Attorney General of Canada v. Minister of Health for Canada, 2011 SCC 44

SUPREME COURT OF CANADA Citation: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 Date: 20110930 Docket: 33556 Between: Attorney General of Canada and Minister of Health for Canada Appellants / Respondents on cross-appeal and PHS Community Services Society, Dean Edward Wilson, Shelly Tomic and Attorney General of British Columbia Respondents Vancouver Area Network of Drug Users (VANDU) Respondent / Appellant on cross-appeal - and - Attorney General of Quebec, Dr.

Peter AIDS Foundation, Vancouver Coastal Health Authority, Canadian Civil Liberties Association, Canadian HIV/AIDS Legal Network, International Harm Reduction Association, CACTUS Montréal, Canadian Nurses Association, Registered Nurses’ Association of Ontario, Association of Registered Nurses of British Columbia, Canadian Public Health Association, Canadian Medical Association, British Columbia Civil Liberties Association, British Columbia Nurses’ Union and REAL Women of Canada Interveners Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 159) McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)

Canada ( Attorney General) v. PHS Community Services Society , 2011 SCC 44, [2011] 3 S.C.R. 134 Attorney General of Canada and Minister of Health for Canada Appellants/Respondents on cross-appeal v. PHS Community Services Society, Dean Edward Wilson, Shelly Tomic and Attorney General of British Columbia Respondents and Vancouver Area Network of Drug Users (VANDU) Respondent/Appellant on cross-appeal and Attorney General of Quebec, Dr.

Peter AIDS Foundation, Vancouver Coastal Health Authority, Canadian Civil Liberties Association, Canadian HIV/AIDS Legal Network, International Harm Reduction Association, CACTUS Montréal, Canadian Nurses Association, Registered Nurses’ Association of Ontario, Association of Registered Nurses of British Columbia, Canadian Public Health Association, Canadian Medical Association, British Columbia Civil Liberties Association, British Columbia Nurses’ Union and REAL Women of Canada Interveners Indexed as: Canada ( Attorney General) v.

PHS Community Services Society 2011 SCC 44 File No.: 33556. 2011: May 12; 2011: September 30.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for british columbia Constitutional law — Division of powers — Criminal law — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act (“CDSA”) prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health — Clinic operating safe injection site pursuant to ministerial exemption granted under s. 56 of Act — Minister subsequently revoking exemption — Whether division of powers exempts clinic as health facility from application of CDSA as exercise of federal jurisdiction over criminal law — Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 5(1), 56 — Constitution Act, 1867, ss. 91(27) , 92(7) , 92(13) , 92(16) .

Constitutional law — Charter of Rights — Right to life, liberty and security of the person — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health — Clinic operating safe injection site pursuant to ministerial exemption granted under s. 56 of Act — Minister subsequently revoking exemption — Whether ss. 4(1) and 5(1) of Act contravene claimants’ rights to life, liberty and security of the person — Whether decision of Minister to revoke accords with principles of fundamental justice — Controlled Drugs and

Substances Act, S.C. 1996, c. 19, ss. 4(1), 5(1), 56 — Canadian Charter of Rights and Freedoms, ss. 1 , 7 . Constitutional law — Charter of Rights — Remedies — Safe injection site — Sections 4(1) and 5(1) of Controlled Drugs and Substances Act prohibiting possession and trafficking of illegal drugs subject to exemption from federal Minister of Health granted under s. 56 of Act — Clinic operating safe injection site pursuant to ministerial exemption — Minister subsequently revoking exemption — Appropriate remedy — Canadian Charter of Rights and Freedoms, s. 24(1) .

In the early 1990s, injection drug use reached crisis levels in Vancouver’s downtown eastside (“DTES”). Epidemics of HIV/AIDS and hepatitis C soon followed, and a public health emergency was declared in the DTES in September 1997. Health authorities recognized that creative solutions would be required to address the needs of the population of the DTES, a marginalized population with complex mental, physical, and emotional health issues.

After years of research, planning, and intergovernmental cooperation, the authorities proposed a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply when they quit drugs for good. The proposed plan included supervised drug consumption facilities which, though controversial in North America, have been used with success to address health issues associated with injection drug use in Europe and Australia.

Operating a supervised injection site required an exemption from the prohibitions of possession and trafficking of controlled substances under s. 56 of the CDSA , which provides for exemption at the discretion of the Minister of Health, for medical and scientific purposes. Insite received a conditional exemption in September 2003, and opened its doors days later. North America’s first government-sanctioned safe injection facility, it has operated constantly since then. It is a strictly regulated health facility, and its personnel are guided by strict policies and procedures.

It does not provide drugs to its clients, who must check in, sign a waiver, and are closely monitored during and after injection. Its clients are provided with health care information, counselling, and referrals to various service providers or an on-site, on demand detox centre. The experiment has proven successful. Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area. It is supported by the Vancouver police, the city and provincial governments. In 2008, a formal application for a new exemption was made before the initial one expired.

The Minister had granted temporary extensions in 2006 and 2007, but he indicated that he had decided to deny the application. When the expiry of the extensions loomed, this action was started in an effort to keep Insite open. The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA violated the claimants’ rights under s. 7 of the Charter . He granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of interjurisdictional immunity applied.

