PHS Community Services Society et al. v. Canada (Attorney General), (2010) 281 B.C.A.C. 161 (CA)

• Judge: Rowles, Huddart and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 15, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 281 B.C.A.C. 161 (CA);2010 BCCA 15

PHS Com. Services Soc. v. Can. (A.G.) (2010), 281 B.C.A.C. 161 (CA);

    475 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.053

PHS Community Services Society, Dean Edward Wilson and Shelly Tomic (respondents/cross-appellants/plaintiffs) v. Attorney General of Canada (appellant/cross-respondent/defendant) and Attorney General of British Columbia (respondent) and British Columbia Civil Liberties Association, Vancouver Coastal Health Authority and Dr. Peter AIDS Foundation (intervenors)

(CA036159)

Vancouver Area Network of Drug Users (VANDU) (respondent/cross-appellant/plaintiff) v. Attorney General of Canada and Minister of Health for Canada (appellants/cross-respondents/defendants), Attorney General of British Columbia (respondent) and British Columbia Civil Liberties Association, Vancouver Coastal Health Authority and Dr. Peter AIDS Foundation (intervenors)

(CA036158; 2010 BCCA 15)

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

British Columbia Court of Appeal

Rowles, Huddart and D. Smith, JJ.A.

January 15, 2010.

Summary:

PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority. The federal Minister of Health had granted exemptions under s. 56 of the Controlled Drugs and Substances Act (CDSA) so that, while within Insite's premises, drug users were not liable to prosecution for possessing a controlled substance contrary to s. 4(1) of the CDSA, and nor were the staff, for trafficking, contrary to s. 5(1). When no further extensions appeared to be forthcoming, two separate actions were commenced, one by PHS and two users of Insite (Wilson and Tomic), and the other by the Vancouver Area Network of Drug Users (VANDU). In its action, PHS claimed that Insite was a health care undertaking, authority for the operation of which lay with the Province, and 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 and should be struck down because they deprived persons addicted to one or more controlled substances of access to health care at Insite and therefore violated the right conferred by s. 7 of the Charter to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In its action VANDU sought the following declarations: "1. The conduct of the staff in the ordinary course of business at Insite does not involve the commission of any offences at law; 2. The CDSA and the regulations do not apply to the medical treatment at Insite of persons addicted to a controlled substance; 3. The offence of the possession of all addictive drugs as set out in Schedules I, II and III of the CDSA violates s. 7 of the Charter; and 4. Section 56 of the CDSA, which vests an unfettered discretion in the Minister to grant an exemption from the provisions of the CDSA, is unconstitutional".

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 351; 2008 BCSC 661, 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 accepted PHS's alternative claim that ss. 4(1) and 5(1) of the CDSA were unconstitutional because they deprived persons addicted to controlled substances of access to health care at Insite and therefore violated the right conferred by s. 7 of the Charter to life, liberty, and security of the person in a manner not in accordance with the principles of fundamental justice. The court declared ss. 4(1) and 5(1) of the CDSA invalid as inconsistent with s. 7 of the Charter, suspended operation of the order for 12 months and granted a constitutional exemption to accord with the s. 56 ministerial exemption for that time period. The court did not grant any of the declarations sought by VANDU in its action. The Attorney General of Canada appealed from the court's order allowing the alternative claim advanced by PHS 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, D. Smith, J.A., dissenting, allowed PHS's cross-appeal, holding 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. While that decision made consideration of PHS's alternative claim under s. 7 of the Charter unnecessary, Rowles, J.A., and D. Smith, J.A., addressed the issue. Rowles, J.A., would have dismissed Canada's appeal with respect to the s. 7 Charter issue. D. Smith, J.A., would have allowed Canada's appeal on that issue. Huddart, J.A., did not address the s. 7 issue, but stated that she was in general agreement with the reasons of Rowles, J.A.

