PHS Community Services Society et al. v. Canada (Attorney General), (2011) 310 B.C.A.C. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court of Canada
Case DateMay 12, 2011
JurisdictionCanada (Federal)
Citations(2011), 310 B.C.A.C. 1 (SCC);2011 SCC 44;244 CRR (2d) 209;310 BCAC 1;[2011] 12 WWR 43;421 NR 1;86 CR (6th) 223;JE 2011-1649;EYB 2011-196343;[2011] 3 SCR 134;96 WCB (2d) 322;22 BCLR (5th) 213;[2011] EXP 2938;205 ACWS (3d) 673;[2011] SCJ No 44 (QL);336 DLR (4th) 385;272 CCC (3d) 428

PHS Com. Services Soc. v. Can. (A.G.) (2011), 310 B.C.A.C. 1 (SCC);

    526 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2011] B.C.A.C. TBEd. SE.018

Attorney General of Canada and Minister of Health for Canada (appellants/respondents on cross-appeal) v. PHS Community Services Society, Dean Edward Wilson, Shelly Tomic and Attorney General of British Columbia (respondents) Vancouver Area Network of Drug Users (VANDU) (respondent/appellant on cross-appeal) and Attorney General of Quebec, Dr. Peter AIDS Foundation, Vancouver Coastal Health Authority, Canadian Civil Liberties Association, Canadian HIV/AIDS Legal Network, International Harm Reduction Association, CACTUS Montréal, Canadian Nurses Association, Registered Nurses' Association of Ontario, Association of Registered Nurses of British Columbia, Canadian Public Health Association, Canadian Medical Association, British Columbia Civil Liberties Association, British Columbia Nurses' Union and REAL Women of Canada (intervenors)

(33556; 2011 SCC 44; 2011 CSC 44)

Indexed As: PHS Community Services Society et al. v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

September 30, 2011.

Summary:

The Controlled Drugs and Substances Act (CDSA) prohibited possession and trafficking in ss. 4(1) and 5(1). Section 56 of the CDSA empowered the federal Minister of Health to issue exemptions from the application of the provisions of CDSA for medical or scientific reasons, or for any purpose the Minister deemed to be in the public interest. PHS Community Services Society (PHS) oversaw the operation of the Insite safe injection facility, which had provided medical services to intravenous drug users in the Downtown Eastside (DTES) of Vancouver since 2003. Insite had been granted exemptions under s. 56 of the CDSA, but in 2008 the federal government failed to extend Insite's exemption from the operation of the criminal laws in the CDSA. Two actions were commenced, one by PHS and two residents of the DTES who were or had been clients of Insite (Wilson and Tomic), and the other by the Vancouver Area Network of Drug Users (VANDU). In its action, PHS claimed that the federal constitutional power to legislate with respect to criminal law could not interfere with the provincial constitutional power with respect to health care because of the doctrine of interjurisdictional immunity. In the alternative, PHS claimed that ss. 4(1) and 5(1) of the CDSA were unconstitutional because they deprived persons addicted to one or more controlled substances of access to health care at Insite and therefore violated s. 7 of the Charter. In its action, VANDU sought various declarations, including that the conduct of the staff at Insite did not involve the commission of any offences at law.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 351, dismissed PHS's claim for a declaration that ss. 4(1) and 5(1) of the CDSA did not apply to Insite by reason of the application of the doctrine of interjurisdictional immunity. However, the court declared that ss. 4(1) and 5(1) of the CDSA were unconstitutional and of no force and effect on the basis that they violated s. 7 of the Charter. The court suspended the declaration of constitutional invalidity and granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. The court did not grant any of the declarations sought by VANDU. Canada appealed from the court's order allowing the claim based on s. 7 of the Charter. PHS, Wilson and Tomic cross-appealed from the order dismissing their application for a declaration that ss. 4(1) and 5(1) of the CDSA did not apply to Insite by reason of the application of the doctrine of interjurisdictional immunity.

The British Columbia Court of Appeal, in a decision reported at (2010), 281 B.C.A.C. 161; 475 W.A.C. 161, held that ss. 4(1) and 5(1) of the CDSA did not apply to Insite by reason of the application of the doctrine of interjurisdictional immunity. The court also upheld the trial judge's decision with respect to the Charter claim. D. Smith, J.A., dissented on both the Charter and the division of powers issues. Canada appealed from the holdings on the division of powers and the Charter. VANDU, cross-appealed, challenging the application of the prohibition on possession to all addicted persons, not only those who were seeking treatment at supervised injection sites.