Held : The appeal and the cross-appeal are dismissed. The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith. The criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers. First, the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal criminal law power. The fact that they have the incidental effect of regulating provincial health institutions does not mean that they are constitutionally invalid.

Second, provincial programmes designed to advance the public interest are not, by virtue of their public interest status, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited. The CDSA does not contain such a limit. Third, the doctrine of interjurisdictional immunity does not apply. D ecisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference.

In addition, t he doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional

interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Finally, as it is common ground that, absent a constitutional immunity, the federal law constrains operations at Insite and trumps any provincial legislation or policies that conflict with it, it is unnecessary to inquire into whether the doctrine of paramountcy applies. The claimants’ lack of success on the division of powers issue does not doom their claim that the law deprives them of a s. 7 Charter right.

There is no conflict between saying that a federal law is validly adopted under s. 91 of the Constitution Act, 1867 , and that the same law, in purpose of effect, deprives individuals of rights guaranteed by the Charter . Section 4(1) of the CDSA engages the s. 7 Charter rights of the individual claimants and others like them, but, because the Minister has the power to grant exemptions from s. 4(1), it does so in accordance with the principles of fundamental justice.

Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA . It also directly engages the rights to life, liberty and security of the person of the clients of Insite. In order to make use of the lifesaving and health-protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises.

Prohibiting possession at large engages drug users’ liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person. However, because s. 56 gives the Minister a broad discretion to grant exemptions from the application of the CDSA if, “in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest”, s. 4(1) does not violate s. 7. The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects.

On the facts, the prohibition on trafficking in s. 5(1) of the CDSA does not constitute a limitation of the claimants’ s. 7 rights because trafficking charges would not apply to the activities of Insite staff. The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Minister’s decisions must conform to the Charter . If the Minister’s decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter , then the Minister’s discretion has been exercised unconstitutionally.

In the special circumstances of this case, the Court should go on to consider whether the Minister’s decision violated the clamaints’ Charter rights. The issue is properly before the Court and justice requires that it be considered.

There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather thangovernment action. The ability to make some choices does not negate the trial judge’s findings that addiction is a disease in which thecentral feature is impaired control over the use of the addictive substance. Additionally, the morality of the activity the law regulates isirrelevant at the initial stage of determining whether the law engages a s. 7 right.

Finally, the issue of illegal drug use and addiction is acomplex one which attracts a variety of social, political, scientific and moral reactions. While it is for the relevant governments to makecriminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under theCharter. The issue is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use,but whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter.

The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principlesof fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since heconsidered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, wouldhave prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.

Itthus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister,this limit is not in accordance with the principles of fundamental justice. It is arbitrary regardless of which test for arbitrariness is usedbecause it undermines the very purposes of the CDSA — the protection of health and public safety. It is also grossly disproportionate:during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety andhealth objectives of Canada.

The effect of denying the services of Insite to the population it serves and the correlative increase in the riskof death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniformstance on the possession of narcotics. If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed. The goals of the CDSA are themaintenance and promotion of public health and safety.

The Minister’s decision to refuse the exemption bears no relation to theseobjectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights. As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion anappropriate remedy. In the special circumstances of this case, an order in the nature of mandamus is warranted. The Minister is orderedto grant an exemption to Insite under s. 56 of the CDSA forthwith.

A declaration that the Minister erred in refusing the exemption wouldbe inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite’s currentconstitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate. On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter,aiming to strike the appropriate balance between achieving public health and public safety.

In accordance with the Charter, the Ministermust consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance withthe principles of fundamental justice. Where, as here, a supervised injection site will decrease the risk of death and disease, and there islittle or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption. VANDU’s cross-appeal, which challenges the application of the prohibition on possession to all addicted persons, lacks anadequate basis in the record.

Cases Cited Distinguished: R. v. Parker (2000), (ON CA), 188 D.L.R. (4th) 385; referred to: Canadian WesternBank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21,[2000] 1 S.C.R. 494; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Attorney General of Canada v. Law Society of BritishColumbia, (SCC), [1982] 2 S.C.R. 307; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; BellCanada v. Quebec (Commission de la santé et de la sécurité du travail), (SCC), [1988] 1 S.C.R. 749; Quebec (AttorneyGeneral) v.

Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Derrickson v. Derrickson, (SCC), [1986] 1 S.C.R. 285; Natural Parents v. Superintendent of Child Welfare, (SCC), [1976] 2 S.C.R. 751; R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; Morgentaler v. The Queen, (SCC), [1976] 1 S.C.R. 616; R. v.Morgentaler, (SCC), [1993] 3 S.C.R. 463; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House ofAssembly), (SCC), [1993] 1 S.C.R. 319; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791;Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; R. v.

York, 2005 BCCA 74, 193 C.C.C.(3d) 331; R. v. Spooner (1954), (BC CA), 109 C.C.C. 57; R. v. Hess (No. 1) (1948), (BC CA), 94C.C.C. 48; R. v. Ormerod, (ON CA), [1969] 4 C.C.C. 3; Suresh v. Canada (Minister of Citizenship and Immigration),2002 SCC 1, [2002] 1 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. 974649Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(1). Constitution Act, 1867, ss. 91(27), 92(7), (13), (16).