Civil Rights - Topic 208

Life - Right to health care - Safe drug injection sites - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - PHS and two users of Insite brought an action claiming that ss. 4(1) (possessing a controlled substance) and 5(1) (trafficking) of the Controlled Drugs and Substances Act (CDSA) were inapplicable to Insite by reason of the doctrine of interjurisdictional immunity - The trial judge rejected that claim, but accepted PHS's alternative claim that ss. 4(1) and 5(1) of the CDSA deprived persons addicted to controlled substances of access to health care at Insite and therefore violated the rights to life, liberty, and security of the person under s. 7 of the Charter in a manner not in accordance with the principles of fundamental justice - The trial judge held that, applied in the context in which Insite operated, ss. 4(1) and 5(1) of the CDSA would be arbitrary, overbroad and grossly disproportionate in their effects - The Attorney General of Canada appealed from the order allowing PHS's alternative claim based on s. 7 of the Charter - PHS cross-appealed from the order dismissing its claim based on interjurisdictional immunity - The British Columbia Court of Appeal allowed PHS's cross-appeal, holding 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 - While that decision made consideration of PHS's alternative claim under s. 7 of the Charter unnecessary, Rowles and D. Smith, JJ.A., addressed that issue - Rowles, J.A., would have dismissed Canada's appeal on the s. 7 issue - D. Smith, J.A., would have allowed Canada's appeal - Huddart, J.A., did not address the s. 7 issue, but stated that she was in general agreement with the reasons of Rowles, J.A. - See paragraphs 9 to 79, 199, and 246 to 309.

Civil Rights - Topic 643

Liberty - Limitation on - Health care - Safe drug injection sites - [See Civil Rights - Topic 208 ].

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic or a controlled drug or substance (incl. for purposes of trafficking, medicinal use, etc.) - [See Civil Rights - Topic 208 ].

Civil Rights - Topic 1396.2

Security of the person - Health care (incl. mental health) - Safe drug injection sites - [See Civil Rights - Topic 208 ].

Civil Rights - Topic 1400

Security of the person - Health care (incl. mental health) - Denial of (incl. funding for) - [See Civil Rights - Topic 208 ].

Constitutional Law - Topic 2507

Determination of validity of statutes or Acts - General principles - Reading down - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - At issue before the court was whether ss. 4(1) and 5(1) of the Controlled Drugs and Substances were inapplicable to Insite by reason of the application of the doctrine of interjurisdictional immunity - The British Columbia Court of Appeal rejected a submission by the provincial Attorney General that the court should leave the constitutional questions for another day by "reading down" the application of the impugned legislation "to exclude its application to the activities of bodies exercising their provincially-authorized or regulated functions in the public interest within the core of the Province's constitutional jurisdiction" - The court stated that "the disagreement must be resolved on the division of powers analysis most recently applied in Chatterjee v. Ontario (Attorney General), 2009 SCC 19 (Chatterjee), and not by an interpretation that 'reads down' the impugned provisions to protect areas of exclusive provincial legislative competence. As I understand the jurisprudence, protection for the exclusivity of provincial domains is available, if at all, only under the doctrine of interjurisdictional immunity, by way of a declaration of inapplicability" - See paragraphs 122 to 124.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - The federal Minister of Health had granted exemptions under s. 56 of the Controlled Drugs and Substances Act (CDSA) so that, while within Insite's premises, drug users were not liable to prosecution for possessing a controlled substance contrary to s. 4(1) of the CDSA, and nor were the staff, for trafficking, contrary to s. 5(1) - When no further extensions appeared to be forthcoming, PHS and two users of Insite brought an action, claiming that Insite was a health care undertaking, authority for the operation of which lay with the Province, and 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 - The trial judge rejected the claim - The British Columbia Court of Appeal allowed PHS's appeal on this issue and declared 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 stated, inter alia, "This is precisely the restrained use of the interjurisdictional immunity doctrine the jurisprudence supports: to prevent intrusive incidental effects by one legislature on the domain of the other. In this case, its application would prevent two provisions of the CDSA from sterilizing essential elements of a provincial undertaking, and would do so without undermining the federal criminal law power to any significant degree" - See paragraphs 125 to 176.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - The plaintiffs/cross-appellants (PHS and two users of Insite) claimed that Insite was a health care undertaking, authority for the operation of which lay with the Province, and 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 - The British Columbia Court of Appeal declared that ss. 4(1) (possession of a controlled substance) and 5(1) (trafficking) of the Controlled Drugs and Substances Act did not apply to Insite by reason of the application of the doctrine of interjurisdictional immunity - The court stated, inter alia, that "the application of the doctrine in this case does not amount to a form of provincial paramountcy. A firm application of the pith and substance analysis remains the starting-point of a division of powers analysis. The doctrine's application, as I understand it, is available only to enable the operation of an essential part of a provincial undertaking that would not negate the federal law or undermine its goals. It is most likely to be available where the federal and provincial legislative goals are the same, and particularly where the conflict is the result of executive decisions made under authorizing legislation. It is a surgical immunity - it attaches only to a small part of the power, precisely defined and narrowly circumscribed" - See paragraph 175.