The Supreme Court of Canada dismissed Canada's appeal. The CDSA was applicable to Insite, and the scheme of the CDSA conformed to the Charter and was constitutionally valid. However, the court held that the actions of the federal Minister of Health in refusing to extend Insite's exemption under s. 56 of the CDSA were in violation of the respondents' s. 7 Charter rights and could not be justified under s. 1 of the Charter. The Minister was ordered to grant an exemption for Insite under s. 56 of the CDSA. VANDU's cross-appeal lacked an adequate basis in the record and was dismissed.

Civil Rights - Topic 208

Life - Right to health care - Safe drug injection sites - [See both Civil Rights - Topic 1396.2 ].

Civil Rights - Topic 643

Liberty - Limitation on - Health care - Safe drug injection sites - [See both Civil Rights - Topic 1396.2 ].

Civil Rights - Topic 1396.2

Security of the person - Health care (incl. mental health) - Safe drug injection sites - PHS Community Services Society (PHS) oversaw the operation of the Insite safe injection facility, which had provided medical services to intravenous drug users in the Downtown Eastside (DTES) of Vancouver since 2003 - PHS, and two residents of the DTES who were or had been clients of Insite, argued that ss. 4(1) and 5(1) (the prohibitions on possession and trafficking) of the Controlled Drugs and Substances Act (CDSA) were invalid because they limited the claimants' s. 7 Charter rights - In the alternative, they asserted that their s. 7 Charter rights had been infringed by the federal Minister of Health's refusal to extend Insite's exemption under s. 56 of the CDSA from the application of the federal drug laws - The Supreme Court of Canada held that s. 4(1) of the CDSA limited the s. 7 rights of staff and clients of Insite - Section 5(1) of the CDSA did not constitute a limitation of their s. 7 rights, as the clients and staff of Insite were not involved in trafficking - The court concluded that while s. 4(1) of the CDSA engaged the s. 7 Charter rights of the individual claimants and others like them, it did not violate s. 7 - That was because s. 56 of the CDSA conferred on the Minister the power to grant exemptions from s. 4(1) on the basis of, inter alia, health - The availability of exemptions acted as a safety valve that prevented the CDSA from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects - The claimants' s. 7 challenge to the validity of the CDSA accordingly failed - See paragraphs 84 to 96 and 107 to 115.

Civil Rights - Topic 1396.2

Security of the person - Health care (incl. mental health) - Safe drug injection sites - Section 56 of the Controlled Drugs and Substances Act (CDSA) empowered the federal Minister of Health to issue exemptions from the application of the provisions of CDSA for medical or scientific reasons, or for any purpose the Minister deemed to be in the public interest - PHS Community Services Society (PHS) oversaw the operation of the Insite safe injection facility, which had provided medical services to intravenous drug users in the Downtown Eastside (DTES) of Vancouver since 2003 - PHS, and two residents of the DTES who were or had been clients of Insite, argued that their s. 7 rights had been infringed by the federal Minister of Health's refusal to extend Insite's exemption under s. 56 of the CDSA - The Supreme Court of Canada concluded that the Minister's rejection of the application for a s. 56 exemption engaged the s. 7 rights of the claimants and constituted a limit on their s. 7 rights - This limit was not in accordance with the principles of fundamental justice - It was arbitrary, undermining the very purposes of the CDSA, which included public health and safety - It was also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweighed any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite's premises - If a s. 1 analysis were required, no s. 1 justification could succeed - The goals of the CDSA were the maintenance and promotion of public health and safety - The Minister's decision to refuse the exemption bore no relation to those objectives - With respect to remedy, the court held that an order in the nature of mandamus was warranted - The Minister was ordered to grant an exemption for Insite under s. 56 of the CDSA - See paragraphs 116 to 153.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - The Insite safe injection facility provided medical services to intravenous drug users in the Downtown Eastside of Vancouver - At issue was whether Insite was exempt from the prohibitions on the possession and trafficking of controlled substances in ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA), either because Insite was a health facility within the exclusive jurisdiction of the Province, or because the application of the criminal law would violate s. 7 of the Charter - Canada submitted that if the court concluded (which the court did) that the CDSA was valid and applied to Insite under the division of powers, then the Charter arguments had to also fail - Canada supported its preliminary objection as "a novel variation on the rule that 'one part of the Constitution cannot be abrogated or diminished by another part of the Constitution'" - The idea seemed to be that if the CDSA was valid and applicable, upholding Charter claims would amount to an internal contradiction within the Constitution - The Supreme Court of Canada stated that "the principle that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution is of no assistance in dealing with division of powers issues on the one hand, and Charter issues on the other. There is no conflict between saying a federal law is validly adopted under s. 91 of the Constitution Act, 1867, and asserting that the same law, in purpose or effect, deprives individuals of rights guaranteed by the Charter. The Charter applies to all valid federal and provincial laws" - See paragraphs 80 and 82.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - [See second Civil Rights - Topic 1396.2 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 1396.2 ].

