right to security of the person.” (Access to Health Care Services in Canada, 2001, at p. 20, cited in Chaoulli v. Quebec (A.G.), p. 848)

The Applicants argue that the deprivation of health benefits is against fundamental justice. The individuals affected by this measure are all either resettled refugees or refugee claimants, who were previously entitled to coverage under the IFHP. The Federal Government has historically assumed responsibility for refugee health care for many years and the change to the IFHP constitutes a denial of medical care to privately sponsored refugees and refugee claimants.

The Court should find that this denial of medical benefits is arbitrary. The implementation of the OIC, which affected the rights to life and security of the refugees, is unfair since the goals of the new regulation did not bear a real connection to the facts and its intended purpose. In other words, the OIC is disconnected to its alleged purpose. Its implementation is not saving costs to taxpayers, but transferring the costs and instead of achieving equity between refugees and Canadians in the same economic circumstance, it is suddenly depriving refugees of basic health that result in a higher health risk for all. The arguments presented by the federal government do not bear any connection or justify placing refugees in a more vulnerable position where their life and security is at risk. For this reasons, a court should find that the OIC is arbitrary and in contradiction to the principles of fundamental justice.

==== Conclusion ====

In this case the Court has enough evidentiary findings to conclude that the OIC breached section 7 of the Charter. The changes made by the Federal Government to the IFHP effectively deprived refugees seeking the protection of Canada of their right to life and security of the person and this deprivation is contrary to the principles of fundamental justice.

Therefore, the government should be directed to reestablish the publicly funded healthcare scheme that has been previously granted to refugees. The fact that the Charter does not contain a freestanding right to healthcare should not be an obstacle for the Court to make this direction as positive measures are recognized and mandated in the relevant international instruments ratified by Canada.

=== The scope of the court’s capacity to make informed, legitimate judgments about healt care programs. ===
We can determine the scope of application for section 7 of the Charter by looking at past jurisprudence. In ''Operation Dismantle'' there was an attempt to narrow the scope of section 7 of the Charter. Some of the justices involved stated that section 7 of the Charter did not confer any independent absolute right to life or security of the person. Justice Pratte stated section 7 should not be interpreted in a manner that would allow the Court to substitute their opinions for those of Parliament and the Executive on purely political questions. The question of health care for refugees is not one for the Court to decide under this interpretation of section 7 because it is a political question on what the Parliament or Executive should be doing in relation to health care for refugee claimants. The Court does not want to be in a situation where the decision it reaches substitutes that of the Executive. 

There are cases, however, where the Court has intervened and applied section 7 of the Charter to facilitate the right of an individual or group to challenge executive and governmental decision-making. In cases such as ''Kindler v. Canada (Minister of Justice and Reference re Ng Extradition'' (Canada) the Court showed considerable regard in applying section 7 to decisions by the Executive with respect to extradition. The Court held the position it had taken previously in ''Canada v. Schmidt'', because the death penalty would have applied to those that were extradited to the United States under an order by the Minister of Justice. The Court stated that there was no need for a condition that the death penalty would not apply. The rationale the Court used to come to this decision was, because there is no capital punishment in Canada, and there is no consensus of Canadians that capital punishment is morally abhorrent, that it would not be 'absolutely unacceptable' to allow extradition without conditions. The Court also stated that having conditions on the extradition would result in the imposition of the Canadian Charter on the United States which would have gone against the comity of nations. There were three dissenting justices and they concluded that the Minister of Finance should have attained assurances before permitting extradition. 

In this case the issue is not extradition but the care provided to individuals under IFHP. The Court can apply section 7 to this issue because there was care previously afforded to refugees that was then revoked. In relation to the scope of the court to determine whether or not section 7 challenges are valid. In the case of ''New Brunswick (Minister of Health and Community Services) v. G. (J.)'' the Supreme Court found that state removal of a child from a parent constituted a serious interference with the psychological integrity of the parent and therefore could not be done without a proper hearing. In this case the revocation of the IFHP was done without proper procedure and therefore could possibly be in breach of section 7. In ''New Brunswick (Minister of Health and Community Services) v. G. (J.)'' held that this taking of the child without proper procedural fairness and candidness was a violation of security of the person due to it affecting the parent psychologically. 

Following the reasoning found in the prior jurisprudence discussed above, the scope of the Court is fairly limited in relation to the application of section 7. The Court cannot make decisions that contravene the decisions made by the Executive. The scope of application of section 7 to allow the Court to do this is dependent on two key factors: 

Does the interpretation by the Court substitute its opinion for that of the Executive purely on political questions; and 

Does the application of section 7 have an extraterritorial application

== Peter and Young perspectives - Risks that arise when s. 7 is used to advance the interests of marginalized communities ==

=== Margot Young: ===

Young contends that the manner in which the claimants in PHS case ‘was cleared for that victory may compromise or constrain future constitutional arguments. The framing of the reality at issue and its relevance to the unpacking of the Charter's section 7 rights, retains too narrow a scope for these rights to be positioned as reliable triggers for progressive social transformation’ (p.223).