Constitutional Law - Topic 6505

Federal jurisdiction - Criminal law - Respecting particular matters - Health - [See first Constitutional Law - Topic 2511 ].

Constitutional Law - Topic 6509

Federal jurisdiction - Criminal law - Respecting particular matters - Drug legislation - [See first Constitutional Law - Topic 2511 ].

Constitutional Law - Topic 7506

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

Government Programs - Topic 5221

Health and social services - Entitlement - General - [See Civil Rights - Topic 208 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - The Federal Minister of Health had granted exemptions under s. 56 of the Controlled Drugs and Substances Act (CDSA) so that, while within Insite's premises, drug users were not liable to prosecution for possessing a controlled substance contrary to s. 4(1) of the CDSA, and nor were the staff, for trafficking, contrary to s. 5(1) - When no further extensions appeared to be forthcoming, PHS and two users of Insite brought an action, claiming that ss. 4(1) and 5(1) of the CDSA were inapplicable to Insite because of the doctrine of interjurisdictional immunity - Alternatively, they claimed that ss. 4(1) and 5(1) of the CDSA violated s. 7 of the Charter - The Vancouver Area Network of Drug Users (VANDU) also brought a separate action seeking certain declaratory relief - The British Columbia Court of Appeal held that the test for public interest standing was met - The plaintiffs had established a serious issue as to the validity of the impugned legislation; as operators and users of Insite, they had a genuine interest in its validity; and, given the s. 56 exemption and the Vancouver Police Department's stated support of Insite, waiting for a criminal prosecution was not a feasible alternative - Waiting for a ministerial decision under s. 56 that did not appear to be forthcoming, was equally impractical - There was no other reasonable and effective manner in which to bring the matter before the courts - See paragraphs 178 to 179.

Practice - Topic 688.1

Parties - Adding or substituting parties - Intervenors - Evidence by intervenors - [See first Practice - Topic 9031 ].

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - [See Practice - Topic 5255.6 ].

