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.

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, but due to the discretionary power of the Minster to grant exemptions from s. 4(1), it does so in a manner that complies with the principles of fundamental justice. Section 4(1) directly engages the s. 7 Charter rights of Insite's employees (liberty) and clients (life, liberty, and security).

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.

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]