Because the courts accept that application of section 7 is not frozen and should be allowed to develop incrementally, ‘section 7 has been invoked in a broad range of claims and its ultimate import has yet to be determined, making it compelling but uncertain terrain for those who wish to push forward ambitious rights claims’ (p.237).

Rights under the Charter must do more than simply abandon the unfortunate … If not, rights analysis will ignore the clear message of so much social theory that individual actions and choices are meaningfully constrained, shaped, and made possible by larger systemic norms, structures, and institutions. (p.249)

The configured and contingent character of choice means that the criterion of choice is poorly fingered as a feature relevant to foreclosing or determining a rights analysis. The rights claims of these individuals thus risk being read in light of inaccurate depictions of choice and agency, as the vulnerabilities and constraints of marginality and extreme disadvantage may be the most difficult for the judges who sit in determination of these rights claims to discern and appreciate. (p.249)

By focusing too much on choice or agency, courts risk neglect of "the distinctively political aims of equalitarianism" relevant to both equality rights and liberty rights. The characteristic of a just society, grants to all citizens "effective access to the social conditions of their freedom at all times (p.250).

The critique of the relevance of choice is also a challenge to the picture of the citizen that has emerged as dominant in current, mainstream neo-liberal policy and politics. The result is that ‘structurally disadvantaged groups are 'collectively individualized' in popular cultural representations, in citizenship discourses, and in public policy’ (p.251).

The courts must understand how context subtly but powerfully shapes rights claims and state obligations under the Charter (p.253).

=== Andrew Petter: ===

Chaoulli demonstrate, not only do the disadvantaged have little to gain in the way of social benefits from the Charter, they have much to lose (p.127).

Notwithstanding testimony from experts that two-tier health care would hurt the economically disadvantaged, who are more likely to suffer from poor health and who cannot afford private insurance, three of the majority judges held that they had sufficient evidence to conclude that the legislation was ‘arbitrary’ and therefore contrary to ‘the principles of fundamental justice’ (p.119).

Charter rights are grounded in an ideology of liberal legalism that holds that the main enemy of freedom is not disparities in wealth or concentrations of private power, but the state (p.120).

The right to security of the person in section 7, according to the ideology of liberal legalism, does not require governments to implement measures to make people secure. It is only when the ‘normalcy’ of the market is disrupted by legislative or executive action that section 7 rights are engaged (p.121).

The Court rejected Gosselin claim that cuts to social assistance benefit left her in abject poverty, holding that section 7 did not place positive obligations on the state to ensure that Gosselin enjoyed security of the person, only negative obligations not to deprive her of such security’ (p.126)

Thus the Charter guarantees personal security not to individuals who ‘naturally’ lack such entitlements, but only to individuals who ‘naturally’ enjoy such entitlements and wish to resist government efforts to take them away or restrict their use (p.126).

Despite the Charter’s fine words, the social rights it confers do not speak to the security of all Canadians, nor to their actual equality. Thus while the Charter provides Gosselin no to call upon the state to provide her with food, clothing or shelter, it provides her the right to purchase private health insurance in the marketplace – if only she had the money to do so (p.127).

== Peter and Young perspectives - Advantages that arise when s. 7 is used to advance the interests of marginalized communities ==

=== Margot Young: ===

Young argues that ‘Charter issues need to be grounded in the richness of the claimants' circumstances. Yet the actual factors recognized and the import assigned to them leads to the reservations this argument expounds about doctrinal development of section 7’ (p.238).

Young also points out that the courts accept the application of section 7 of the Charter ‘should be allowed to develop incrementally’ and should not be seen as ‘frozen’ (p.237).

The findings in PHS case ‘establish[ed] a picture of injection drug addiction and use of supervised safe injection in which health issues are central and individual volition is downplayed. These contextual findings at the trial level, and in all three judgments of the Court of Appeal, are significant in two particular ways: first, in terms of the larger culture shift the case reflects and reinforces, and second, in relation to the legal argument accepted at each level of court’ (p.240).

The trial judge accepted also that ‘addiction and resort to Insite's services means that it was a simple step to see that fundamental interests protected under section 7 were at stake. The contextual underpinnings ensure that the interests protected under section 7 are given a deeper understanding that extends the notions of life, liberty, and security of the person into territory that is more responsive to the circumstances of the vulnerable individuals in each case’ (p.244-245).

‘The blanket prohibition against the possession of illicit drugs at Insite contribute[d] to the risk of death by the claimants’ (p.245). The right to life is engaged ‘because the risk of mortality’; right to liberty is infringed because of possible prosecution and imprisonment; security of the person is threatened because the CDSA has the effect of denying access to a health care facility …’ (p.245-246).

Choice-even a reasonable finding of the availability of meaningful choice-should perhaps never let the state off the hook for obligations under section 7. Instead, the focus should be on the state restriction at issue (p.250).