Constitution Act, 1982, s. 52. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), (3) to (6), 5(1), 10(1), 55, 56. Criminal Code, R.S.C. 1985, c. C-46, s. 4(3). Authors Cited Canada. Health Canada. Vancouver’s INSITE service and other Supervised injection sites: What has been learned from research? —Final report of the Expert Advisory Committee, March 31, 2008 (online: http://www.hc-sc.gc.ca/ahc-asc/pubs/_sites-lieux/insite/index-

eng.php). Canada. House of Commons. Evidence of the Standing Committee on Health , No. 032, 2nd Sess., 39th Parl., May 29, 2008 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=3529880&Language=E&Mode=1&Parl=39&Ses=2). APPEAL and CROSS-APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Huddart and D. Smith JJ.A.), 2010 BCCA 15 , 100 B.C.L.R. (4th) 269, 314 D.L.R. (4th) 209, 250 C.C.C. (3d) 443, 207 C.R.R. (2d) 232, [2010] 2 W.W.R. 575, 281 B.C.A.C. 161, 475 W.A.C. 161, [2010] B.C.J.

No. 57 (QL), 2010 CarswellBC 50, affirming the decisions of Pitfield J., 2008 BCSC 661 , 85 B.C.L.R. (4th) 89, 293 D.L.R. (4th) 392, 173 C.R.R. (2d) 82, [2009] 3 W.W.R. 450, [2008] B.C.J. No. 951 (QL), 2008 CarswellBC 1043, and 2008 BCSC 1453 , 91 B.C.L.R. (4th) 389, 302 D.L.R. (4th) 740, [2009] 3 W.W.R. 494, [2008] B.C.J. No. 2057 (QL), 2008 CarswellBC 2300. Appeal and cross-appeal dismissed. Robert J. Frater and W. Paul Riley , for the appellants/respondents on cross-appeal. Joseph J. Arvay , Q.C. , Monique Pongracic-Speier , Scott E. Bernstein and Jeffrey W.

Beedell , for the respondents PHS Community Services Society, Dean Edward Wilson and Shelly Tomic. Craig E. Jones and Karrie Wolfe , for the respondent the Attorney General of British Columbia. John W. Conroy , Q.C. , and Stephen J. Mulhall , Q.C. , for the respondent/appellant on cross-appeal. Hugo Jean , for the intervener the Attorney General of Quebec. Andrew I. Nathanson and Brook Greenberg , for the intervener the Dr. Peter AIDS Foundation. Sheila M. Tucker , for the intervener the Vancouver Coastal Health Authority. Paul F.

Monahan and Antonio Di Domenico , for the intervener the Canadian Civil Liberties Association. Michael A. Feder , Angela M. Juba and Louis Letellier de St-Just , for the interveners the Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal. Rahool P. Agarwal , John M. Picone and Michael Kotrly , for the interveners the Canadian Nurses Association, the Registered Nurses’ Association of Ontario and the Association of Registered Nurses of British Columbia. Owen M. Rees and Fredrick Schumann , for the intervener the Canadian Public Health Association. Guy J.

Pratte , Nadia Effendi and Jean Nelson , for the intervener the Canadian Medical Association. Ryan D. W. Dalziel and Thomas J. Moran , for the intervener the British Columbia Civil Liberties Association. Marjorie Brown , for the intervener the British Columbia Nurses’ Union. Michael A. Chambers , for the intervener REAL Women of Canada. The judgment of the Court was delivered by [ 1 ] The Chief Justice — Since 2003, the Insite safe injection facility has provided medical services to intravenous drug users in the Downtown Eastside of Vancouver (“DTES”).

Local, provincial and federal authorities came together to create a legal framework for a safe injection facility in which clients could inject drugs under medical supervision without fear of arrest and prosecution. Insite was widely hailed as an effective response to the catastrophic spread of infectious diseases such as HIV/AIDS and hepatitis C, and the high rate of deaths from drug overdoses in the DTES. [ 2 ] In 2008, the federal government failed to extend Insite’s exemption from the operation of criminal laws in the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”).

Faced with the threat that Insite would have to stop offering services, the claimants brought an action for declarations that the CDSA is inapplicable to Insite and that its application to Insite resulted in a violation of the claimants’ s. 7 rights under the Canadian Charter of Rights and Freedoms , or, in the alternative, that the federal Minister of Health, in refusing to grant an extension of Insite’s exemption, had violated the claimants’ s. 7 rights. [ 3 ] The question in this appeal is whether Insite is exempt from the federal criminal laws that prohibit the possession and trafficking of controlled substances, either because Insite is a health facility within the exclusive jurisdiction of the Province, or because the application of the criminal law would violate the Charter .

For the reasons that follow, we conclude that the CDSA is applicable to Insite, and that the scheme of the CDSA conforms to the Charter . However, the actions of the federal Minister of Health in refusing to extend Insite’s exemption under s. 56 of the CDSA are in violation of s. 7 of the Charter , and cannot be justified under s. 1 . Accordingly, we order the Minister to grant Insite an extended exemption, and dismiss the appeal. I. Introduction and Background [ 4 ] The DTES is home to some of the poorest and most vulnerable people in Canada.