Civil Rights - Topic 8361

Canadian Charter of Rights and Freedoms - Denial of rights - General - The Supreme Court of Canada stated that "whether a law limits a Charter right is simply a matter of the purpose and effect of the law that is challenged, not whether the law is right or wrong. The morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right" - See paragraph 102.

Civil Rights - Topic 8361

Canadian Charter of Rights and Freedoms - Denial of rights - General - PHS Community Services Society (PHS) oversaw the operation of the Insite safe injection facility, which had provided medical services to intravenous drug users in the Downtown Eastside (DTES) of Vancouver since 2003 - PHS and two residents of the DTES who were or had been clients of Insite argued that ss. 4(1) and 5(1) (the prohibitions on possession and trafficking) of the Controlled Drugs and Substances Act (CDSA) were invalid because they limited the claimants' s. 7 rights to life, liberty and security of the person and were not in accordance with the principles of fundamental justice - In the alternative, they asserted that their s. 7 rights had been infringed by the federal Minister of Health's refusal to extend Insite's exemption under s. 56 of the CDSA from the application of the federal drug laws - Canada argued that the decision to allow supervised injection was a policy question, and thus immune from Charter review - The Supreme Court of Canada stated that "policy is not relevant at the stage of determining whether a law or state action limits a Charter right. The place for such arguments is when considering the principles of fundamental justice or at the s. 1 stage of justification if a Charter breach has been established" - See paragraph 104.

Civil Rights - Topic 8377

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Prerogative writs - [See second Civil Rights - Topic 1396.2 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - The Supreme Court of Canada discussed the doctrine of interjurisdictional immunity - The court stated, inter alia, "While the doctrine of interjurisdictional immunity has been narrowed, it has not been abolished. Predictability, important to the proper functioning of the division of powers, requires recognition of previously established exclusive cores of power: Canadian Western Bank, at paras. 23-24. Nor, in principle, is the doctrine confined to federal powers: Canadian Western Bank. However, in areas of overlapping jurisdiction, the modern trend is to strike a balance between the federal and provincial governments, through the application of pith and substance analysis and a restrained application of federal paramountcy. Therefore, before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis" - See paragraphs 58 to 65.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - The Insite safe injection facility provided medical services to intravenous drug users in the Downtown Eastside of Vancouver - The Controlled Drugs and Substances Act (CDSA) prohibited possession and trafficking in ss. 4(1) and 5(1) - The Supreme Court of Canada rejected an argument that Insite was shielded from the operation of the CDSA by virtue of the doctrine of interjurisdictional immunity - The delivery of health care services did not constitute a protected core of the provincial power over health care in ss. 92(7), (13) and (16) of the Constitution Act, 1867, which was therefore immune from federal interference - First, the proposed core of the provincial power over health had never been recognized in the jurisprudence and courts were reluctant to identify new areas where interjurisdictional immunity applied - Second, the claimants had failed to identify a delineated "core" of an exclusively provincial power - The court stated that "Overlapping federal jurisdiction and the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread" - Third, application of interjurisdictional immunity to a protected core of the provincial health power had the potential to create legal vacuums - "In summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government" - See paragraphs 57 to 70.

Constitutional Law - Topic 6505

Federal jurisdiction - Criminal law - Respecting particular matters - Health - [See second Constitutional Law - Topic 2511 and both Constitutional Law - Topic 6509 ].