=== Andrew Petter: ===

Yet it is also the case that the Court over the past twenty years has shown that it has the ability to resist the Charter’s regressive tendencies when it chooses, both by being strategic in deciding when to defer to legislative choices and by developing creative mechanisms to moderate the impact of the Charter within the limits allowed by liberal legalism (p.128).

Dialogue theory encouraged judges to see their Charter role as being advocates rather than arbiters, and their judgments as being missives directed at government rather than verdicts directed at society—judicial activism (p.129)

Dialogue theory militates in favour of judicial restraint. The theory is best served by judges making ‘minimalist rulings’ that leave ‘the greatest scope possible for potential responses by the legislative and executive branches (p.130).

Some have suggested that the Court’s judgment was intended as a ‘wake up call’ to governments about the need to fix Medicare by reducing wait times for medically procedures. (p.119) First, there has in recent years been no lack of political pressure or commitment regarding the need to reduce wait times. (p.119) Second, by deciding that access to private health insurance is a Charter right, the Court has given constitutional legitimacy to those advocating a two-tier health care system for Canada. (p.119-120) Finally the Court appears to have acted with disregard for the trade implications of its decision, ignoring the Romanow Report’s admonitions that, to be protected as ‘public services’ under such agreements, health care services must be ‘universally accessible on the basis of need rather than the ability to pay’ and must be ‘financed out of public revenues’ (p.120).

=== Other perspectives ===

In Reference re Section 94(2) of the Motor Vehicle Act BC), the court explained that interest which is meant to be protected by the words ‘and the right not be deprived by thereof except in accordance with the principle of fundamental justice’ of section 7 are the life, liberty, and security of the person. (p.1162)

The ‘phrase of fundamental justice’ serves to establish the parameters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them to do so will strip the protected interests of much, if not most, of their content and leave the “right” to life, liberty, and security of the person in a sorely emaciated state. (p.1162)

In R v Morgentaler, the court held that the ‘right to liberty contained in section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private life (p.1174). It agreed that the right to “security of the person” under section 7 of the Charter protects both physical and psychological integrity of the individual. (p.1175)

In R v Morgentaler, the court concluded that section 251 of the Criminal Code ‘deprives a woman of their right to liberty and security of the person in a manner that does not accord with the principles of fundamental justice and in a manner that offends section 2(a) of the Charter. (p.1175) The court also held the violation cannot be justified under section 1 of the Charter.

== Bibliography ==

Andrew Petter, “Wealthcare: The Politics of the Charter Re-visited” in Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005).

Margot Young, “Context, Choice, and Rights: PHS Community Services Society v Canada (Attorney General” (2011) 44 UBC L Rev 221.

Sandbox:Charter s. 7 Refugee Health protection, Law 505

2015-11-21T22:04:44Z

JenniferFAgyei:

Sandbox:Charter s. 7 Refugee Health protection, Law 505

2015-11-21T21:55:52Z

JenniferFAgyei: /* Peter and Young perspectives */

Thread:Sandbox talk:Law 505 - Group 1/email 2015

2015-10-26T16:44:16Z

JenniferFAgyei: New thread: email 2015

-------- Original message --------
From: kimappotive@gmail.com
Date: 10-25-2015 5:15 PM (GMT-05:00)
To: JF A <jenagyei@hotmail.com>
Cc: Mukunthan Paramalingham <paramalingham@gmail.com>
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise
Excellent !!

Sent from my iPhone

Sandbox:Law 505 - Group 1

2015-10-25T19:35:39Z

JenniferFAgyei:

== '''Canada v. PHS Community Services Society [2011]''' ==

=='''Outline'''==

'''I. Background / fact of case'''

· Insite is a safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users.

a. '''Nature of addiction'''

·The plaintiffs and Canada agree that 'drug addiction is an illness' (para 47) and 'the need to obtain the substance by injection is a material part of the illness' (''PHS Community Services Society v Attorney General of Canada [2008],'' para 135).

b. '''Establishment of Insite'''

· It has operated under exemption in the Controlled Drugs and Substances Act (CDSA), section 56 (para 1).

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 (para 5).

'''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. The 'pith and substance of CDSA is a criminal law under section 91 (27) of the Constitution Act 1867' (''Factum of the appellants the Attorney General of Canada and Minister of Health for Canada'', para 44) as such Interjurisdictional immunity should apply in favor of the federal head / power. Alternatively, 'If conflict exist between provincial program and federal statute, it should be resolved by applying paramountcy doctrine... this will render the provincial legislation inoperative to the extent of inconsistency' (para 65).

b. The Charter should not be applied, addiction is a personal choice. 'The state is under no obligation to facilitate access to the particular service of supervised injection site, nor is it required to craft its laws so that there are no legal (psychological) impediments to such sites' (Ibid, para 90).

c. Even if section 4 (1) infringes on Section 7 of the Charter, 'it is by saved section 1 because the absolute prohibition is a reasonable limit prescribed by law on the right to life, liberty, and security of the person as can be demonstrably justified in a free and democratic society' (''PHS v Attorney General of Canada'' para 126).