Its population includes 4,600 intravenous drug users, which is almost half of the intravenous drug users in the city as a whole. This number belies the size of the DTES. It is in fact a very small area, stretching for a few blocks in each direction from its heart at the intersection of Main and Hastings. [ 5 ] There is no single reason for the concentration of intravenous drug users in this urban neighbourhood.

Contributing factors include the presence of several single room occupancy hotels, the de-institutionalization of the mentally ill, the effect of drug enforcement policies over the years, and the availability of illicit narcotics at street level.

[ 6 ] The injection drug use problem of the DTES is not hidden. At any given time of day drug transactions can be witnessed in the open air on the very steps of the historic Carnegie Community Centre at Main and Hastings. In alleys steps away, addicts tie rubber bands around their arms to find veins in which to inject heroin and cocaine, or smoke crack from glass pipes. [ 7 ] The residents of the DTES who are intravenous drug users have diverse origins and personal histories, yet familiar themes emerge.

Many have histories of physical and sexual abuse as children, family histories of drug abuse, early exposure to serious drug use, and mental illness. Many injection drug users in the DTES have been addicted to heroin for decades, and have been in and out of treatment programmes for years. Many use multiple substances, and suffer from alcoholism. Some engage in street-level survival sex work in order to support their addictions. It should be clear from the above that these people are not engaged in recreational drug use: they are addicted.

Injection drug use is both an effect and a cause of a life that is a struggle on a day to day basis. [ 8 ] While some affordable housing is available in the DTES, living conditions there would shock many Canadians. The DTES is one of the few places where Vancouver’s poorest people, crippled by disability and addiction, can afford to live. Twenty percent of its population is homeless. Of those who are not homeless, many live in squalid conditions in single-room occupancy hotels. Residents of single-room occupancy hotels live with little in the way of security, privacy or hygienic facilities.

The residents of one building often have to share a single bathroom. Single-room occupancy hotels are commonly infested with bedbugs and rats. Existence is bleak. [ 9 ] A survey of approximately 1,000 drug users living in the DTES was presented to the federal Minister of Health in a 2008 report ( Vancouver’s INSITE service and other Supervised injection sites: What has been learned from research? — Final report of the Expert Advisory Committee , March 31, 2008 (online)), and summarized by the trial judge at para. 16 of his reasons ( 2008 BCSC 661 , 85 B.C.L.R. (4th) 89).

Generally, he found that: • those surveyed had been injecting drugs for an average of 15 years; • the majority (51%) inject heroin and 32% inject cocaine; • 87% are infected with hepatitis C virus (HCV) and 17% with human immunodeficiency virus (HIV); • 18% are Aboriginal; • 20% are homeless and many more live in single resident rooms; • 80% have been incarcerated; • 38% are involved in the sex trade; • 21% are using methadone; and • 59% reported a non-fatal overdose in their lifetime. [ 10 ] For injection drug users, the nature of addiction makes for a desperate and dangerous existence.

Aside from the dangers of the drugs themselves, addicts are vulnerable to a host of other life-threatening practices. Although many users are educated about safe practices, the need for an immediate fix or the fear of police discovering and confiscating drugs can override even ingrained safety habits. Addicts share needles, inject hurriedly in alleyways and dissolve heroin in dirty puddle water before injecting it into their veins. In these back alleyways, users who overdose are often alone and far from medical help. Shared needles transmit HIV and hepatitis C. Unsanitary conditions result in infections.

Missing a vein in the rush to inject can mean the development of abscesses. Not taking adequate time to prepare can result in mistakes in measuring proper amounts of the substance being injected. It is not uncommon for injection drug users to develop dangerous infections or endocarditis.

These dangers are exacerbated by the fact that injection drug users are a historically marginalized population that has been difficult to bring within the reach of health care providers. [ 11 ] Although injection drug use is by no means a new problem in Vancouver, or for that matter in the rest of the country, in the early 1990s it reached crisis levels in the DTES. In just six years, the number of annual deaths from overdose in Vancouver increased exponentially, from 16 in 1987 to 200 in 1993.

In 1996, Vancouver’s medical health officer reported an increase in infectious diseases in the DTES, including HIV/AIDS, hepatitis A, B and C, skin and blood-borne infections, endocarditis and septicaemia, as well as fatal and non-fatal overdoses. All were related to injection drug use. The same year, the British Columbia Centre for Excellence in HIV/AIDS reported an HIV/AIDS epidemic in the neighbourhood. The following year, an epidemic of hepatitis C was reported.

A public health emergency was declared in the DTES in September 1997. [ 12 ] The decision to implement a supervised safe injection site was the result of years of research, planning, and intergovernmental cooperation. The process of research and planning is described in the affidavit of Heather Hay, the Director of Addictions, HIV/AIDS and Aboriginal Health Services for the Vancouver Coastal Health Authority (“VCHA”). In her affidavit, Ms. Hay describes the response of the various government agencies to the crisis in the DTES.

