Supervised Injection Sites: Threat to Canadian Federalism?
Health care undertakings by a province are potentially immune from criminal law. That is the conclusion reached by a 2-1 majority in PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 [PHS]. The case concerned Insite, a Vancouver clinic which provides a safe place for addicts to use drugs, and the applicability of federal drug laws to its activities. The British Columbia Court of Appeal (“BCCA”) has been heralded as courageous for standing up to the Harper government’s “get tough” approach to drug addicts who make use of Vancouver’s Insite clinic, and pundits are urging the federal government to accept the ruling.
However courageous, the federal government should seek leave from the Supreme Court of Canada (“SCC”) to appeal. Both the trial and majority appellate decisions misconstrue and misapply the doctrines of paramountcy and interjurisdictional immunity. Despite the Court’s attempt to simplify these doctrines in Canadian Western Bank v Alberta,  2 SCR 3 [Canadian Western Bank], and British Columbia (Attorney General) v Lafarge Canada Inc,  2 SCR 86 [Lafarge], further clarity and guidance are needed.
Insite was opened in 2003 as a response to a variety of drug-related problems in Vancouver’s notorious “Downtown Eastside”. The clinic provides a range of services to injection drug users, including clean needles and a safe place for addicts to use their drugs. When it opened, Insite and its employees/volunteers were immunized from the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], pursuant to a three-year ministerial exemption by the Minister of Justice under section 56 of the Act. This ministerial exemption was subsequently extended (twice) to June 30, 2008. Faced with the Harper government’s unwillingness to provide further extensions, supporters of Insite sought judicial relief.
The BCSC Decision
The actions brought by the PHS Community Services Society (the operator of Insite) and the Vancouver Area Network of Drug Users (VANDU) sought a range of declaratory relief in order to allow Insite to continue its work free from the constraints of the CDSA:
- That the activities undertaken by staff and volunteers at Insite do not violate sections 4 and 5 of the CDSA;
- That Insite is a provincial undertaking related to health, and therefore interjurisdictionally immune from the CSDA; or
- That section 4(1) and 5(1) of the CDSA should be struck down as a breach of section 7 of the Charter of Rights and Freedoms because they deprive a person addicted to a controlled substance access to health care at Insite.
Sections 4 and 5 of the CDSA criminalize possession and trafficking in controlled substances. Insite workers are likely caught by the broad definitions of possession and trafficking given that the clinic’s workers are fully aware that clients possess drugs and facilitate the consumption of drugs.
In his reasons, Mr. Justice Pitfield canvassed the social context of Vancouver’s Downtown Eastside, and the circumstances leading to the opening of Insite. In one particularly pointed passage, Justice Pitfield noted:
Whatever the shortcomings in the science surrounding the assessment of outcomes at Insite, and however the disputes may be resolved among those who engage in the assessment of the efficacy of safe injection sites generally, or Insite in particular, all of the evidence adduced by PHS, VANDU and Canada supports some incontrovertible conclusions:
1. Addiction is an illness. One aspect of the illness is the continuing need or craving to consume the substance to which the addiction relates.2. Controlled substances such as heroin and cocaine that are introduced into the bloodstream by injection do not cause Hepatitis C or HIV/AIDS. Rather, the use of unsanitary equipment, techniques, and procedures for injection permits the transmission of those infections, illnesses or diseases from one individual to another; and3. The risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.
What is less certain and more controversial are the root causes of addiction. The evidence adduced in these proceeding regarding the character of the DTES, many of its inhabitants, and the nature of addiction leads me to the following assessment.
Residents of the DTES who are addicted to heroin, cocaine, and other controlled substances are not engaged in recreation. Their addiction is an illness frequently, if not invariably, accompanied by serious infections and the real risk of overdose that compromise their physical health and the health of other members of the public. I do not assign or apportion blame, but I conclude that their situation results from a complicated combination of personal, governmental and legal factors: a mixture of genetic, psychological, sociological and familial problems; the inability, despite serious and prolonged efforts, of municipal, provincial and federal governments, as well as numerous non-profit organizations, to provide meaningful and effective support and solutions; and the failure of the criminal law to prevent the trafficking of controlled substances in the DTES as evidenced by the continuing prevalence of addiction in the area.