'''V. Application of the Charter to Insite – is CDSA saved by section 1 of the Charter?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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

· First, immunity of the provincial health power had never been recognized in the jurisprudence.

· Second, claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction.

· 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. however, 'it took several years of direct action in the form of demonstrations, the creation of illegal safe injection sites, setting up unfunded drop-in centers, and the institution of needle exchanges and back-alley patrols, to begin to shift perceptions in both enforcement and health care circles towards a wider possibilities', (Lessard, "Jurisdictional Justice, Democracy and the Story of Insite", pp.105-106). 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. Lessard contends 'judicial determination of where jurisdictional authority resides in a democratic polity - a decision that is at base one about the structure of self-government - should take account of these elements of functional self-government or "democracy on the ground"' (pp. 107-108). Instead 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.

== '''Reference''' ==

''PHS Community Services Society v Attorney General of Canada", 2008 BCSC 661, online: http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc661/2008bcsc661.html

''Factum of the appellants the Attorney General of Canada and Minister of Health for Canada'', available from the Supreme Court of Canada website: http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/33556/FM010_Appellants_Attorney-General-of-Canada-and-Minister-of-Health-for-Canada.pdf

Hester, Lessard, "''Jurisdictional Justice, Democracy and the Story of Insite''" (2012) 19:1, 2 & 3, Community Forum / Forum Constititionnel (2011) No 3:93

Thread:Sandbox talk:Law 505 - Group 1/email Oct 25 2015 (2)

2015-10-25T19:31:42Z

JenniferFAgyei: New thread: email Oct 25 2015

From: Kim Appotive
Sent: Sunday, October 25, 2015 10:31 AM
To: Jennifer Agyei - jenagyei@hotmail.com
Cc: Mukunthan Paramalingham
Subject: RE: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Hi,
I think it looks great. Perhaps if possible make the second article heading larger, to match the first one. Other than that post the link!
Thanks,
Kim

Thread:Sandbox talk:Law 505 - Group 1/email Oct 25 2015

2015-10-25T19:30:15Z

JenniferFAgyei: New thread: email Oct 25 2015

From: JF A
Sent: Saturday, October 24, 2015 11:02 PM
To: Mukunthan Paramalingham; Kim Appotive
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Hello Everyone,

I have made some changes and added references to group work. Please review and let me know if it is ok to post link on discussion board.
Thanks,

Jennifer

Sandbox:Law 505 - Group 1

2015-10-25T19:27:02Z

JenniferFAgyei:

Thread:Sandbox talk:Law 505 - Group 1/email Oct (4)

2015-10-25T03:01:11Z

JenniferFAgyei: New thread: email Oct

On 24 October 2015 at 18:50, Mukunthan Paramalingham <paramalingham@gmail.com> wrote:

My apologies, part 1 breaks it down. I was thinking of it in a slightly different manner.

I wish I could have been more helpful, please let me know if there is anything else you need from my end.

Muku

Thread:Sandbox talk:Law 505 - Group 1/email Oct (3)

2015-10-25T03:01:10Z

JenniferFAgyei: New thread: email Oct

Thread:Sandbox talk:Law 505 - Group 1/email Oct (2)

2015-10-25T03:01:09Z

JenniferFAgyei: New thread: email Oct

Thread:Sandbox talk:Law 505 - Group 1/email Oct

2015-10-25T03:01:08Z

JenniferFAgyei: New thread: email Oct

Thread:Sandbox talk:Law 505 - Group 1/email Oct 24 2015 (4)

2015-10-25T02:59:04Z

JenniferFAgyei: New thread: email Oct 24 2015

On 24 October 2015 at 18:47, Mukunthan Paramalingham <paramalingham@gmail.com> wrote:
Hi Kim and Jennifer,
Do you want me to provide input for part 1? Maybe I'm missing something, if so my apologies.
Let me know how you guys want to move forward.
Muku

Thread:Sandbox talk:Law 505 - Group 1/email Oct 24 2015 (2)

2015-10-25T02:57:51Z

JenniferFAgyei: New thread: email Oct 24 2015

On 24 Oct 2015 13:40, "JF A" <jenagyei@hotmail.com> wrote:
Hello Everyone,

It’s done. We can continue to work on it and decide which version to use

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 24 2015

2015-10-25T02:57:08Z

JenniferFAgyei: New thread: email Oct 24 2015

From: Kim Appotive
Sent: Saturday, October 24, 2015 6:00 AM
To: Jennifer Agyei - jenagyei@hotmail.com
Cc: Mukunthan Paramalingham
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Looks great!
Can we just add the name of article - CANADA v. PHS COMMUNITY SERVICES SOCIETY [2011] at the top, above "outline," if possible?

