Course:Law3020/2014WT1/Group J

=Table of Contents=

=Canada (Attorney General) v PHS Community Services Society=

Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (PHS) is a complex case which concerns constitutional and criminal law matters.

Facts:

In the 1990‘s, despite government efforts, there was a clear failure to effectively control injection drug use in the Vancouver area known as the downtown eastside (DTES). The frequency of HIV/AIDS and hepatitis C in the DTES had reached epidemic levels. The situation demanded a new way to try and provide health care to the marginalized population of the area that would assist them throughout the treatment of their drug addictions. After careful deliberation, the proposed solution was to provide a facility for the safe injection of illegal drugs under strict policies and procedures. For example, a user would be required to check in, sign a waiver, have their drug use supervised by a health care provider, and be monitored after injection. This novel approach required an exemption under s. 56 of the Controlled Drug and Substance Act (CDSA) from the criminal prohibitions of possession and trafficking of controlled substances which is granted at the discretion of the Minister of Health (Minister). The relevant provisions of the CDSA pertaining to this case include:

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

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

56 The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class therefore from the application of all or any provision of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.

In 2003, the new health clinic, Insite, opened in the DTES after it was granted a conditional exemption under s.56. Insite received the support of the Vancouver police as well as the municipal and provincial governments. In 2006 and again in 2007, the Minister granted further temporary exemptions. Insite was having a positive impact; the facility was saving lives and improving health without increasing drug use and crime. However, the Minister did not extend an exemption to Insite in 2008 despite these positive results, which prompted an action which was aimed at keeping Insite open.

At trial, the judge determined that ss. 4(1) and 5(1) of the CDSA violated s. 7 of the Canadian Charter of Rights and Freedoms (Charter) and Insite was granted a constitutional exemption which permitted it to continue operating without consequence from the federal drug laws. This decision was appealed and dismissed by the Court of Appeal, which upheld the trial judge's decision and also held that the doctrine of interjurisdictional immunity applied. The decision was once again appealed.

Issues:

The following issues were considered by the Supreme Court of Canada (SCC): whether ss. 4(1) and 5(1) of the CDSA were constitutionally inapplicable to the activities of Insite's staff and clients as per the division of powers; and whether the abovementioned sections of the CDSA infringed the rights guaranteed by s. 7 of the Charter, and, if so, whether the infringement was justified under s. 1.

Analysis:

Division of Powers-

The SCC determined that the criminal prohibitions on possession and trafficking under the CDSA were constitutionally valid and applied to Insite in accordance with the division of powers because: (1) the impugned provisions were, in pith and substance, valid exercises of the federal criminal law power despite an incidental effect on regulating provincial health institutions; (2) provincial programmes created in the public interest are not exempt, by virtue of this interest, from the operation of criminal laws unless the law is expressly or impliedly so limited and the CDSA contains no such limit; (3) the doctrine of interjurisdictional immunity does not apply because no delineated core of the provincial health power was established and the doctrine has historically been applied narrowly; and (4) in the absence of constitutional immunity, federal law trumps provincial legislation or policies that conflict with it and, thus, the federal law constrains Insite's operations.

Section 7 of the Charter-

The SCC noted that s. 4(1) of the CDSA engages s. 7 of the Charter, and directly impacts the rights of Insite's employees (liberty) and clients (life, liberty, and security of the person). However, due to the discretionary power of the Minster to grant exemptions from s. 4(1), it engages with individuals' rights in a manner that complies with the principles of fundamental justice and, thus, does not violate s. 7.

Despite this determination, the court articulated that the Minster's discretionary power is not absolute; it must comply with the Charter. Further, nothing supports the position that the deprivation the claimant's would experience was on account of personal choice as opposed to government action based on the following: (1) the trial judge found that addition is a disease that impairs control over addictive substances; (2) the morality of the activity regulated by the law does not factor into the initial stage of determining whether the law engages s. 7; (3) and there are a variety of restrictions based on the complexity surrounding the issue of illegal drug use and addiction. The court clarified that the issue is whether Canada has limited the claimants' rights in a manner that violates the Charter.

The Minister's refusal to grant Insite an exemption engaged s. 7 of the Charter and contravened the principles of fundamental justice. The Minster made the decision as he reviewed the application and denied the exemption and if the trial judge had not ordered an interim order, the Minister's decision would have denied drug users access to Insite's services, which would have posed a threat to their health and their lives. Finally, the limit is not in accordance with the principles of fundamental justice because: (1) it undermines the purpose of the CDSA, which is the protection of health and public safety, making it arbitrary; (2) and during the time of Insite's operation, it has been established that lives were saved without any discernable negative impact on Canada's public safety and health objectives, making it grossly disproportionate. As a result, the SCC determined that there is no justification for the s. 7 infringement.

Decision:

The Supreme Court of Canada held that the concerned provisions of the CDSA were valid and did not intrude upon provincial jurisdiction. In addition, while the provisions themselves did not violate s.7, the Minister’s failure to provide an exemption did and he was ordered to extend an exemption under s. 56 of the CDSA to allow Insite to continue operating.