Canada (Attorney General) v PHS Community Services

2011 SCC 44

SCC Reasons for Judgment

Faculty of Law commentary on the decision

Kent Roach, “The Supreme Court’s remedial decision in the Insite decision,” (2012) 6 J Parliamentary & Pol L 238.

Case Summary:

Insite is a safe injection facility in Vancouver’s downtown eastside that provides medical supervision to intravenous drug users. It has operated since 2003 under an exemption from the prohibition on possession of illicit drugs in the Controlled Drugs and Substances Act. In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this action.
The claimants, the operator and clients of Insite, argued that the division of powers makes the federal CDSA prohibitions inapplicable to the provincial health activities of Insite staff and patrons. The claimants also submitted that sections of the CDSA were of no effect because they violated the claimants’ s.7 Charter rights.

The federal CDSA provisions do apply to provincial health activities. While the provisions do not violate the claimants’ s.7 rights, the Minister’s failure to provide an exemption does.

Reasons – Division of Powers
The claimants argued that interjurisdictional immunity shields provincial decisions about medical treatments from federal government interference. The court rejected this argument, overturning the majority of the Court of Appeal. McLaughin C.J.C. noted that recent jurisprudence has limited the use of interjurisdictional immunity, preferring to accommodate both provincial and federal legislation through use of the concepts of double aspect and cooperative federalism.
The court gave three reasons for rejecting the interjurisdictional immunity claim. First, immunity of the provincial health power had never been recognized in the jurisprudence. (This point was not determinative; theoretically new areas of exclusive jurisdiction could be identified in the future.) Second, and more importantly, the claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps substantially with federal jurisdiction. Third, granting interjurisdictional on the facts might result in a “legal vacuum” where neither government is able to legislate.
The court was careful to affirm that the doctrine of interjurisdictional immunity has been narrowed, not abolished. Moreover, it is not confined to federal powers (one of the majority judgments at the Court of Appeal claimed that if interjurisdictional immunity was not available on these facts, “then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers.”) However, the judgement implicitly suggests that future interjurisdictional immunity arguments should be limited to invoking previously identified “core” undertakings.

Reasons – Charter argument
The claimants argued that sections of the CDSA are invalid because they limit the claimants’ s.7 Charter rights. In the alternative, the claimants submitted that their s.7 rights have been violated by the Minister of Health’s decision not to exempt Insite from the CDSA. The court agreed with the alternative argument.
The court found that the prohibition of possession in the CDSA engages the claimants’ s.7 right to liberty since its breach can result in imprisonment. It also engages Insite clients’ s.7 rights to life and security of the person by denying them access to “potentially lifesaving medical care.”
However, the court found that these limitations do not run afoul of the principles of fundamental justice. The claimants’ arguments that the CDSA prohibition on possession was arbitrary, overbroad and disproportionate were dismissed on the grounds that the CDSA has a built-in “safety valve” – it empowers the Minister to grant exemptions to the prohibition on possession for medical and scientific purposes.
While the statute did not violate the claimants’ s.7 rights, the court held that the Minister’s decision did. Following Suresh, the Minister’s exercise of discretion must conform to the Charter. The Minister’s decision engages the s.7 rights of the claimants for the same reasons that the CDSA does. Unlike the CDSA, however, the Minister’s decision was arbitrary and disproportionate in its effects.
It was arbitrary because the purpose of the CDSA is to protect health and public safety, and exempting Insite from the CDSA would further these goals. The court noted that although the SCC split over the definition on arbitrariness in Chaoulli, the Minister’s decision would be arbitrary under either definition. The Minister’s decision was also grossly disproportionate in its effects. Denying the life saving services that Insite provides is grossly disproportion to the benefit of having a uniform drug policy.


Date Document
2010/10/24 Appellant – Attorney General of Canada
2011/02/01 Respondent – Attorney General of British Columbia
2011/02/01 Respondent – PHS Community Services Society et al
2011/02/03 Respondent – Vancouver Area Network of Drug Users
2011/04/13 Intervener – BCCLA
2011/04/13 Intervener – CCLA
2011/04/14 Intervener – BC Nurses Union
2011/04/12 Intervener – Dr. Peter AIDS Foundation
2011/04/12 Intervener – Canadian Medical Association
2011/04/13 Intervener – HIV AIDS Legal Network et al
2011/03/28 Intervener – REAL Women of Canada
2011/04 Intervener – Vancouver Coastal Health Authority
2011/04/12 Interveners – Canadian, Ontario & BC Nurses Associations