Thanks,
Kim

Thread:Sandbox talk:Law 505 - Group 1/Oct 24 2015

2015-10-25T02:54:20Z

JenniferFAgyei: New thread: Oct 24 2015

On 24 Oct 2015 03:35, "JF A" <jenagyei@hotmail.com> wrote:
Hello Everyone,

Wiki link is created on wiki ubc, link is below. The format isn’t right, I’ve tried to format a few times but it still show up as is on page

http://wiki.ubc.ca/Sandbox:Law_505_-_Group_1

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015 (6)

2015-10-25T02:53:26Z

JenniferFAgyei: New thread: email Oct 23 2015

From: JF A
Sent: Friday, October 23, 2015 6:31 PM
To: Mukunthan Paramalingham
Cc: Kim Appotive
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Ok Muku, great work.

Thread:Sandbox talk:Law 505 - Group 1/Oct 23 2015 (3)

2015-10-25T02:52:13Z

JenniferFAgyei: New thread: Oct 23 2015

-------- Original message --------
From: Mukunthan Paramalingham <paramalingham@gmail.com>
Date: 10-23-2015 6:25 PM (GMT-05:00)
To: JF A <jenagyei@hotmail.com>
Cc: Kim Appotive <kimappotive@gmail.com>

Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Yep, saw this but looked fairly complicated in terms of setup. The instructions say that he would like a link, I'll check into see if it really matters.

Thread:Sandbox talk:Law 505 - Group 1/Oct 23 2015 (2)

2015-10-25T02:51:36Z

JenniferFAgyei: New thread: Oct 23 2015

On 23 October 2015 at 18:14, JF A <jenagyei@hotmail.com> wrote:
Hi Everyone,
That’s great work Muku. However I think we have to post it on UBC wiki website. The link below is here I went to create the one that reactivate the old/previous group. Check it out, maybe you can move the work there. You need your ssc log in info

http://wiki.ubc.ca/Category:LAW

Thanks,

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015 (5)

2015-10-25T02:51:03Z

JenniferFAgyei: New thread: email Oct 23 2015

From: Mukunthan Paramalingham
Sent: Friday, October 23, 2015 5:47 PM
To: Kim Appotive

Cc: Jennifer Agyei - jenagyei@hotmail.com
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

I've setup the account and put in our draft version. Having some technical issues on how to make it public. I have emailed wikispaces - should hear back soon and hope to have it resolved.

Both of you should have received an invite - accept that. It should give you access.

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015 (4)

2015-10-25T02:50:35Z

JenniferFAgyei: New thread: email Oct 23 2015

On 23 October 2015 at 14:17, Kim Appotive <kimappotive@gmail.com> wrote:
Sounds good thanks Jennifer!
Mukunthan,
Please send the link by Saturday night BC time, so we can look at it before the Sunday night BC deadline. Let us know for you encounter any issues.
Thanks and have a good weekend everyone!

Thread:Sandbox talk:Law 505 - Group 1/Oct 23 2015

2015-10-25T02:49:53Z

JenniferFAgyei: New thread: Oct 23 2015

On 23 Oct 2015 18:56, "JF A" <jenagyei@hotmail.com> wrote:

Hello Everyone,

Ok at Kim and Muku, however I think you take a look at previous year design and any wikipedia article when you have time today. Do online wikipedia search and click on any article to see what I’m trying to say/explain. I’m not saying we have to copy it but I think we need to provide reference as with any wiki search/article to make it look like an article for wikipedia. It just a thought.

We don’t have to redo the work we have already done, maybe work on the structure and design of what we have.

Thanks,

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Octb 23 2015

2015-10-25T02:49:23Z

JenniferFAgyei: New thread: email Octb 23 2015

From: Kim Appotive
Sent: Friday, October 23, 2015 11:35 AM
To: Jennifer Agyei - jenagyei@hotmail.com
Cc: Mukunthan Paramalingham
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Hi everyone,
I think we stick with what we have... Can you erase last year's and paste ours?
If your not able to - Mukunthan, I think it's only fair you set up the wiki page as Jennifer and I have done all the work.
Thanks for the advice Jennifer, it's hard when your education is from different countries!

Thread:Sandbox talk:Law 505 - Group 1/eamil Oct 23 2015

2015-10-25T02:48:46Z

JenniferFAgyei: New thread: eamil Oct 23 2015

On 23 Oct 2015 16:25, "JF A" <jenagyei@hotmail.com> wrote:
Hello Kim and Muku,

I tried creating our group on wiki but it seem to have reactivated an old group from last year so I'm confused. I've never used this type of collaborative tool before.

Muku are you any good with this tech stuff? Maybe we need to continue our work from last years group but I'm not sure.

Also we may need to do more work on our project. Group 1 and 2 from last years structure is very different from ours. It may not matter but we need to decide as a group to leave it as is or do more work on it.