(PHS Community Services Society v Canada (Attorney General), 2008 BCSC 661, paras 87-89.)
On the merits of the dispute, Justice Pitfield declined the first two claims of relief sought. Relying on Solosky v The Queen,  1 SCR 821, Justice Pitfield found that declaratory relief in respect of the conduct of Insite staff and volunteers was inappropriate because the criminal standards for drug-related offences are settled by law, and require a case-by-case factual inquiry.
The trial decision also found the doctrine of interjursidictional immunity inapplicable to the case. Justice Pitfield concluded that the Supreme Court’s decisions in Canadian Western Bank, paras 33-78, and Lafarge, para 4, which counsel significant restraint in the application of interjurisidctional immunity, ruled out its application. However, Justice Pitfield was persuaded that, because addicts suffer from an illness, denying them access to a safe injection site that mitigates the risk of overdose and transmission of disease violates section 7 of the Charter. As a result, the court found sections 4(1) and 5(1) of the CDSA unconstitutional and gave Parliament one year to adopt constitutionally compliant laws.
The BCCA Decision
Both sides of the dispute appealed the trial decision. On appeal, PHS argued that the trial court erred in its failure to apply the doctrine of interjurisdictional immunity. The government appealed the trial court’s finding declaration that sections 4(1) and 5(1) of the CDSA were unconstitutional. Two judges of the BCCA (Rowles and Huddart, JJ.A.) sided with PHS, and found that the doctrine of interjurisdictional immunity rendered the CDSA inapplicable to the health undertaking at Insite. Although agreeing that this finding resolved the appeal, Rowles, J.A. went on to conclude that the trial judge’s decision on the Charter issue was also correct. Smith J.A. dissented and found that the doctrine of interjurisdictional immunity did not apply to Insite, and furthermore would have reversed the finding of the trial judge in respect of the Charter.
The majority of the BCCA concluded that Insite was “vital” to the province’s health care undertaking in downtown Vancouver. This conclusion, according to Huddart J.A., justifies shielding Insite from the CDSA:
… Insite is a provincial undertaking. It is a health care facility created under and regulated by provincial legislation within the province’s exclusive power. The only purpose of a health care facility is to provide health care services. The supervised drug injection service it provides is, as the trial judge found, “vital” to its provision of health care services to the community it serves (at para. 117). It would be difficult to envisage anything more at the core of a hospital’s purpose, than the determination of the nature of the services it provides to the community it serves. Indeed, it would be difficult to envisage anything more at the core of the province’s general jurisdiction over health care than decisions about the nature of the services it will provide.
(PHS at para 157) [emphasis original] [citations omitted]
Because the CDSA would impair Insite’s work in reducing the transmission of HIV/AIDS and incidence of overdose, federal criminal law ought not to apply. For her part, Smith J.A. would have resolved the issue based on the paramountcy doctrine, finding that the province’s interest in providing health care must give way to the criminal law power:
The doctrine of interjurisdictional immunity cannot be applied to shield Insite from the applicability of s. 4(1) of the CDSA. To do so would significantly impair the federal criminal law mandate over controlled substances and create a gap in its general application across Canada. The effect of its application would require both jurisdictions to be wilfully blind to what Canada describes as “the chain of illegal distribution” or how the heroin injected by users of Insite is obtained from its place of original production, transported into Canada, distributed within Canada, sold to the consumers of illicit drugs, and from which the monetary proceeds are laundered domestically and internationally. This gap could grow larger if other provinces took advantage of the immunity proposed in this case: supervised injection sites could be opened in every city across Canada. The creation of “enclaves” where illicit drugs may be brought for intravenous drug use, without the potential for prosecution, could eviscerate the efficacy of a criminal law validly enacted by Parliament that seeks to address the broader context and consequences of illicit drug use across the entire supply chain.
