Hopeful result, unclear implications: a comment on Canada (Attorney General) v. PHS Community Services Society.

• Author: Sheldon, C. Tess

Introduction

On September 30, 2011, the Supreme Court of Canada (SCC) issued its highly anticipated written decision on the constitutional implications of the federal government's refusal to renew an exemption to a supervised injection facility in Vancouver, Insite. (1) The exemption renewal had been sought to allow the facility to continue operating free from federal drug laws that prohibit illegal drug possession and trafficking. The SCC was called upon, among other things, to balance the competing interests of both public safety (prohibiting possession and trafficking of illegal drugs) and public health (support for drug users to reduce health issues associated with injection drug use). In a unanimous decision authored by its Chief Justice, the SCC ruled that failing to renew the exemption contravened the claimants' rights to life, liberty and security of the person. The Court ordered an immediate exemption for Insite so that it could continue operating as it was under its previous exemption.

This paper considers whether and how the decision in Canada (Attorney General) v PHS Community Services Society might impact on the operation of future Canadian supervised injection facilities. After a background section about Insite and Canada's constitutional framework and relevant legislation, we review the lower court decisions, in so far that they assist in understanding the SCC's decision. Next, we review the appeal decision highlighting two notable aspects of that ruling relevant to this paper. Last, we explore ideological opposition to supervised injection sites and the possible implications of the Insite decision on the operation of future supervised injection facilities.

Background

Insite opened in September 2003 as North America's first government-sanctioned supervised injection facility (SIF). Since then it has provided clients with a facility to inject their own controlled drugs or substances under medical supervision. Insite and its staff do not provide the drugs or substances. Health Canada approved Insite's mandate to provide health care information, counseling and referrals, including to a detox and drug treatment centre located in the same building.

Insite operates in the Downtown East Side (DTES) of Vancouver, Canada under the authority of the Vancouver Coastal Health Authority (VCHA). The DTES has a high concentration of those using drugs and is "home to the poorest and most vulnerable people in Canada." (2) In the 1990s, the Province of British Columbia, through the VCHA, declared a public health emergency because the health situation for injection drug users reached "crisis levels." (3) Reports indicated exponential increases in fatal and non-fatal overdoses and increased rates of HIV/AIDS as well as hepatitis A, B and C infections. (4)

Insite could only operate if it had an exemption from the federal criminal law, the Controlled Drugs and Substances Act (CDSA), (5) which prohibits possession and trafficking of controlled substances. In 2003, the federal Minister of Health granted Insite a statutory exemption to operate, however, in 2008, the federal government did not extend the exemption.

The goals of SIFs are to reduce drug-related harms (i.e., transmission of HIV, sexually transmitted and blood-borne infections; and overdose); reduce other injection-related harms (e.g., skin and soft tissue damage and infections); reduce public disorder; improve knowledge of drug consumption risks and behavioural risk reduction techniques; and improve access to and delivery of health, social, and crisis management services. (6) SIFs also offer respite from street-life. (7)

Canada's Constitution Act (8) assigns powers between the federal and provincial governments. The federal government has authority to enact criminal laws, including laws concerning the possession and trafficking of drugs. (9) The Constitution Act also grants the provinces exclusive authority over the "establishment, maintenance, and management" of health facilities. (10)

The Charter of Rights and Freedoms, (11) entrenched in Canada's Constitution Act, guarantees political and civil rights to persons physically present in Canada. The Charter may be used to challenge laws or part of laws, or an action by a government actor or entity. Section 7 enshrines the right to life, liberty, and security of the person." (12) Section I of the Charter permits a government actor to place "reasonable limits [on these rights and freedoms] prescribed by law as can be demonstrably justified in a free and democratic society." (13)

Judicial Treatment

Legal Action

The action was brought by four claimants, including two residents of Insite's neighborhood and clients of Insite. Also parties to the action were PHS Community Services (PHS), the non-profit organization that oversees Insite's operation, (14) and the Vancouver Area Network of Drug Users (VANDU), a non-profit society that advocates on behalf of drug users. The four claimants brought an action for a declaration that:

* The CDSA is inapplicable to Insite, since it is a health facility under provincial control, making an exemption unnecessary.

* The application of the CDSA prohibitions against possession and trafficking to Insite resulted in a violation of the claimants' rights to "life, liberty and security of the person" and is not in accordance with the principles of fundamental justice.

* The claimants' rights to "life, liberty and security of the person" have been infringed by the Minister's refusal to extend the exemption for Insite from the application of the federal drug laws.

VANDU also sought a declaration that the CDSA's prohibition on possession of drugs limits the s. 7 Charter rights of all addicted drug users everywhere, not just at Insite. That claim was not addressed in lower Courts or at the SCC and, as such, will not be addressed here.

Lower Court Rulings

At the British Columbia Supreme Court, (15) Justice Pitfield found that ss. 4(1) and 5(1) of the CDSA are inconsistent with s. 7 of the Charter, and of no force and effect. While Insite could apply for an exemption from the provisions of the CDSA, the scheme was arbitrary because the Minister of Health's discretion to grant exemptions was unfettered. While he declared the relevant provisions of the CDSA to be unconstitutional, he suspended the declaration of constitutional invalidity and granted Insite a constitutional exemption.

Justice Pitfield's decision was appealed to the British Columbia Court of Appeal where it was upheld. (16) Writing for the majority, Justice Rowles found that the application of the CDSA to Insite was overbroad and had a grossly disproportionate effect on the claimants. With respect to section 4(1) analysis, the concurring reasons of Justice Rowles and Justice Huddart found that Insite is shielded from the CDSA's reach by virtue of the doctrine of inter-jurisdictional immunity. Specifically, Insite operates under provincial health power (the Constitution assigns authority to provinces for the delivery of health care) and the Court found that the federal power over criminal law could not interfere with the regulation of provincial health facilities.

Supreme Court of Canada Decision

In a unanimous decision, the SCC ordered the federal Minister of Health to grant an exemption from federal laws prohibiting drug possession and trafficking. Before considering whether the CDSA provisions were constitutionally valid, the SCC considered whether the federal government had the constitutional authority to make decisions about the criminal prohibitions on possession and trafficking in the context of health care delivery. The Court found that the impugned provisions of the CDSA are, "in pith and substance ... valid exercises of the federal criminal law power." (17)

With respect to inter-jurisdictional immunity, the SCC parted with the Appeal Court's reasoning. As the delivery of health services does not constitute a "protected core" (18) of the provincial power over health care, is not immune from federal interference. Indeed, the Court held that the doctrine of inter-jurisdictional immunity is narrow, (l9) in keeping with an understanding of the principle of "cooperative federalism," (20) discussed in further detail below.

The SCC then considered two inter-related Charter

1. The CDSA provisions that prohibit possession and trafficking are invalid because they limit the claimants' s. 7 rights to life, liberty and security of the person and are not in accordance with the principles of fundamental justice.

2. The claimants' s. 7 rights have been infringed by the Minister's refusal to extend the exemption for Insite from the application of the federal drug laws.

With respect to the first claim, the Court found that the prohibition against possession, set out in s. 4(1) of the CDSA, interferes with the claimants'...