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015 (3)

2015-10-25T02:46:02Z

JenniferFAgyei: New thread: email Oct 23 2015

-------- Original message --------
From: JF A <jenagyei@hotmail.com>
Date: 10-23-2015 8:45 AM (GMT-05:00)
To: Kim Appotive <kimappotive@gmail.com>
Cc: Mukunthan Paramalingham <paramalingham@gmail.com>
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise
Wow Kim, you've been busy. It looks good to me. Muku what do you think? Muku can make changes if desired and we can start wiki link today or the very least tomorrow.

I watched the tutorial video on how to create wiki and seems all of our correspondence back and forth should have been done wiki. I'll watch video again to see if I'm able to start it today.

@ Kim, good luck with the licensing process here and the UK. It was hard to find pulpillag when I graduated and so I stayed for 6 months and came home. I was called to the bar there but did not complete my pulpillag so i dont know what that means for me in terms of my license. It's good you've started NCA process early, I didn't do that and trying to get transcripts together was a nightmare. I wish I had done that; if you decide to come back to complete licensing process in Canada, make sure you request all required documents before you leave London to prevent delays and unnecessary phone calls and emails.

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015 (2)

2015-10-25T02:45:06Z

JenniferFAgyei: New thread: email Oct 23 2015

-------- Original message --------
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.

Thread:Sandbox talk:Law 505 - Group 1/email Oct 23 2015

2015-10-25T02:44:23Z

JenniferFAgyei: New thread: email Oct 23 2015

On 23 Oct 2015 03:42, "JF A" <jenagyei@hotmail.com> wrote:
Hello Kim and Muku, and
.
I couldn’t figure out where to incorporate the following with the great work Kim has already done. Muku, maybe you can incorporate info below into what Kim sent. I think the work is due the latest Sunday 11:59PM Vancouver time not on Monday. The is scheduled internet work so there will be no internet, it is very likely will extend it to Monday.

Q 1. Outline
I. Background / fact of case
a. Nature of addiction
b. Establishment of Insite
c. Community and Political support for Insite
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

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.

Thread:Sandbox talk:Law 505 - Group 1/email Oct 22 2015 (5)

2015-10-25T02:43:19Z

JenniferFAgyei: New thread: email Oct 22 2015

From: Mukunthan Paramalingham
Sent: Thursday, October 22, 2015 6:37 PM
To: Kim Appotive
Cc: JF A
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Hello group,

I'll add onto the summary as mentioned - I think that works well.

Basically, I think we all need to have a go at it and combine it to see what works best.

And Kim, thanks for starting this off. It looks great.

What is the deadline for this?

Should we set an internal deadline?

A friend of mine in the class mentioned that she thinks its Monday that its due.

Muku

Thread:Sandbox talk:Law 505 - Group 1/email Oct 22 2015 (4)

2015-10-25T02:42:48Z

JenniferFAgyei: New thread: 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.

Thread:Sandbox talk:Law 505 - Group 1/email Oct 22 2015 (3)

2015-10-25T02:41:40Z

JenniferFAgyei: New thread: email Oct 22 2015

On Thu, Oct 22, 2015 at 3:00 PM, JF A <jenagyei@hotmail.com> wrote:
Hello Kim and Mukunthanm

I think we should try and read the following 2 articles againt Insite:

Lessard article but have not read it, I think it oppose keeping Insite open.
And/or

The other option is “Factum of the appellants the Attorney General of Canada…” – that opposes keeping Insite open.

I have already read PHS community SS v Attorney General of Canada 2008, it supports keeping Insite open so we can used it in support of keeping Insite open

The above 3 articles should be enough to complete what we need to do in the assignment.

The assignment involves doing an outline of topics we would discuss or take into account if we are the judges presiding over the case. I thought an outlines involves outlining issues we would consider if we are/were the judges on the case using headings and subheadings to address the issues. Am I misunderstanding what an outline entails? Is the outline the same as doing a case summary?

Should we contact Professor Danay for clarification?

Thank you,

Jennifer

Thread:Sandbox talk:Law 505 - Group 1/email Oct 22 2015 (2)

2015-10-25T02:40:06Z

JenniferFAgyei: New thread: email Oct 22 2015

From: Kim Appotive
Sent: Thursday, October 22, 2015 3:20 AM
To: Mukunthan Paramalingham
Cc: Jennifer Agyei - jenagyei@hotmail.com
Subject: Re: 2015W1-LAW505-002-Canadian Public Law-DANAY: Wiki group work/exercise

Hi Jennifer and Mukunthan,
Sounds good! Thanks for your understanding in my lack of preparation but I promise not to bring the team down. What a small world that you went to City, how did you like London? What have you been up to since?
Seems like we can use the the work you've done already and choose,
Pro insite -
PHS community SS v Attorney General of Canada 2008, it supports keeping Insite open; PHS was successful in court.
Or
I looked through ‘Factual of the respondents PHS SS, Wilson and Tomie” – it support keeping Insite open
Against insite:
Lessard article but have not read it, I think it oppose keeping Insite open.
Or
The other option is “Factum of the appellants the Attorney General of Canada…” – that opposes keeping Insite open