From the beginning, health authorities recognized that creative solutions would be required to address the needs of the difficult-to-reach population of the DTES. [ 13 ] In 1997, the Vancouver/Richmond Health Board adopted the “Vancouver Downtown Eastside HIV/AIDS Action Plan”, which introduced harm reduction strategies such as the creation of the Vancouver Area Network of Drug Users (VANDU) (“VANDU”) to provide peer outreach and support, and the establishment of needle exchanges.

In 1999, VCHA issued a report identifying injection drug use as the root of the health concerns in the DTES, and recommended an integrated health approach that had as its focus harm reduction: expansion of primary care services, the development of creative interventions to address communicable disease, the development of a scheme of drug and alcohol services including harm reduction strategies, and improved access to stable housing.

In accordance with this plan, new low threshold health clinics were opened in the DTES, needle exchange services were expanded, methadone service was increased, and access to antiretroviral drugs was improved.

[ 14 ] In April 2002, the Province transferred responsibility for adult alcohol and drug services to the regional health authorities, allowing the VCHA to integrate its approach to addictions treatment. In September 2002, the VCHA proposed a new addictions plan for Vancouver that adopted harm reduction strategies and moved away from traditional abstinence-based programmes. The plan envisioned a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply at the exit point when they quit drugs for good.

The proposed plan included supervised drug consumption facilities. [ 15 ] The notion of a supervised injection facility, although politically contentious in North America, has precedent elsewhere. Supervised injection sites have been used with success to address health issues associated with injection drug use in other parts of the world. Safe injection sites operate in 70 cities in 6 European countries, and in Sydney, Australia.

These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services. Successful treatment requires acknowledgment of the difficulties of reaching a marginalized population with complex mental, physical, and emotional health issues. [ 16 ] Ms. Hay prepared a proposal for a supervised injection site, which received the approval of the Board of the VCHA in March 2003. In May 2003, the proposal was submitted to Health Canada for consideration.

Federal approval was required in order to obtain an exemption from the prohibitions on possession and trafficking of controlled substances in the CDSA . The scheme of the CDSA provides for such exemptions, at the discretion of the Minister of Health, under s. 56 . Health Canada gave final approval for conditional exemption of the facility from possession and trafficking laws as a pilot research project under s. 56 of the CDSA on September 12, 2003. [ 17 ] Insite opened its doors on September 21, 2003. It was North America’s first government-sanctioned safe injection facility.

It has operated constantly since then, seven days a week, 18 hours a day. Its operations are described at paras. 71-77 of the trial judge’s reasons: Insite is located on East Hastings Street between Carrall and Main Streets. It is open daily from 10:00 a.m. to 4:00 a.m. the following day. The facility is known to DTES residents. Police refer addicts to it. Insite operates under an extensive and detailed operating protocol approved by Health Canada. It is staffed by a combination of PHS, Health Authority and community workers.

Users must be 16 years of age or over, must sign a user agreement, release and consent form, must agree to adhere to a code of conduct, and cannot be accompanied by children. Users must register at each visit to the site and each is asked to identify the substance that will be injected. No substances are provided by staff. It goes without saying that the substances brought to Insite by users have been obtained from a trafficker in an illegal transaction. Users are obviously in possession of their substance en route to Insite.

Approximately 60% of the drugs injected are opioids, of which two-thirds are heroin and one-third morphine or hydromorphone. Approximately 40% of injected drugs are stimulants, approximately 90% of which are cocaine and 10%, methamphetamine. Insite has 12 injection bays. Users are provided with clean injection equipment which is the only equipment that can be used at the site. Users are monitored by staff during injection. Nurses and paramedical staff provide treatment in the event of overdose and contact a physician and the ambulance service as necessary. Overdoses vary in severity and treatment.

The protocol permits pregnant women to use Insite. They are required to undergo a more intensive assessment than others before being allowed access to the injection room. Those women are also referred to a clinic and child daycare facilities directly managed by the Health Authority, which provides pre- and post-natal care to pregnant women who are actively using illegal substances. Users who have completed an injection are assessed by staff. They may be discharged to the “chill-out” lounge or treated by a nurse in the treatment room for injection-related conditions.

Users requiring extensive or ongoing care are referred to the closest primary care facility, either the Downtown Community Health Centre or the Pender Clinic. Staff and support workers interact with users at Insite on a one-to-one basis. Users are provided with health care information, counselling and referrals to Health Authority and other service providers.

Records indicate that in 2005, 2006 and 2007, staff made 2,270, 1,828, and 2,269 referrals, respectively, to community clinic, hospital emergency, outpatient medical mental health, emergency shelter and community services; and to addiction counselling, housing, withdrawal, methadone treatment, drug recovery, and miscellaneous other services. Since the fall of 2007, the staff has also been able to refer users to “Onsite”, a detox centre located above Insite which permits Insite to provide detox on demand.

Onsite is a drug free environment supported by physicians who are addiction specialists and general practitioners, nurses and peers. Users may also be referred to residential detox and additional treatment services. [ 18 ] This passage describes a strictly regulated health facility. It operates under the authority of the VCHA, and its personnel are guided by strict policies and procedures. It does not provide drugs to its clients, who must check in, must sign a waiver, and are closely monitored during and after injection.