Constitutional Law - Topic 6509

Federal jurisdiction - Criminal law - Respecting particular matters - Drug legislation - The Insite safe injection facility provided medical services to intravenous drug users in the Downtown Eastside of Vancouver - The Controlled Drugs and Substances Act (CDSA) prohibited possession and trafficking in ss. 4(1) and 5(1) - The Attorney General of British Columbia argued that ss. 4(1) and 5(1) of the CDSA should be read as not applying to Insite - Relying on Jabour v. Law Society of British Columbia (S.C.C.), British Columbia argued that federal criminal laws were "implicitly constrained to operate consistently with the public interest" - It argued that once a province established that a particular activity (the provision of health services through Insite) served the public interest, that activity was exempt from the operation of federal criminal laws - The Supreme Court of Canada rejected the argument - Jabour did not establish a general rule that provincial programmes designed to advance the public interest were always exempt from the operation of the criminal law - In Garland v. Consumers' Gas Co. (S.C.C.) Iacobucci, J., wrote that the principle of interpretation adopted in Jabour would only apply where Parliament has "expressly or by necessary implication ... granted leeway to those acting pursuant to a valid provincial regulatory scheme" - Pursuant to s. 56 of the CDSA, the federal Minister of Health alone had the power to determine if an activity should be exempt from the prohibitions in the CDSA - The CDSA granted no leeway to the provinces, and could not be interpreted as exempting the provinces from its provisions - See paragraphs 53 to 56.

Constitutional Law - Topic 6509

Federal jurisdiction - Criminal law - Respecting particular matters - Drug legislation - The Insite safe injection facility provided medical services to intravenous drug users in the Downtown Eastside of Vancouver - The Controlled Drugs and Substances Act (CDSA) prohibited possession and trafficking in ss. 4(1) and 5(1) - The intervenor, Attorney General of Quebec, argued that these provisions of the CDSA were ultra vires insofar as Insite was concerned because the federal criminal law power could not interfere with the regulation of provincial health facilities - Quebec submitted that ss. 4(1) and 5(1) of the CDSA were partially invalid because they exceeded Parliament's jurisdiction to enact criminal laws under s. 91(27) of the Constitution Act, 1867 - The Supreme Court of Canada stated that "This argument appears to confuse the constitutional validity of a law with the applicability of a valid law. When determining whether a law is valid under the division of powers, the Court looks to the dominant purpose of the law. The fact that the law at issue in this case has the incidental effect of regulating provincial health institutions does not mean that it is constitutionally invalid. A valid federal law may have incidental impacts on provincial matters: ... It is therefore untenable to argue, as I understand Quebec to do, that a valid federal law becomes invalid if it affects a provincial subject, in this case health. In pith and substance, the impugned provisions of the CDSA are valid exercises of the federal criminal law power" - See paragraphs 50 to 52.

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - [See second Constitutional Law - Topic 2511 and both Constitutional Law - Topic 6509 ].

Constitutional Law - Topic 7506

Provincial jurisdiction (s. 92) - Matters of local or private nature - Health - The Insite safe injection facility provided medical services to intravenous drug users in the Downtown Eastside of Vancouver - At issue was whether Insite was exempt from the prohibitions on the possession and trafficking of controlled substances in ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA), either because Insite was a health facility within the exclusive jurisdiction of the Province, or because the application of the criminal law would violate s. 7 of the Charter - Canada submitted that if the court concluded (which the court did) that the CDSA was valid and applied to Insite under the division of powers, the Charter arguments had to also fail - Canada asserted that if the CDSA was valid federal legislation, then the Province had no legal jurisdiction to operate Insite without federal approval - The idea appeared to be that absent a federal exemption, the provincial government did not have the legal authority to provide the safe injection service - It was that constitutional inability, not the CDSA, that threatened Insite's delivery of health services - Therefore, the CDSA could not be said to deprive the claimants of any right - The Supreme Court of Canada rejected Canada's argument - The Province had the constitutional power to establish Insite without federal approval - The provision of the health services offered by Insite was within the provincial health power - The claimants sought a federal exemption from operation of the CDSA, not because this was necessary to validate the Province's decision to operate Insite as a health service, but because it was necessary as a practical matter to implement the decision - Thus the premise of Canada's argument, that the Province had no legal jurisdiction to operate Insite without federal approval, failed - See paragraphs 80 to 81.