Jennifer you can reply with the final articles you think best, as you are very prepared! And we only need two, I believe all we do is summarise the articles? This shouldn't take too long, since we're three people we can either just choose three articles or two people summarize and one person be the tech wiz and figure out how to get it into a 'wikipage'.
Apologies if you are getting this email very early it is 8am here!
Cheers

Thread:Sandbox talk:Law 505 - Group 1/correspondance between members

2015-10-25T02:34:27Z

JenniferFAgyei: New thread: correspondance between members

-------- Original message --------
From: "Kim Appotive - kimappotive@gmail.com" <do-not-reply@it.ubc.ca>
Date: 10-21-2015 3:36 PM (GMT-05:00)
To:
Subject: 2015W1-LAW505-002-Canadian Public Law-DANAY: Our Group Project
Hi Jennifer and Mukunthan,

I thought it would be best to start an email thread as we are working together on this group project to create a wiki page. The description as provided online is below.

Perhaps best moving forward would be to divide up the readings, I numbered them 1-7, as there is 3 of us, we can each do 2 readings, and one of us will do 3. Make an outline on the readings and then compile it online in a wiki page. Would that work for everyone or would you have any suggestions on how to tackle this project?

I look forward to working together on this project.

Kind regards,

Kim

Outline:

The purpose of this review exercise is to allow students to consolidate their knowledge of Canadian federalism law, and apply that knowledge to a specific case scenario. It will also provide the opportunity to reflect on the political, philosophical and historical context of judgments about the division of powers.

For this exercise, you will be put randomly into groups. With your fellow group members, reflect on the following materials. Collaborate with your group in a wiki (to find out more about wiki visithttp://elearning.ubc.ca/toolkit/wiki/) to write an outline addressing the questions below. Share your outline with the class by providing a link to your wiki in the discussion forum for this exercise. Review the outlines of at least two other groups.

The context of this exercise is the legal and political debate surrounding Insite, which is a “safe injection site” located in Vancouver. It provides a clean, controlled environment where drug users can inject their own drugs under the supervision of clinical staff. The operation of Insite has been the source of ongoing controversy. Health care professionals and other supporters claim that it helps avoid overdoses and mitigates the harms caused when overdoses do occur. Supporters also claim that the existence of Insite helps users avoid unsafe practices like needle-sharing, which reduces the spread of infections diseases such as HIV. Insite is based, in part, on the idea that drug addiction is properly understood as a health care problem, not a criminal one. In contrast, critics argue that there is insufficient evidence to support many of the positive benefits claimed on behalf of Insite, and that it can create an enabling environment for drug use.

Although there are numerous constitutional questions about Insite, we will focus on those questions concerning the division of legislative powers between the provincial and federal governments.

Read the following texts:

1. “Insite” entry on Wikipedia: http://en.wikipedia.org/wiki/Insite. In addition to reviewing the main entry, choose two or three of the listed reports or media articles to get a sense of the range of perspectives that exist on this issue. Consider choosing commentary from groups and individuals who support the existence of Insite and some from those who oppose it. Think about whether their views and reasons are grounded in scientific, medical, religious, political or legal arguments, and to what audience they are directing their comments.

2. PHS Community Services Society v. Attorney General of Canada, 2008 BCSC 661, online:http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc661/2008bcsc661.html [read paras. 1-89, 100-121]

3. PHS Community Services Society v. Canada (Attorney General), 2010 BCCA 15, online:http://www.canlii.org/en/bc/bcca/doc/2010/2010bcca15/2010bcca15.html [read paras. 1, 80-177, 200-245]

4. Factum of the appellants the Attorney General of Canada and Minister of Health for Canada, available from the Supreme Court of Canada website: http://www.scc-csc.gc.ca/case-dossier/info/fac-mem-eng.aspx?cas=33556 [read paras. 1-80, 92-93]

5. Factum of the respondents PHS Community Services Society, Wilson and Tomic, available from the Supreme Court of Canada website: http://www.scc-csc.gc.ca/case-dossier/info/fac-mem-eng.aspx?cas=33556 [read paras. 1-72]

6. Hester Lessard, “Jurisdictional Justice, Democracy and the Story of Insite” (2012) 19:1, 2 & 3 Constitutional Forum / Forum constitutionnel (2011) No 3: 93.

7. Webcast of the SCC hearing: available from the Supreme Court of Canada webiste: http://www.scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=33556. Watch some or all of the presentations by at least two parties before the court.

**please do not read the Supreme Court of Canada's decision in this case until after you have completed the review exercise. (Recall that your success in this review exercise is not related to coming to the same conclusion as the SCC, and reading the case in advance will make this exercise less interesting and less valuable for you and your colleagues).

Questions:

1. 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. 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.

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?