There are guidelines for staff to follow in the disposal of used injection equipment and the containment of leftover drugs. [ 19 ] Insite was the product of cooperative federalism. Local, provincial and federal authorities combined their efforts to create it. It was launched as an experiment. The experiment has proven successful. Insite has saved lives and improved health. And it did those things without increasing the incidence of drug use and crime in the surrounding area. The Vancouver police support Insite. The city and provincial government want it to stay open.

But continuing the Insite project will be impossible without a federal government exemption from the laws criminalizing possession of prohibited substances at Insite. [ 20 ] The federal CDSA is the federal government’s response to the problem of illegal drug use across Canada. By way of the CDSA , the federal government has chosen an approach that favours a blanket prohibition on possession and trafficking in illegal drugs. At the same time, Parliament has recognized that there are good reasons to allow the use of illegal substances in certain circumstances.

The federal Minister of Health can issue exemptions for medical and scientific purposes under s. 56 of the CDSA .

Section 55 of the CDSA allows for the Governor in Council to make regulations for the medical, scientific and industrial use of illegal substances. In this manner, Parliament has attempted to balance the two competing interests of public safety and public health. In 2008, the federal exemption for Insite from the operation of the criminal drug laws expired. This action was started in an effort to keep Insite open. II. Procedural History [ 21 ] This action was brought by Dean Edward Wilson, Shelly Tomic, PHS Community Services (“PHS”), and VANDU.

PHS is a non-profit organization that oversees the operation of Insite. VANDU is a non-profit society that advocates on behalf of drug users. [ 22 ] The individual claimants, Mr. Wilson and Ms. Tomic, are residents of the DTES and are (or have been) clients of Insite. Mr. Wilson is 55 years old and has been injecting heroin since he was 13. He has been injecting cocaine for almost as long. His drug use has had serious health consequences: he is hepatitis C positive, and is frequently ill. He has tried to stop or reduce his drug use many times, but has been unable to go completely clean. Mr.

Wilson has translated his own experiences into a positive role in helping to educate and improve the health situation of other drug users in the community. He was the first person to use Insite’s facilities, and continues to go back when he relapses into heroin use. He considers Insite to be an important resource for injection drug users in the DTES, and believes that he has reduced his own risk of serious overdose by injecting there. Most importantly, he says, “Insite has given dignity to people who have to struggle to have their humanity recognized” (A.R., vol. II, at p. 44). [ 23 ] Ms.

Tomic is 43 years old, and was born addicted to speed. She began injecting cocaine when she was 19 or 20, heroin when she was 26 or 27. She has turned to sex work at times to support her addiction. Like Mr. Wilson, she is hepatitis C positive. She is treating her addiction with methadone, but occasionally relapses and uses heroin. Ms. Tomic started injecting at Insite as soon as it opened in 2003, and immediately noticed that she stopped getting abscesses when she injected there. She also credits Insite with getting her started on methadone treatment. Like Mr.

Wilson, she attests to the psychological and emotional support that Insite and its staff provide, and its role in keeping her on the path to recovery. [ 24 ] Ms. Tomic, Mr. Wilson and PHS seek a declaration that ss. 4(1) and 5(1) of the CDSA are constitutionally inapplicable to Insite, because as a health facility it is under exclusive provincial control, making an exemption under s. 56 unnecessary.

They also allege that the application of the criminal prohibitions in the CDSA to Insite violates their constitutional rights under s. 7 of the Charter , and to this extent are invalid under s. 52 of the Constitution Act, 1982 . In the alternative, they seek a declaration that any decision of the federal Minister of Health to refuse to grant or extend the exemption constitutes a violation of the individual plaintiffs’ s. 7 Charter rights. [ 25 ] At this Court, VANDU supports the submissions of Ms. Tomic, Mr.

Wilson and PHS and seeks a declaration that the offence of possession of all addictive drugs violates s. 7 of the Charter . A. British Columbia Supreme Court, 2008 BCSC 661 , 85 B.C.L.R. (4th) 89 [ 26 ] The action was brought by way of a

summary trial before Pitfield J. at the British Columbia Supreme Court in May 2008, shortly before the federal exemption was set to expire. The evidence was presented in affidavit form. [ 27 ] Pitfield J. recognized that there are competing approaches to dealing with addiction, and limited his findings of fact to what was necessary to decide the matter before him. His factual findings are key to this appeal. He summarized those findings at paras. 87-89 of his reasons: . . . 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; and 3. 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[s] 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. [ 28 ] With respect to outcomes, Pitfield J. accepted the findings of the Expert Advisory Committee’s report to the federal Minister of Health with respect to Insite (para. 85).

In its report, the Expert Advisory Committee concluded, inter alia , that: • observations in the period shortly before and after the opening of Insite indicated a reduction in the number of

people injecting in public; • there was no evidence of increases in drug-related loitering, drug dealing or petty crime in the area around Insite; • the local Chinese Business Association reported reductions in crime in the Chinese business district outside theDTES; • police data showed no changes in rates of crime recorded in the DTES; • there was no evidence that Insite increased the relapse rate among injection drug users; and • the cost/benefit analysis was favourable. [29] Pitfield J. rejected VANDU’s application for a declaration that the activities of the staff of Insite did not amount topossession or trafficking.