Practice - Topic 5255.6

Trial - General - Summary trials - Evidence and proof - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - PHS and two users of Insite brought an action, claiming that ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA) were inapplicable to Insite because of the doctrine of interjurisdictional immunity - Alternatively, they claimed that ss. 4(1) and 5(1) of the CDSA violated s. 7 of the Charter - The Vancouver Area Network of Drug Users (VANDU) also brought a separate action seeking certain declaratory relief - The British Columbia Court of Appeal held that the trial judge did not err in determining that a summary trial was appropriate for deciding the issues - This was not a case of a "head-on" conflict in the evidence that went directly to the foundation of the action - Although there was some conflict in the experts' opinions, much of their evidence coincided, and the trial judge found it unnecessary to resolve the conflict where it existed - Relying on the whole of the evidence, the trial judge found he was able to decide the relevant issues of fact and law that were essential to the disposition of the actions - It was not unjust for him to do so, particularly considering the time and cost that had already been incurred - See paragraphs 180 to 183.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - PHS and two users of Insite brought an action claiming that ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA) were inapplicable to Insite based on the doctrine of interjurisdictional immunity - The trial judge rejected that claim, but accepted the plaintiffs' alternative claim that ss. 4(1) and 5(1) of the CDSA violated s. 7 of the Charter and were unconstitutional - The trial judge awarded special costs to the plaintiffs, explaining that the action fit within the scope of public interest litigation - The trial judge ruled that the plaintiffs' personal interests in the outcome of the litigation did not remove them from the ambit of public interest litigants - The trial judge also rejected a submission that PHS was not impecunious and could afford the conduct of the litigation, explaining that, financial worth or ability to pay was not a factor that should predominate the consideration of an award of special costs - Finally, the trial judge rejected a submission that no award of special costs should be made because the plaintiffs had been represented on a pro bono basis - The British Columbia Court of Appeal held that the trial judge considered all of the appropriate factors in deciding to award special costs to a successful public interest litigant and there was no basis to interfere with the exercise of his discretion - See paragraphs 194 to 198.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - An intervenor (Dr. Peter AIDS Foundation) applied to adduce fresh evidence on the appeal - The British Columbia Court of Appeal stated that "The Foundation brings its motion under Rule 31. That rule applies only to parties ... the Foundation, like other intervenors, is governed by Rule 36. Under that Rule, intervenors are always entitled to adduce evidence on their leave application, but they require the court's permission to adduce evidence on the appeal itself" - See paragraph 186.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The issues on appeal concerned the application of sections of the Controlled Drugs and Substances Act to the Vancouver Safe Injection Site - An intervenor (Dr. Peter AIDS Foundation) applied to adduce fresh evidence (an affidavit by Davis containing information about the Foundation's purpose and practices) - The British Columbia Court of Appeal held that "I would admit paragraphs 1-29 and 35-44 of the Davis Affidavit as helpful context for considering the division of powers and Charter issues in this appeal. They supply necessary context to explain the Foundation's different perspective and its submissions on the nature of and rationale for supervised injection services. I would not, however, admit paragraphs 30-34 or 45-46 nor the exhibits to which those paragraphs refer ... This evidence unnecessarily widens the scope of the lis, and takes the case away from the parties by focussing on the Foundation's unique situation. The usefulness of the Foundation's submissions is restricted to contextual evidence of general application. The parties should not be required to deal with the Foundation's own legal difficulties with supervised injection services. The background materials on its constitution and operations are superfluous" - See paragraphs 184 to 190.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - PHS Community Services Society operated the Vancouver Safe Injection Site ("Insite") under a contract with the Vancouver Coastal Health Authority - The federal Minister of Health had granted exemptions under s. 56 of the Controlled Drugs and Substances Act (CDSA) so that, while within Insite's premises, drug users were not liable to prosecution for possessing a controlled substance contrary to s. 4(1) of the CDSA, and nor were the staff, for trafficking, contrary to s. 5(1) - The issues on appeal, which concerned the application of ss. 4(1) and 5(1) of the CDSA to Insite, arose from two actions which were commenced when no further extensions under s. 56 appeared to be forthcoming - The intervenor, the Attorney General of British Columbia, applied to admit an affidavit that contained correspondence between the Vancouver Coastal Health Authority, the provincial Ministry of Health and Health Canada concerning the Health Authority's request for an extension of Insite's s. 56 exemption, and various media reports and articles during and following the trial that purported to demonstrate the federal government's opposition to Insite - The British Columbia Court of Appeal held that "the correspondence should be admitted. It provides an important continuation to the trial judge's narrative regarding the ongoing attempts by the provincial government to keep Insite operative and the federal response to those efforts. The evidence does not in itself go to the adjudicative facts and its admittance does not prejudice Canada in the cross-appeal. I would, however, decline to admit the media reports: they do not provide information relevant to the legal issues on appeal and are otherwise, at best, second-hand accounts of or editorial comments about the federal government's actions" - See paragraphs 191 to 192.

Cases Noticed:

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. 18].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 146 C.C.C.(3d) 193; 49 O.R.(3d) 481 (C.A.), consd. [paras. 20, 261].

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, consd. [paras. 27, 93, 232].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 48].

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; 107 D.L.R.(4th) 342, refd to. [paras. 48, 257].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, consd. [paras. 51, 298].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [paras. 51, 300].

R. v. Clay (C.J.), [2003] 3 S.C.R. 735; 313 N.R. 252; 181 O.A.C. 350; 2003 SCC 75, refd to. [para. 52].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, consd. [paras. 55, 98, 246].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 59].

R. v. Hauser, [1979] 1 S.C.R. 984; 26 N.R. 541; 16 A.R. 91, refd to. [para. 93].

R. v. Schneider - see Schneider v. British Columbia (Attorney General) et al.

Schneider v. British Columbia (Attorney General) et al., [1982] 2 S.C.R. 112; 43 N.R. 91, refd to. [paras. 93, 207].

R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; 84 N.R. 1, refd to. [para. 96].

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. 97].

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; 51 D.L.R.(4th) 161, consd. [paras. 98, 212].

Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services) - see Mazzei, Re.

Mazzei, Re, [2006] 1 S.C.R. 326; 346 N.R. 1; 222 B.C.A.C. 1; 368 W.A.C. 1; 2006 SCC 7, refd to. [para. 98].

Quebec Assisted Reproduction Reference - see Renvoi fait par le gouvernement du Québec en vertu de la Loi sur les renvois à la Cour d'appel, L.R.Q. ch. R-23, relativement à la constitutionnalité des articles 8 à 19, 40 à 53, 60, 61 et 68 de la Loi sur la procreation assistée, L.C. 2004, ch. 2 (Dans l'affaire du).

