Course:Law3020/2014WT1/Group J

Canada (Attorney General) v. PHS Community Services Society

In the 1990‘s, despite government efforts, there was a clear failure to effectively control injection drug-use in the Vancouver area known as downtown eastside (“DTES”). The frequency of HIV/AIDS and hepatitis C in DTES had reached epidemic levels. The situation demanded a new way to try and provide health care to drug addicts that would assist them throughout the treatment of their disease. 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. At no time was Insite to provide users with any drugs. This novel approach conflicted with the law governing controlled drugs and substances under federal legislation. The Controlled Drug and Substance Act (“CDSA”) contains the following provisions regulating the possession and trafficking of drugs

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.

Under s.56 of CDSA, the Federal Minister of Health (“Minister”) was able to grant exemptions for medical and scientific purposes:
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, a new health clinic opened in 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 government.

In 2006, and again in 2007, the Minister granted temporary exemptions. Insite was having a positive impact, limiting drug overdoses, the spread of disease and drug- preventable related deaths. It also offered services in counselling and drug rehabilitation. However, despite the positive results, it was anticipated there would be a future issue of acquiring an exemption, without which, Insite could not operate.

In 2008, the Minister did not extend the exemption. Insite argued that the division of powers did not allow the federal government to rule on provincial health facilities under ss. 92(7) (13) (16). 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]