Canada: Constitutional Division Of Powers – I Nterjurisdictional Immunity – Canadian Charter Of Rights And Freedoms – Life, Liberty And Security Of The Person – Principles Of Fundamental Justice – Ministerial Discretion
Canada (Attorney General) v PHS Community Services, 2011 SCC 44
(Released September 30, 2011)
The Supreme Court of Canada unanimously ordered that the federal
Minister of Health (the "Minister") must
exempt Insite, a safe drug injection facility in Vancouver's
Downtown Eastside, from provisions of the Controlled Drugs and
Substances Act ("CDSA").
Insite has provided various medical services, including
supervised injections of controlled substances, to intravenous drug
users since 2003. The Insite facility was able to operate legally
between 2003 and 2008 under a discretionary exemption by the
Minister pursuant to s. 56 of the CDSA, which allows for targeted
ministerial exemptions necessitated by medical, scientific, or
other public interest purposes. In 2008, the Minister indicated
that he did not intend to grant a continued exemption. The Supreme
Court considered the legislative scheme and the Minister's
decision in light of the Canadian Charter of Rights and Freedoms
and the constitutional division of powers.
The Court rejected an argument that the application of the CDSA
to Insite ran afoul of the constitutional division of powers. The
Court concluded that the CDSA was a valid exercise of the federal
criminal law power, and that the doctrine of interjurisdictional
immunity did not render the CDSA inapplicable to Insite as an
impermissible federal intrusion into the core of a provincial thing
or undertaking. In so deciding, the Court noted that no other cases
had recognized a protected core of provincial power over health;
that the claimants had failed to delineate any meaningful core; and
that recognizing a protected core of provincial power over health
may give rise to legal vacuums with respect to such issues as human
cloning or euthanasia.
The Court further held that the legislative scheme created by
the CDSA complied with s. 7 of the Charter. Although the life,
liberty, and security of the person interests of Insite staff and
clients were engaged by the CDSA prohibitions against possession of
narcotics, the s. 56 ministerial exemption served as a "safety
valve" to prevent arbitrary, overbroad, or disproportionate
application of the law.
The Court found that the Minister's decision not to continue
Insite's exemption pursuant to s. 56 of the CDSA did breach s.
7 of the Charter. The life, liberty, and security of the person
interests of Insite staff and clients were engaged by the
application of the prohibition against possession of narcotics to
the Insite facility because of both the possibility of imprisonment
for contravention of the CDSA and the serious health and safety
interests at stake for Insite clients. The Court further found that
the Minister's failure to grant an exemption to Insite was
contrary to the principles of fundamental justice since it was both
arbitrary and grossly disproportionate with reference to the
CDSA's dual purposes of protecting health and public safety.
The Court relied on the trial judge's factual findings that the
life-saving benefits of Insite had been proven, and that there was
no discernable negative impact to public health and safety
The Court emphasized that the decision was not "an
invitation for anyone who so chooses to open a facility for drug
use under the banner of a 'safe injection facility'"
(at para 140), and that the holdings in this case were dependent on
the specific factual findings that the Insite facility reduced
death and disease while having no negative impact on legitimate
criminal law objectives.
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