Crown - Topic 671

Authority of Ministers - Exercise of - General - PHS Community Services Society (PHS) oversaw the operation of the Insite safe injection facility, which had provided medical services to intravenous drug users in the Downtown Eastside (DTES) of Vancouver since 2003 - PHS, and two residents of the DTES who were or had been clients of Insite, argued that their s. 7 rights had been infringed by the federal Minister of Health's refusal to extend Insite's exemption under s. 56 of the Controlled Drugs and Substances Act (CDSA) from the application of the federal drug laws - The Attorney General of Canada argued that the Minister had not violated s. 7 because the Minister had not yet made a decision whether to grant a s. 56 exemption to Insite - The Supreme Court of Canada rejected the argument - The record established that the Minister had made a decision on the request for an exemption for Insite, and that decision was to refuse the exemption - Comments made by the Minister, coupled with the failure to accord an exemption, amounted to an effective refusal of the application - The court stated "To recap, the Minister had before him a formal application dated May 2, 2008. He was obliged, as he conceded, to consider all applications. The Minister treated the application before him as denied; it was spent, and a duty to reconsider could only be triggered by a new application. The only rational conclusion is that the Minister had considered the application for an exemption that was then before him, and had decided not to grant it" - See paragraphs 119 to 125.

Narcotic Control - Topic 6

General - Legislation - Exemptions - [See second Civil Rights - Topic 1396.2 ].

Cases Noticed:

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 51].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207; 2000 SCC 21, refd to. [para. 51].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 52].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 53].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 55].

Bell Canada v. Commission de la santé et de la sécurité du travail (Qué.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [para. 58].

Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536; 407 N.R. 101; 2010 SCC 39, refd to. [para. 59].

Derrickson v. Derrickson et al., [1986] 1 S.C.R. 285; 65 N.R. 278, refd to. [para. 60].

Natural Parents v. Superintendent of Child Welfare (B.C.) et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 60].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 68].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 68].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 68].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 80].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 84].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 93].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481; 188 D.L.R.(4th) 385 (C.A.), dist. [para. 93].

R. v. York (J.A.) (2005), 208 B.C.A.C. 184; 344 W.A.C. 184; 193 C.C.C.(3d) 331; 2005 BCCA 74, refd to. [para. 96].

R. v. Spooner (1954), 109 C.C.C. 57 (B.C.C.A.), refd to. [para. 96].

R. v. Hess (No. 1) (1948), 94 C.C.C. 48 (B.C.C.A.), refd to. [para. 96].

R. v. Ormerod, [1969] 4 C.C.C. 3 (Ont. C.A.), refd to. [para. 96].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 117].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 142].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 144].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 149].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7 [para. 44].

Constitution Act, 1867, sect. 91(27) [para. 42]; sect. 92(7), sect. 92(13), sect. 92(16) [para. 43].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 4(1), sect. 5(1) [para. 38]; sect. 56 [para. 39].

Authors and Works Noticed:

Canada, Health Canada, Final Report of the Expert Advisory Committee on Vancouver's INSITE service and other Supervised injection sites: What has been learned from Research? (March 31, 2008) (online: http://www.hc-sc.gc.ca/ahc-asc/pubs/_sites-lieux/insite/index-eng.php), generally [para. 28].

Canada, House of Commons, Evidence of the Standing Committee on Health, No. 032, 2nd Sess., 39th Parliament (May 29, 2008) (online: http://www.parl.gc.ca/ HousePublications/Publication.aspx?DocId=3529880&Language=E&Mode=1&Parl=39&Ses=2), generally [paras. 122, 123].

Counsel:

Robert J. Frater and W. Paul Riley, for the appellants/respondents on cross-appeal;

Joseph J. Arvay, Q.C., Monique Pongracic-Speier, Scott E. Bernstein and Jeffrey W. Beedell, for the respondents, PHS Community Services Society, Dean Edward Wilson and Shelly Tomic;

Craig E. Jones and Karrie Wolfe, for the respondent, the Attorney General of British Columbia;

John W. Conroy, Q.C., and Stephen J. Mulhall, Q.C., for the respondent/appellant on cross-appeal;

Hugo Jean, for the intervenor, the Attorney General of Quebec;

