An Analysis of the Inapplicability of Interjurisdictional Immunity to the Insite Decision and its Implications for the Further Centralization of Powers

This post is one of two winning papers submitted by JD students at Osgoode Hall Law School, York University as a written assignment for Prof. Richard Haigh’s State and Citizen course.

The doctrine of interjurisdictional immunity, which can be used to challenge statutes on the ground of division of powers, seeks to limit the applicability of valid statutes. This contentious doctrine is

premised on the idea that there is a “basic, minimum and unassailable content” to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government (Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134, at para 58 [Insite]).

In the Insite case, the claimants argued that interjurisdictional immunity should be applied to provide exemption for the Insite safe injection facility from federal criminal laws that prohibit the possession and trafficking of controlled substances on the grounds that Insite is a health facility within the exclusive jurisdiction of the Province. While the Supreme Court found a Charter-based exemption for Insite, it determined that interjurisdictional immunity was “neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government” (Insite, para 70). This brief post will attempt to demonstrate that this ruling has problematic implications for the division of powers in Canada by arguing that it perpetuates the centralization of powers without providing any clarification or instruction as to how interjurisdictional immunity could be applied in a way to protect provincial heads of power.

Central to the Supreme Court’s decision as to the inapplicability of interjurisdictional immunity in Insite is the idea that the doctrine has recently been narrowed (see Canadian Western Bank v Alberta, [2007] 2 SCR 3, para 47 [Western Bank], where the Court stated that it “does not favour an intensive reliance on the doctrine of interjurisdictional immunity”). In citing reasons for this narrowing, however, the Court overlooks a crucial concern: interjurisdictional immunity’s “unintentional centralizing tendency” that has resulted from its “asymmetrical” application in protecting federal heads of power from provincial intrusion (Western Bank, para 45). This asymmetrical application has also served to undermine the principle of subsidiarity, as decisions “are often best [made] at a level of government that is not only effective, but closest to the citizens affected” (see 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), [2001] 2 SCR 241, para 3, citing Western Bank, para 45). By overlooking this concern, the Court has missed an opportunity to apply the doctrine in a way that, contrary to its historical use, would help to rectify this centralizing tendency and would allow a local issue to be dealt with by those most proximate to the problem. In addition, it would give credibility to the critical assertion in Western Bank that, in principle, interjurisdictional immunity is applicable to both federal and provincial heads of authority (Western Bank, para 67). What may be more problematic, however, is that the Insite ruling further promotes the centralization of powers by refusing to apply the doctrine in a case that essentially begs for its application; as Huddart J.A. of the British Columbia Court of Appeal stated (and the Supreme Court subsequently quoted):

If interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers (Insite, para 33).

After all, the provincial undertaking, Insite, would not simply be impaired or sterilized, but entirely shut down.

The rationale behind the Supreme Court’s decision to exclude the application of interjurisdictional immunity presents further issues. The Court asserts that “courts are reluctant to identify new areas where interjurisdictional immunity applies” (Insite, para 67). Given the relatively recent affirmation that the doctrine also protects provincial heads of power, these established areas are primarily federal. This arbitrarily privileges areas of federal power such as aviation, distinguishing them from areas of provincial power solely because they were previously established as areas of exclusive jurisdiction to which interjurisdictional immunity applies (see Insite, para 60). While this reluctance could impact both federal and provincial heads of power, it would certainly have an uneven effect on provincial jurisdictions because federal heads of power have already been protected by interjurisdictional immunity. In addition, the Court argues that the claimants have failed to establish a “delineated ‘core’ of an exclusively provincial power” (Insite, para 68) and that interjurisdictional immunity has never been applied to a “broad and amorphous area of jurisdiction” (Insite, para 60). The Court, however, does not explain why the area of provincial healthcare is more amorphous than the areas of federal jurisdiction, such as Aboriginal peoples, to which the doctrine has already been applied.

Moreover, it is unclear why the delineated core could not be narrowed specifically to safe injection sites necessary for public health and safety. In fact, at the British Columbia Court of Appeal, Huddart J.A. established a possible core of the provincial healthcare powers, stating that the immunity created by using interjurisdictional immunity in this case “would apply only to exempt a health care service considered essential by a provincial agency with the authority to make that decision under provincial legislation” (Insite, para 33). This ambiguity provides no assistance for future courts in determining when a provincial head of power should be protected through interjurisdictional immunity, which could serve to further the asymmetrical application of the doctrine.

In the end, the Supreme Court’s ruling in the Insite case has served to further the centralization of powers by overlooking the asymmetrical application of interjurisdictional immunity as a justification for the doctrine’s narrowing scope, declining to apply the doctrine in a case where a federal law would shut down a critical provincial undertaking and by providing little to no framework for future application of the doctrine as it relates to the protection of provincial heads of power.