Canada (Attorney General) v PHS Community Services Society: Part I, Activism in the Supreme Court of Canada
This is the first part of a two-part post regarding Canada (Attorney General) v PHS Community Services Society. Part II can be found here.
Facts and Judicial History
Vancouver’s Downtown East Side (“DTES”) has long been known for its rather unique neighbourhood makeup. 4,600 intravenous drug users, nearly half of all of those in the city are crammed into just a few city blocks that are littered with evidence of the bleak existence of its inhabitants. By the early 1990s, injection drug use had reached crisis levels and epidemics of HIV/AIDS and Hepatitis C soon developed. In September 1997 a public health emergency was declared in the DTES. With an already marginalized population dealing with complex mental, physical and emotional health issues, health authorities recognized that a conventional abstinence-based solution, simply would not be effective. Instead, after years of research and planning, the Vancouver Coastal Health Authority in conjunction with the Province proposed a plan that addressed the health concerns of residents at all points in the treatment of their addiction, and not simply when they had been able to quit drugs for good. The plan included supervised drug consumption facilities, which, although controversial in North America, have been established with success to address health issues surrounding injection drug use in seventy other cities in Europe and Australia.
Legally operating a supervised injection site in Canada requires an exemption from the prohibitions on possession and trafficking of controlled substances under s. 56 of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], which provides for exemption from application of the CDSA at the discretion of the Minister of Health “if, in the opinion of the Minister, the exemption is necessary for medical or scientific purpose or is otherwise in the public interest.” The clinic, Insite, opened its doors in September 2003, shortly after receiving this conditional exemption, and has been in operation daily from 10am to 4am since.
To be clear, the site does not provide drugs to its clients; it is a strictly regulated health facility. Upon arrival the client must check in and sign a waiver. They are closely monitored during and after injection. Clients are provided with health care information, counseling and referrals to various service providers or an on-site, on demand detox centre. The services available at Insite help to mitigate many of the significant risks of intravenous drug use, such as sharing needles, using dirty puddle water for injection, and accidental overdose. The endeavor is supported at the local and provincial level of government as well as the by the police and wider community in the area. Insite has proven to save lives and improve health.
In 2008, a formal application for a new exemption was made, prior to the expiry of the initial exemption. This action was commenced in the Supreme Court of British Columbia when the Minister denied the application. The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA, which prohibit possession and trafficking of controlled substances, violated the claimants’ rights under s. 7 of the Charter. Insite was granted a constitutional exemption, allowing it to operate free from the federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of inter-jurisdictional immunity applied. The Supreme Court of Canada (“SCC”) in a unanimous decision dismissed the appeal and cross-appeal and ordered the Minister to grant an exemption to Insite under s. 56 of the CDSA.
The SCC’s decision in Canada (Attorney General) v PHS Community Services Society,  3 SCR 134, speaks to the legal realist in me. It is not difficult to get on board with the result of the case; of course, a program that manages to address the health of a marginalized population with distinct health challenges should be supported. Nonetheless, the manner in which the court arrived at its decision raises some questions regarding the degree to which the court is encroaching on the legitimate role of Parliament. Below, I will discuss the Court’s arguments regarding the doctrine of inter-jurisdictional immunity. The SCC’s analysis of the s. 7 challenge and concluding thoughts will appear in a forthcoming post.
The Court was not keen to extend the inter-jurisdictional immunity doctrine in this case. The doctrine of inter-jurisdictional immunity comes into play in conflicts of division of powers between the federal Parliament and provincial Legislatures. It is a doctrine by which a province is prohibited from legislating in a manner that would have an adverse effect on the core of a federal head of power (and vice versa). The doctrine is narrow and its premise of fixed water tight cores of jurisdiction is at odds with the modern federalism tendency to allow overlap, as evidenced by the double aspect doctrine and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Though the doctrine is not dead, it is out of step with the modern trend of striking a balance between the federal and provincial government and performing a pith and substance analysis and restrained application of federal paramountcy. Before extending the doctrine of inter-jurisdictional immunity to a new area, the court should ask whether the constitutional issue can be resolved on another basis.
Here, the Court found that the proposed core of provincial power of health had never been recognized in jurisprudence. Furthermore, the Court found that the claimants had not delineated a “core” of exclusive provincial power, noting that this area is broad and extensive, encompassing thousands of activities in many places; a poor fit for this limited application of this doctrine. Furthermore, the court applied Canadian Western Bank v Alberta,  2 SCR 3, and noted that applying the doctrine of inter-jurisdictional immunity would be at odds with the emergent practice of cooperative federalism and the general preference, where possible, for the ordinary operation of statutes enacted by both levels of government. The court also expressed concern that applying the doctrine of inter-jurisdictional immunity would create legal vacuums as the government benefiting from the immunity is not actually compelled to legislate in the area. In light of the doctrine’s narrow scope and the potential for complications that would stem from its application, the Court found that the doctrine of inter-jurisdictional immunity was neither necessary nor helpful, and accordingly dismissed the claimants’ argument.