Andrew I. Nathanson and Brook Greenberg, for the intervenor, the Dr. Peter AIDS Foundation;

Sheila M. Tucker, for the intervenor, the Vancouver Coastal Health Authority;

Paul F. Monahan and Antonio Di Domenico, for the intervenor, the Canadian Civil Liberties Association;

Michael A. Feder, Angela M. Juba and Louis Letellier de St-Just, for the intervenors, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal;

Rahool P. Agarwal, John M. Picone and Michael Kotrly, for the intervenors, the Canadian Nurses Association, the Registered Nurses' Association of Ontario and the Association of Registered Nurses of British Columbia;

Owen M. Rees and Fredrick Schumann, for the intervenor, the Canadian Public Health Association;

Guy J. Pratte, Nadia Effendi and Jean Nelson, for the intervenor, the Canadian Medical Association;

Ryan D.W. Dalziel and Thomas J. Moran, for the intervenor, the British Columbia Civil Liberties Association;

Marjorie Brown, for the intervenor, the British Columbia Nurses' Union;

Michael A. Chambers, for the intervenor, REAL Women of Canada.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario; Public Prosecution Service of Canada, Vancouver, B.C., for the appellants/respondents on cross-appeal;

Arvay Finlay, Vancouver, B.C.; Ethos Law Group, Vancouver, B.C., for the respondents, PHS Community Services Society, Dean Edward Wilson and Shelly Tomic;

Attorney General of British Columbia, Victoria, B.C., for the respondent, the Attorney General of British Columbia;

Conroy & Company, Abbotsford, B.C., for the respondent/appellant on cross-appeal;

Attorney General of Quebec, Ste-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Fasken Martineau DuMoulin, Vancouver, B.C., for the intervenor, the Dr. Peter AIDS Foundation;

Davis, Vancouver, B.C., for the intervenor, the Vancouver Coastal Health Authority;

Fasken Martineau DuMoulin, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

McCarthy Tétrault, Vancouver, B.C., for the intervenors, the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal;

Norton Rose OR, Toronto, Ontario, for the intervenors, the Canadian Nurses Association, Registered Nurses' Association of Ontario and Association of Registered Nurses of British Columbia;

Stockwoods, Toronto, Ontario, for the intervenor, the Canadian Public Health Association;

Borden Ladner Gervais, Ottawa, Ontario, for the intervenor, the Canadian Medical Association;

Bull, Housser & Tupper, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;

Victory Square Law Office, Vancouver, B.C., for the intervenor, the British Columbia Nurses' Union;

Maclaren Corlett, Ottawa, Ontario, for the intervenor, REAL Women of Canada.

This appeal and cross-appeal were heard on May 12, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by McLachlin, C.J.C., on September 30, 2011.