(PHS at para 244) [emphasis added]
The Need for an Appeal
While there may well be good policy arguments for allowing Insite to continue to operate, the decisions in PHS are concerning in terms of federalism and Canada’s constitutional division of powers. The decisions in PHS are concerning because the various opinions misapply both the doctrines of paramountcy and interjurisdictional immunity.
The paramouncy doctrine, part of the double aspect theory of Canadian constitutional jurisprudence, requires a conflict as between federal and provincial law. As the Court stated in Multiple Access Ltd v McCutcheon,  2 SCR 161 [Multiple Access]:
In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other. (191)
For paramouncy to be triggered, the laws of two different orders of government must come into direct conflict.
Insite is not a creature of statute. As Huddart J.A. noted, BC law does grant broad authorization to the BC health authorities to address health-related issues (PHS at paras 104-108). However, nothing in BC law authorizes, or, to borrow from Multiple Access, directs the staff at Insite to violate the CDSA. Interestingly, a bill was presented to the BC legislature to recognize and protect the activities at Insite under provincial law (British Columbia, Bill M-214, Supervised Injection Facility Designation Act, 4th Sess., 38th Parl., 2008).
To date, no BC law or regulation appears to specifically reference Insite or the activities at Insite in relation to the CDSA. Instead, Insite operates through a series of agreements between provincial authorities and local health authorities. BC law does not appear to command the staff at Insite to do that which federal law precludes. Paramountcy simply does not apply in this context.
In addition to clarifying the application of parmountcy, an appeal to the SCC would provide an opportunity to further define the scope of interjurisdictional immunity and its relevance in the context of Insite. Although recent decisions in Canadian Western Bank and Lafarge did go some way to defining (and restricting) the role of interjurisdictional immunity, key questions remain. First, it remains unsettled whether interjurisidctional immunity applies in respect of provincial undertakings. While there seems no principled reason to deny its application to provincial undertakings, the SCC has cautioned that extending the doctrine beyond those undertakings already addressed in the jurisprudence (railways, banks, Indians) should be avoided (Canadian Western Bank, para 77).
Second, it is unclear whether interjurisdictional immunity applies to the undertaking that is affected by the impugned law, or the head of power upon which the undertaking is based. Robin Elliot’s article on Canadian Western Bank (“Interjurisdictional Immunity After Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Middies the Doctrinal Wasters – Again” (2008), 43 SCLR (2d) 433 at 490-91), cited by both the majority and dissent in PHS, suggests that interjursidictional immunity should examine whether the law in question affects the head of power, rather than the undertaking itself. If this is the case, then the majority reasoning in PHS is open to serious doubt.
The CDSA does not substantially affect the ability of BC to provide health care in the general sense. An extreme example would be a federal law that criminalized opening a hospital within 100 metres of federal land. If the “dominant tide” of Canadian constitutionalism is to allow each level of government to effectively function, is it unreasonable that the provision of health care respect the criminal ban on certain narcotic substances?
While the facts in PHS are unique in terms of the drug problems faced in downtown Vancouver, the Court of Appeal’s ruling in PHS has potentially broad scope. Can provinces effectively immunize themselves from the criminal law via their exclusive powers? For example, could a province allow a person to obtain assistance in ending his or her life in the name of providing health care? Indeed, could the battle in Rodriguez v British Columbia (Attorney General),  3 SCR 519, be fought (and won) on federalism grounds rather than on the basis of individual rights? The “enclaves” theory of the division of powers has been rejected in Canadian jurisprudence. Are undertakings such as Insite exceptions to the general rule against enclaves? This is a question best put to the SCC. Consequently, leave should be sought to address these fundamental constitutional questions.
(David Quayat is an international attorney, admitted in Ontario, with White & Case LLP in Washington, DC. He is a former law clerk to Chief Justice Allan Lutfy of the Federal Court, 2008/2009.)