The question of whether an individual has committed either offence is fact-dependent and not amenable to ajudicial declaration “in the air” (para. 98). [30] Pitfield J. also rejected the claim that Insite was shielded from the application of ss. 4(1) and 5(1) of the CDSA bythe operation of the doctrine of interjurisdictional immunity. He noted this Court’s ambivalence towards the doctrine in recent years andits view that interjurisdictional immunity should only be employed sparingly (para. 118).

In cases of “double aspect” where both levelsof government may regulate the same subject matter, Pitfield J. held that the courts “must strive to give legitimacy to both legislativeinitiatives” (para. 119). The federal and provincial legislation conflicted, with the result that the federal scheme prevailed to the extent ofthe conflict by virtue of the doctrine of federal paramountcy. [31] With respect to the Charter claim, Pitfield J. found that the s. 7 rights of life, liberty, and security of the person wereall engaged by the application of ss. 4(1) and 5(1) of the CDSA to Insite.

Applied to Insite, the impugned provisions of the CDSA did notaccord with the principles of fundamental justice because they arbitrarily prohibited the management of addiction and its associatedrisks. The arbitrariness of the scheme was not cured by s. 56 of the CDSA, because the Minister’s discretion to grant exemptions wasunfettered. Pitfield J. went on to hold that the violation of s. 7 could not be saved under s. 1 of the Charter. Accordingly, he declared ss.4(1) and 5(1) of the CDSA unconstitutional and of no force and effect.

He suspended the declaration of constitutional invalidity andgranted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. B. British Columbia Court of Appeal, 2010 BCCA 15, 100 B.C.L.R. (4th) 269 [32] The British Columbia Court of Appeal upheld the trial judge’s conclusion that Insite should continue to operate freefrom federal drug prohibitions. Rowles J.A., writing for herself and concurring with Huddart J.A., upheld the trial judge’s decision withrespect to the Charter claim, although she would have found the law overbroad, rather than arbitrary.

She agreed with Pitfield J. that theapplication of the CDSA to the activities at Insite would have a grossly disproportionate effect on its clients by denying them access tonecessary health care, with no corresponding benefit either to themselves or to society at large. [33] Rowles J.A. also concurred with the reasons of Huddart J.A., holding that the federal drug laws were inapplicable toInsite by virtue of the doctrine of interjurisdictional immunity. Insite, Huddart J.A. held, is a provincial undertaking created under theprovincial power over hospitals.

The determination of the nature of services to be provided by a hospital, she held, is at the core of thepurpose of the provincial health power, and cannot be undercut by conflicting federal laws.

At para. 162, she wrote: If the federal executive, in exercising or failing to exercise authority granted to it by Parliament, can effectively prohibita form of health care vital to the delivery of a provincial health care program, that means Parliament has an effective veto over provincialhealth care services, to the extent its use of the criminal power can be justified by the potential for harm to public health or safety.

That isjust the sort of intrusion into a provincial domain that constituted an impermissible intrusion into the federal domain in Bell Canada [v.Quebec (Commission de la santé et de la sécurité du travail), (SCC), [1988] 1 S.C.R. 749, at pp. 797-98]. The immunity created, Huddart J.A. held, “would apply only to exempt a health care service considered essential by a provincial agencywith the authority to make that decision under provincial legislation” (para. 167).

She concluded that “[i]f interjurisdictional immunity isnot 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 beapplied to protect exclusive provincial powers” (para. 176). [34] D. Smith J.A. dissented on both the Charter and the division of powers issues. With respect to the Charter, she heldthat although a deprivation of s. 7 rights had been made out, the claimants had not established that the deprivation was not in accordancewith the principles of fundamental justice.

With respect to arbitrariness, she found that “there was no evidence presented to show that theblanket prohibition of possession of illegal drugs is not rationally connected to or is inconsistent with the overall state interest in healthand public safety” (para. 291). Similar conclusions were reached with respect to disproportionality and overbreadth. The claimants“provided no evidence to show that Parliament could prevent increased drug use, addiction, and associated crime by something otherthan a blanket prohibition” (para. 297).

The claimants had provided no evidence upon which the court could conclude that Parliamentcould have achieved its goals of protecting the health and safety of all Canadians from dangerous and addictive drugs by alternative andnarrower legislative means (para. 303). [35] On the division of powers issue, D. Smith J.A. essentially agreed with the trial judge. She reviewed the recentjurisprudence of this Court on interjurisdictional immunity, and concluded that the doctrine was limited to circumstances in whichprevious case law had identified an area of exclusive legislative authority (para. 225).

Accordingly, she concluded that the doctrine ofinterjurisdictional immunity should not apply to the provincial power over health care services and hospitals. III. Questions on Appeal [36] The Attorney General of Canada asks this Court to overturn the Court of Appeal’s holdings on the division of

powers and the Charter . These questions are considered separately below. The first question is whether ss. 4(1) and 5(1) of the CDSA are constitutionally inapplicable to the activities of the staff and clients at Insite by virtue of the division of powers. The second question is whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter , and if so, whether the infringement is justified under s. 1 of the Charter . IV. Statutory and Constitutional Provisions A. The CDSA [ 37 ] The federal government, exercising its criminal law power, has enacted the CDSA .

