Canada (Attorney General) v PHS Community Services Society: Part II, Life, Liberty and Security of the Person in Vancouver’s Downtown East Side

This is the second part of a two-part post regarding Canada (Attorney General) v PHS Community Services Society. Part I can be found here. 

Section 7: Life, Liberty and Security of the Person in Vancouver’s Downtown East Side

The claimants in (case) having failed to establish that the criminal prohibitions on possession and trafficking in the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] are constitutionally invalid, as discussed in a Part II of this series, made three Charter claims, discussed herein.

First, the claimants argued that ss. 4(1) and 5(1) of the CDSA (the prohibitions on possession and trafficking) are invalid because they limit the claimants’ s. 7 rights to life, liberty and security of the person and are not in accordance with the principles of fundamental justice. Alternatively, the claimants’ argue that their s. 7 rights have been infringed by the Minister’s refusal to extend the exemption for Insite from the application of the CDSA. The Vancouver Area Network of Drug Users (“VANDU”) also submitted that the CDSA’s prohibition on possession and trafficking drugs limits the s. 7 Charter rights of all addicted drug users everywhere, not simply at Insite.  In addressing these claims the Supreme Court of Canada (“SCC”) first rejected the Government’s argument that that if the CDSA is valid and applies to Insite under the division of powers, then the Charter arguments must fail as well. The Court found that the need for a federal exemption to the provisions of the CDSA was necessary not because Insite cannot operate without it for lack of constitutional powers of the Province, but rather, given that neither staff nor clients would come to the facility without an exemption, the possibility of offering the proposed health services is effectively eliminated.

Chief Justice McLachlin states: “The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use. It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter.”

Crucial to the Charter analysis in this case is a particular finding of fact by the trial judge who found that many of the health risks associated with intravenous drug use are not caused by the drugs themselves, but, rather, by the unsanitary practices and equipment used. He further notes that “[t]he risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.”  It is this finding of fact that supports the conclusion that the denial of access to the health care services by virtue of the denial of an exemption to s. 4(1) of the CDSA violates s. 7 rights to life, liberty and security of the person of the staff and clients of Insite. The trial judge also found that addiction is a disease, the primary characteristic of which is the lack of control over the use of the addictive substance. This finding served in large part to undercut the Government’s argument on choice, which held that, from a factual perspective, personal choice, and not the law was the cause of the death and disease that Insite prevents.

The Court found that the s. 7 Charter rights of clients and staff of Insite were engaged only by the prohibition on possession, and not trafficking. Indeed, no act that could be construed as “trafficking” is permitted at Insite. The liberty interests of the staff of Insite are engaged because the prohibition on the proscribed drugs exposes them to the threat of imprisonment for doing their job. The threat to the liberty interests of the staff, in turn, impacts the s. 7 rights of clients who seek the services provided at Insite. Without an exemption, the health professionals at Insite would be unable to offer services to their clients. As such, the rights to life and security of the person of clients are engaged. The Court found that this applied only to s. 4(1) of the CDSA, and not s. 5(1), the prohibition on trafficking. However, the “safety valve” provisions of ss. 55 and 56 render the legislation valid as it prevents the CDSA from applying where its application would be arbitrary, overbroad or grossly disproportionate in its effects. Thus, the Charter deprivations stem not from the legislation itself, but, rather, from the Minister’s decision not to grant the exemption.

Applying Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, the Court noted that the discretion of the Minister is not absolute. All exercises of discretion must also be in line with the Charter. Here, the Minister’s discretion is exercised unconstitutionally when it results in an application of the CDSA that limits the s. 7 rights of individuals in a way that is not in accordance with the Charter. The rights of the staff and clients of Insite are engaged with regards to the Minister’s decision in the same manner as they are engaged by the application of s. 4(1) of the CDSA because, but for the temporary remedial order made by the trial judge pending the conclusion of these proceedings, Insite would not practically be able to operate.

The Court concluded that the Minister’s refusal to grant Insite a s. 56 exemption was arbitrary and grossly disproportionate in its effects, and thus, was not in accordance with the principles of fundamental justice.

Arbitrariness

Decisions of the Minister under s. 56 of the CDSA must target the purpose of the Act. The state’s objectives with regards to the CDSA (then the Narcotics Control Act) were identified by the SCC in R v Malmo-Levine; R v Caine, [2003] 3 SCR 571 [Malmo-Levine] as the protection of health and public safety. The relationship between the general prohibition on possession in the CDSA and the state objective (with regards to marijuana) was recognized in Malmo-Levine:

The Criminalization of possession is a statement of society’s collection disapproval of the use of psychoactive drugs…and through Parliament, the continuing view that its use should be deterred. The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm. In particular, criminalization seeks to take marijuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers (para 136).

The fundamental question to be posed is whether the decision that the CDSA applies to the activities at Insite bears the same relationship to the state objective. The burden is on the claimants to establish that the limit imposed by the law fails to conform to the principles of fundamental justice. The information available to the Minister when he rejected the application for exemption was consistent with both the key findings of the trial judge and the information which successive Ministers relied on in granting exemption orders for nearly five years. The findings suggest that far from hindering the objectives of public health and safety, providing Insite with an exemption would, in fact, further those goals. In Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 [Chaoulli] various approaches to defining arbitrariness were articulated. In its application here, Chief Justice McLachlin found that whether defined in terms of necessity of the limit to further state objectives or inconsistency with state objectives behind the legislation, the government action in this case was arbitrary.

The gross disproportionality of the decision was established by noting that Insite offers services that save lives, and that no negative impact on the public health and safety objectives of Canada has been discernable. The benefit to the state of presenting a uniform stance on the possession of narcotics is far outweighed by the effects of denying Insite’s services to their clients.

Having established that the Minister’s decision was both arbitrary and grossly disproportionate in its effects the Court declined to consider the issue of overbreadth as the claimants had already met the burden of demonstrating that the Minister’s decision to refuse to grant the s. 56 exemption was not in accordance with the principles of fundamental justice. Given that the refusal to grant a s. 56 exemption bears no relationship to the objectives of maintenance and promotion of public health and safety, the decision cannot be upheld under s. 1 of the Charter.

The Court also rejected the Minister’s fear-mongering argument that the rule of law would be undermined by granting the s. 56 exemption to Insite and as such the refusal to grant this exemption is justified. The government’s argument that granting the exemption to Insite “would effectively turn the rule of law on its head by dictating that where a particular individual breaks the law with such frequency and persistence that he or she becomes unable to comply with it, it is unconstitutional to apply the law to that person” does not hold water. The decision in this case does not leave the laws of Canada open to being flouted with impunity. It requires only that the state not deprive individuals of their s. 7 rights to life, liberty and security of the person in a way that violates the principles of fundamental justice as it administers the criminal law.

Having made out the constitutional violation, the Court is empowered under s. 24(1) of the Charter to fashion a remedy (R v 974649 Ontario Inc., [2001] 3 SCR 575) Given the circumstances of the case, the Court granted an order of mandamus, and ordered the Minister to grant Insite the s. 56 exemption. The court found that this was the only legitimate remedy available, given the findings of fact at trial. This leaves the Minister’s discretion intact with regards to forthcoming applications for exemption from Insite or other organizations. This decision serves as a reminder that the discretion of a Minister as legitimately laid out in legislation cannot be substituted with the Court’s discretion, but that the exercise of the Minister’s discretion must always conform to the constraints imposed by the Charter.