Renvoi fait par le gouvernement du Québec en vertu de la Loi sur les renvois à la Cour d'appel, L.R.Q. ch. R-23, relativement à la constitutionnalité des articles 8 à 19, 40 à 53, 60, 61 et 68 de la Loi sur la procreation assistée, L.C. 2004, ch. 2 (Dans l'affaire du), 2008 QCCA 1167, refd to. [para. 98].

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, consd. [paras. 115, 239].

Reference Re Farm Products Marketing Act (Ont.), [1957] S.C.R. 198, refd to. [para. 120].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 200 D.L.R.(4th) 219; 2001 SCC 40, refd to. [para. 123].

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, consd. [paras. 124, 202].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, consd. [paras. 124, 239].

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, consd. [paras. 124, 202].

Reference Re Adoption Act (Ont.), [1938] S.C.R. 398, refd to. [para. 132].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 143].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 147].

British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, consd. [paras. 151, 202].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 164].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 164].

R. v. Boggs, [1981] 1 S.C.R. 49; 34 N.R. 520; 58 C.C.C.(2d) 7, refd to. [para. 164].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [paras. 165, 213].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 172].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 172].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 178].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 179].

Jutt et al. v. Doehring et al. (1993), 24 B.C.A.C. 313; 40 W.A.C. 313; 82 B.C.L.R.(2d) 223 (C.A.), refd to. [para. 180].

McLean v. Southam Inc. et al., [2002] B.C.A.C. Uned. 62; 2002 BCCA 229, refd to. [para. 181].

Watson et al. v. Imperial Financial Services Ltd. et al. (1992), 11 B.C.A.C. 295; 22 W.A.C. 295; 65 B.C.L.R.(2d) 281 (C.A.), refd to. [para. 181].

Inspiration Management Ltd. v. McDermit St. Lawrence Ltd. (1989), 36 B.C.L.R.(2d) 202 (C.A.), refd to. [para. 181].

Blackwater et al. v. Plint et al., [2002] B.C.A.C. Uned. 147; 2002 BCCA 621, refd to. [para. 187].

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 2009 BCCA 563, refd to. [para. 198].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 205].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 211].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 223].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 237].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 253].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 255].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 257].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 267].

R. v. Malmo-Levine (D.) et al. (2000), 138 B.C.A.C. 218; 226 W.A.C. 218; 145 C.C.C.(3d) 225; 2000 BCCA 335, refd to. [para. 278].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 305].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2].

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

Authors and Works Noticed:

Cain, J.V., Report on the Task Force into Illicit Narcotic Overdose Deaths in British Columbia, generally [para. 37].

Canada, Policy for the New Millennium: Working Together to Redefine Canada's Drug Strategy, Report of the House of Commons Special Committee on Non-Medical Use of Drugs (2002), Recommendation No. 25 [para. 71].

Elliot, Robin, Comment (1988), 67 Can. Bar Rev. 523, p. 542 [para. 153].

Elliot, Robin, Interjurisdictional Immunity after Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Muddles the Doctrinal Waters - Again (2008), 43 S.C.L.R.(2d) 433, generally [para. 151]; pp. 480 [paras. 153, 219, 221]; 481 [para. 153].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), generally [para. 302]; pp. 15-26 [para. 208]; 404 [para. 153].

Counsel:

R. Frater and W.P. Riley, for the appellant/cross-respondent/defendant, Attorney General of Canada;

J.J. Arvay, Q.C., M. Pongracic-Speier and F.A. Schroeder, for the respondents/cross-appellants/plaintiffs, PHS Community Services Society, Dean Edward Wilson and Shelly Tomic;

C.E. Jones and K. Wolfe, for the respondent, Attorney General of British Columbia;

J.W. Conroy, Q.C., and S.J. Mulhall, Q.C., for the respondent/cross-appellant/plaintiff, VANDU;

R.D.W. Dalziel and D. Webster, Q.C., for the intervenor, British Columbia Civil Liberties Association;

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

A.I. Nathanson and M. Tsurumi, for the intervenor, Dr. Peter AIDS Foundation.

This appeal was heard on April 27 to 29, 2009, at Vancouver, B.C., before Rowles, Huddart and D. Smith, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on January 15, 2010, including the following opinions:

Rowles, J.A. - see paragraphs 1 to 79;

Huddart, J.A. - see paragraphs 80 to 199;

D. Smith, J.A., dissenting - see paragraphs 200 to 310.