To continue reading

Request your trial
348 practice notes
  • Quebec (Attorney General) v. Canada (Attorney General) et al., (2015) 469 N.R. 97 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • March 27, 2015
    ...2 S.C.R. 536 ; 407 N.R. 102 ; 2010 SCC 39 , refd to. [para. 17]. PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1 ; 310 B.C.A.C. 1 ; 526 W.A.C. 1 ; 2011 SCC 44 , refd to. [paras. 17, Reference Re Secession of Quebec, [1998] 2 S.C.R. ......
  • Deegan c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • July 22, 2019
    ...General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 ; Chaoulli v. Quebec (Attorney General), 2005 SCC 35 , [2005] 1 S.C.R. 791; RJR-MacDonald Inc. v. Canada (Attorney General), ......
  • Revell c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • October 18, 2019
    ...40 D.L.R. (4th) 435; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 ; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, 429 D.L.R. (4th) 583; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90......
  • R. v. Nur (H.), (2015) 469 N.R. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • November 7, 2014
    ...289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [paras. 89, 161]. PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [paras. 92, Lavallee, Rackel & Heintz et al. v. Canada (Attorney General......
  • Request a trial to view additional results
215 cases
  • Quebec (Attorney General) v. Canada (Attorney General) et al., (2015) 469 N.R. 97 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • March 27, 2015
    ...2 S.C.R. 536 ; 407 N.R. 102 ; 2010 SCC 39 , refd to. [para. 17]. PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1 ; 310 B.C.A.C. 1 ; 526 W.A.C. 1 ; 2011 SCC 44 , refd to. [paras. 17, Reference Re Secession of Quebec, [1998] 2 S.C.R. ......
  • Deegan c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • July 22, 2019
    ...General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 ; Chaoulli v. Quebec (Attorney General), 2005 SCC 35 , [2005] 1 S.C.R. 791; RJR-MacDonald Inc. v. Canada (Attorney General), ......
  • Revell c. Canada (Citoyenneté et Immigration),
    • Canada
    • Court of Appeal (Canada)
    • October 18, 2019
    ...40 D.L.R. (4th) 435; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 ; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, 429 D.L.R. (4th) 583; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90......
  • R. v. Nur (H.), (2015) 469 N.R. 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • November 7, 2014
    ...289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [paras. 89, 161]. PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [paras. 92, Lavallee, Rackel & Heintz et al. v. Canada (Attorney General......
  • Request a trial to view additional results
10 firm's commentaries
  • Federal Jurisdiction In Municipal Matters: What Happens When The Provinces Or Municipalities Step On Federal Toes?
    • Canada
    • Mondaq Canada
    • March 15, 2017
    ...Bank v Alberta, 2007 SCC 22 at para 37, [2007] 2 SCR 3 [Canadian Western Bank]; PHS Community Services Society v Canada (Attorney General) 2011 SCC 44 at para 63, [2011] 3 SCR 134 [PHS Community [10] Rogers Communications Inc v Chateauguay (Ville), 2016 SCC 23 at para 85, [2016] 1 SCR 467 [......
  • Top 5 Civil Appeals From The Court Of Appeal (January 2015)
    • Canada
    • Mondaq Canada
    • January 26, 2015
    ...to warrant the intervention of the judicial branch." In this case, unlike in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, where a specific state action was challenged, and in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, where a specific law was challenged......
  • Court Of Appeal Summaries (December 1 – 5, 2014)
    • Canada
    • Mondaq Canada
    • December 15, 2014
    ...a political issue or a legal issue. This case was distinguishable from both Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 and Chaoulli v Quebec (Attorney General), 2005 SCC 35. Those cases involved Charter challenges to a specific state action and a specific law, r......
  • COURT OF APPEAL SUMMARIES (DECEMBER 1 – 5, 2014)
    • Canada
    • LexBlog Canada
    • December 5, 2014
    ...a political issue or a legal issue. This case was distinguishable from both Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 and Chaoulli v Quebec (Attorney General), 2005 SCC 35. Those cases involved Charter challenges to a specific state action and a specific law, r......
  • Request a trial to view additional results
136 books & journal articles
  • The Criminal Law and the Constitution
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...Bedford , above note 256 at paras 111 and 113. 279 Morgentaler (No 2) , above note 255. 280 Canada (AG) v PHS Community Services Society , 2011 SCC 44. 281 2015 SCC 34 at paras 25–26. The same lack of connection between the prohibition and its objection meant that the law could not be justi......
  • Table of Cases
    • Canada
    • Irwin Books Archive The Charter of Rights and Freedoms. Fifth Edition
    • August 29, 2013
    ...17–18, 333 Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134, 2011 SCC 44 ............. 70, 85, 247, 248, 252, 280, 281, 410, 414, 441 Canada (Employment and Immigration Commission) v Tétreault-Gadoury, [1991] 2 SCR 22 , (sub nom Tétreault-Gadoury v Canada (Emp......
  • Litigating Cross-Border Aboriginal Title Claims in Canada: The Possibility (and Necessity) of a Federal Legislative Response to Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam).
    • Canada
    • McGill Law Journal Vol. 67 No. 2, December 2021
    • December 1, 2021
    ...Bank v Alberta, 2007 SCC 22 at paras 34, 35, 67 [Canadian Western Bank]; Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 65 [PHS]; Tsilhqot'in Nation, supra note 27 at paras 131, 148; Carter v Canada (Attorney General), 2015 SCC 5 at paras (303) References re......
  • Limitation of Charter Rights
    • Canada
    • Irwin Books Archive The Charter of Rights and Freedoms. Sixth Edition
    • June 22, 2021
    ...substantial objective to justify denial of spousal benefits to gay couple); Canada (Attorney General) v PHS Community Services Society , [2011] 3 SCR 134 at para 137 [ PHS Community Services ] (minister’s refusal of exemption from drug laws for safe injection site bearing no relation to law......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT