Course:Law3020/2014WT1/Group J

Canada (Attorney General) v PHS Community Services Society

Canada (Attorney General) v PHS Community Services Society (PHS) is a complex case which concerns constitutional and criminal law matters. 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 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. The Minister did not extend an exemption to Insite in 2008 despite these positive results, which prompted an action to keep Insite open.

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

Insite (appellant) argued that the division of powers did not allow the federal government to rule on provincial health facilities under ss. 92(7) (13), and (16) of the Canadian Charter of Rights and Freedoms (Chrater). The claimants also argued that the impugned provisions of CDSA violated s.7 Charter rights by not making these potentially life-saving services available to Insite users.

Ultimately the Supreme Court of Canada ruled on the matter. The CDSA was valid and did not infringe upon provincial jurisdiction.The delivery of health care services does not constitute a protected core of the provincial power over health, and is therefore immune from federal interference. It is found that while the provisions themselves did not violate s.7, the Minister’s failure to provide an exemption did.The Federal Health Minister was ordered to extend an exemption of the application of the CDSA to allow Insite to continue operating.

Please click on the links below to access the respective theoretical approach

Created by X1,X2,[X3], X4
Legal Perspectives		Legal Philosophers
1	Natural Law	Thomas Aquinas
2	Legal Positivism	[John Austin,HLA Hart, Jeremy Bentham,Joseph Raz]
3	Separation Theory	[HLA Hart & Lon Fuller]
4	System of Rights	Ronald Dworkin
5	Liberty and Paternalism	[John Stuart Mill & Gerald Dworkin]
6	Law as Efficiency	Susan Dimock
7	Feminist Jurisprudence	Patricia Smith & Catharine A. Mackinnon
[Professor Margaret Hall]