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Digest: Canada (Attorney General) v. PHS Community Services Society

[2011] S.C.J. No. 44
2011 SCC 44

Court File No. 33556

Supreme Court of Canada

September 30, 2011
On appeal from the Court of Appeal for British Columbia, [2010] B.C.J. No. 57.

Canada (Attorney General) v. PHS Community Services Society

[2011] S.C.J. No. 44

Constitutional law -- Division of powers -- Federal jurisdiction -- Federal powers -- Criminal law -- Provincial jurisdiction -- Provincial powers -- Determination of jurisdiction -- Appeal by Attorney General from decision granting Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws dismissed -- The criminal prohibitions on possession and trafficking in the Controlled Drugs and Substances Act (CDSA) were constitutionally valid and applicable to Insite under the division of powers -- In pith and substance, the impugned provisions of the CDSA were valid exercises of the federal criminal law power -- Scheme of the CDSA conformed to the Charter -- However, the actions of federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA were in violation of s. 7 of the Charter, and could not be justified under s. 1 -- Accordingly, Minister was ordered to grant Insite an extended exemption.

Constitutional law -- Canadian Charter of Rights and Freedoms -- Reasonable limits on Charter rights -- Demonstrably justified in free and democratic society -- Oakes test -- Rational connection -- Legal rights -- Life, liberty and security of person -- Right not to be deprived thereof -- Principles of fundamental justice -- Remedies for denial of rights -- Appropriate and just in the circumstances -- Appeal by Attorney General from decision granting Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws dismissed -- Controlled Drugs and Substances Act was applicable to Insite, and scheme of the CDSA conformed to the Charter -- However, the actions of federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA were in violation of s. 7 of the Charter, and could not be justified under s. 1 -- Accordingly, Minister was ordered to grant Insite an extended exemption.

Criminal law -- Controlled drugs and substances -- Possession -- Other substances -- Trafficking -- Other substances -- Appeal by Attorney General from decision granting Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws dismissed -- The criminal prohibitions on possession and trafficking in the Controlled Drugs and Substances Act (CDSA) were constitutionally valid and applicable to Insite under the division of powers -- In pith and substance, the impugned provisions of the CDSA were valid exercises of the federal criminal law power -- Scheme of the CDSA conformed to the Charter -- However, the actions of federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA were in violation of s. 7 of the Charter, and could not be justified under s. 1 -- Accordingly, Minister was ordered to grant Insite an extended exemption.

Appeal by the Attorney General of Canada from the judgment of the Court of Appeal for British Columbia which granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. Cross-appeal by VANDU challenging the application of the prohibition on possession to all addicted persons. Since 2003, the Insite safe injection facility provided medical services to intravenous drug users in Vancouver. In 2008, the federal government failed to extend Insite’s exemption from the operation of criminal laws in the Controlled Drugs and Substances Act (CDSA). The claimants brought an action for declarations that the CDSA was inapplicable to Insite. They also sought a declaration that its application resulted in a violation of their s. 7 rights under the Charter, or, in the alternative, that the refusal by the federal Minister of Health to grant an extension of Insite’s exemption, had violated the claimants’ s. 7 rights. The trial judge found that denial of access to the health services provided at Insite violated its clients’ s. 7 rights. He found that many of the health risks of injection drug use are caused by unsanitary practices and equipment, and not by the drugs themselves. He held that the violation of s. 7 could not be saved under s. 1 of the Charter and declared ss. 4(1) and 5(1) CDSA unconstitutional. The Court of Appeal upheld the trial judge’s conclusion that Insite should continue to operate free from federal drug prohibitions.

HELD: Appeal dismissed; cross-appeal dismissed. The criminal prohibitions on possession and trafficking in the CDSA were constitutionally valid and applicable to Insite under the division of powers. The impugned provisions were not ultra vires. The fact that the law at issue had the incidental effect of regulating provincial health institutions did not mean that it was constitutionally invalid. In pith and substance, the impugned provisions of the CDSA were valid exercises of the federal criminal law power. In addition, the court rejected the argument that once a province established that a particular activity served the public interest, that activity was exempt from the operation of federal criminal laws. The CDSA granted no leeway to the provinces, and could not be interpreted as exempting the provinces from its provisions. Furthermore, the doctrine of interjurisdictional immunity was not necessary or helpful in resolving the contest between the federal government and the provincial government. 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, and was not immune from federal interference. With respect to the validity of the legislation under s. 7 of the Charter, the claimants’ s. 7 interests were engaged by the prohibition on possession of drugs in s. 4(1) of the CDSA. Without an exemption from the application of the CDSA, the health professionals working at Insite would be unable to offer medical supervision and counselling to Insite’s clients. This deprived the clients of Insite of potentially lifesaving medical care, thus engaging their rights to life and security of the person. While s. 4(1) limited the claimants’ rights, they had not shown that the prohibition on trafficking in s. 5(1) of the CDSA constituted such a limitation. However, because the CDSA conferred on the Minister the power to grant exemptions, it did so in accordance with the principles of fundamental justice. While the CDSA did not violate s. 7 of the Charter, the Minister’s decision violated the claimants’ s. 7 Charter rights. The discretion vested in the Minister of Health was not absolute: as with all exercises of discretion, the Minister’s decisions had to conform to the Charter. Since exempting Insite from the application of the possession prohibition furthered the objectives of public health and safety, the government action qualified as arbitrary. The effect of denying the services of Insite to the population it served was grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. Consequently, the Minister’s refusal to grant Insite an exemption was not in accordance with the principles of fundamental justice. The Minister’s refusal to grant an exemption to Insite violated s. 7 in a manner that could not be justified under s. 1. The Court ordered the Minister to grant an exemption to Insite under s. 56 of the CDSA forthwith.

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