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, online:http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7960/index.do [paras. 1-20, 45-73]

Sandbox:Law 505 - Group 1

2015-10-25T02:30:55Z

JenniferFAgyei:

== '''Canada v. PHS Community Services Society [2011]''' ==

=='''Outline'''==

'''I. Background / fact of case'''

· Insite is a safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users.

a. '''Nature of addiction'''

·The plaintiffs and Canada agree that 'drug addiction is an illness' (para 47) and 'the need to obtain the substance by injection is a material part of the illness' (''PHS Community Services Society v Attorney General of Canada [2008],'' para 135).

b. '''Establishment of Insite'''

· It has operated under exemption in the Controlled Drugs and Substances Act (CDSA), section 56 (para 1).

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 (para 5).

'''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. The 'pith and substance of CDSA is a criminal law under section 91 (27) of the Constitution Act 1867' (''Factum of the appellants the Attorney General of Canada and Minister of Health for Canada'', para 44) as such Interjurisdictional immunity should apply in favor of the federal head / power. Alternatively, 'If conflict exist between provincial program and federal statute, it should be resolved by applying paramountcy doctrine... this will render the provincial legislation inoperative to the extent of inconsistency' (para 65).

b. The Charter should not be applied, addiction is a personal choice. 'The state is under no obligation to facilitate access to the particular service of supervised injection site, nor is it required to craft its laws so that there are no legal (psychological) impediments to such sites' (Ibid, para 90).

c. Even if section 4 (1) infringes on Section 7 of the Charter, 'it is by saved section 1 because the absolute prohibition is a reasonable limit prescribed by law on the right to life, liberty, and security of the person as can be demonstrably justified in a free and democratic society' (''PHS v Attorney General of Canada'' para 126).

'''V. Application of the Charter to Insite – is CDSA saved by section 1 of the Charter?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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

· First, immunity of the provincial health power had never been recognized in the jurisprudence.

· Second, claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction.

· 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.

== '''Reference''' ==

''PHS Community Services Society v Attorney General of Canada", 2008 BCSC 661, online: http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc661/2008bcsc661.html

''Factum of the appellants the Attorney General of Canada and Minister of Health for Canada'', available from the Supreme Court of Canada website: http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/33556/FM010_Appellants_Attorney-General-of-Canada-and-Minister-of-Health-for-Canada.pdf

Sandbox:Law 505 - Group 1

2015-10-25T01:19:23Z

JenniferFAgyei:

== '''Canada v. PHS Community Services Society [2011]''' ==

=='''Outline'''==

'''I. Background / fact of case'''

· Insite is a safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users.

a. '''Nature of addiction'''

·The plaintiffs and Canada agree that 'drug addiction is an illness' (para 47) and 'the need to obtain the substance by injection is a material part of the illness' (''PHS Community Services Society v Attorney General of Canada [2008],'' para 135).

b. '''Establishment of Insite'''

· It has operated under exemption in the Controlled Drugs and Substances Act (CDSA), section 56 (para 1).

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 (para 5).

'''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 / power

b. The Charter should not be applied, addiction is a personal choice

c. Even if section 4 (1) infringes on Section 7 of the Charter, 'it is by saved section 1 because the absolute prohibition is a reasonable limit prescribed by law on the right to life, liberty, and security of the person as can be demonstrably justified in a free and democratic society' (para 126).

'''V. Application of the Charter to Insite – is CDSA saved by section 1 of the Charter?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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

· First, immunity of the provincial health power had never been recognized in the jurisprudence.

· Second, claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction.

· 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.

Sandbox:Law 505 - Group 1

2015-10-24T12:27:46Z

JenniferFAgyei:

== '''Canada v. PHS Community Services Society [2011]''' ==

=='''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?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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.

Sandbox:Law 505 - Group 1

2015-10-24T12:21:39Z

JenniferFAgyei:

== '''CANADA v. PHS COMMUNITY SERVICES SOCIETY [2011]''' ==

'''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?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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.

Sandbox:Law 505 - Group 1

2015-10-24T02:49:28Z

JenniferFAgyei:

'''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?'''

· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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.

Sandbox:Law 505 - Group 1

2015-10-24T02:47:29Z

JenniferFAgyei:

Sandbox:Law 505 - Group 1

2015-10-24T02:43:21Z

JenniferFAgyei:

Sandbox:Law 505 - Group 1

2015-10-24T02:38:26Z

JenniferFAgyei:

'''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?'''
· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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. ==

Sandbox:Law 505 - Group 1

2015-10-24T02:31:00Z

JenniferFAgyei: Created page with "'''Outline''' '''I. Background / fact of case''' · Insite = safe injection facility in Vancouver that provides medical supervision to intravenous (illegal) drug users. a. '..."

'''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?'''
· The court ruled that due to the severity of the rights affected, right to life, liberty and security of a person, CDSA cannot be justified as a reasonable limit in a democratic society.

'''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. ==