The CDSA makes it a crime to possess or traffic in illegal drugs across Canada. The CDSA regulates drug possession and trafficking in two complementary ways. [ 38 ] First, the CDSA prohibits possession and trafficking in ss. 4(1) and 5(1) : 4.

(1) Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. . . . 5.

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. [ 39 ] Second, the CDSA empowers the Minister of Health to issue exemptions for medical or scientific reasons, or for any purpose the Minister deems to be in the public interest: 56.

The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. [ 40 ]

Section 55 complements the s. 56 exemption power by giving the Governor in Council the power to make regulations concerning the use and distribution of controlled substances in their permitted applications. [ 41 ] The mechanisms embodied in the CDSA — general prohibitions subject to targeted ministerial exemptions — reflect the dual purpose of the CDSA : the protection of both public safety and public health. This dual purpose is also reflected in the sentencing provision of the CDSA , s. 10(1), which directs that “the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community”. B.

The Constitutional Provisions [ 42 ] Canada has asserted jurisdiction to prohibit the possession and trafficking of illicit drugs by virtue of its power to enact criminal laws under s. 91(27) of the Constitution Act, 1867 : 91. . . . it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, — . . . 27.

The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. [ 43 ] The claimants and the Attorney General of British Columbia submit that Insite is exempt from the prohibitions in the federal CDSA because decisions about health facilities fall within provincial jurisdiction over health under s. 92(7) , (13) and (16) of the Constitution Act, 1867 : 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, — 7.

The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. . . . 13. Property and Civil Rights in the Province. . . . 16. Generally all Matters of a merely local or private Nature in the Province. The Province, exercising these powers, has delegated them to the VCHA, which in turn established Insite. [ 44 ] The claimants also invoke ss. 1 and 7 of the Charter : 1.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

. . . 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice. V. Division of Powers Arguments [45] All the parties accept that apart from its application to provincial health facilities, the CDSA is valid legislation,pursuant to Parliament’s criminal law power, s. 91(27).

The issue before the Court is whether, as a result of the division of powersbetween the federal government and the provinces, Insite is not bound by the valid criminal laws that prohibit the possession andtrafficking of controlled substances.

The parties and interveners have advanced three arguments in support of this position. [46] First, the Attorney General of Quebec argues that the impugned provisions of the CDSA are ultra vires insofar asInsite is concerned because the federal criminal law power cannot interfere with the regulation of provincial health facilities. [47] Second, the Attorney General of British Columbia argues that the CDSA should be read as avoiding interfering withthe Province’s jurisdiction over health policy.

When the CDSA is interpreted in this way, British Columbia argues that any institutionthat a province identifies as serving the public interest must be exempted from the criminal prohibitions of possession and trafficking. [48] Third, the Attorney General of British Columbia, Mr. Wilson, Ms. Tomic and PHS argue that the doctrine ofinterjurisdictional immunity should apply to shield provincial decisions about medical treatments from interference by the federalgovernment. [49] I consider each of these arguments below. A.

Are the Impugned Provisions of the CDSA Ultra Vires? [50] The Attorney General of Quebec submits that ss. 4(1) and 5(1) of the CDSA are partially invalid because theyexceed Parliament’s jurisdiction to enact criminal laws under s. 91(27) of the Constitution Act, 1867. Quebec argues that while thefederal government is permitted to criminalize the possession and trafficking of illicit drugs in many contexts, prohibiting these drugs ina medical context is ultra vires the federal government.

Quebec acknowledges that its approach might appear novel. [51] This argument appears to confuse the constitutional validity of a law with the applicability of a valid law. Whendetermining whether a law is valid under the division of powers, the Court looks to the dominant purpose of the law. The fact that thelaw at issue in this case has the incidental effect of regulating provincial health institutions does not mean that it is constitutionallyinvalid. A valid federal law may have incidental impacts on provincial matters: Canadian Western Bank v.

Alberta, 2007 SCC 22,[2007] 2 S.C.R. 3, at para. 28; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494,at para. 23. It is therefore untenable to argue, as I understand Quebec to do, that a valid federal law becomes invalid if it affects aprovincial subject, in this case health. [52] In pith and substance, the impugned provisions of the CDSA are valid exercises of the federal criminal law power.At trial, PHS conceded that ss. 4(1) and 5(1) of the CDSA were “concerned with suppressing the availability of drugs that have harmfuleffects on human health” (para. 112).

The protection of public health and safety from the effects of addictive drugs is a valid criminallaw purpose: R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 77-78. Additionally, the prohibitions in ss. 4(1) and 5(1)are backed by penalties. Since none of the parties have argued that the impugned provisions colourably intrude on provincialjurisdiction, I conclude that they are valid exercises of the criminal law power. B.

Should Sections 4(1) and 5(1) Be Read as Not Applying to Insite? [53] The Attorney General of British Columbia argues that ss. 4(1) and 5(1) of the CDSA should be read as not applyingto Insite. Relying on this Court’s decision in Attorney General of Canada v. Law Society of British Columbia, (SCC),[1982] 2 S.C.R. 307 (“Jabour”), British Columbia argues that federal criminal laws are “implicitly constrained to operate consistentlywith the public interest” (AGBC Factum, at para. 47).

It argues that once a province establishes that a particular activity (in this case theprovision of health services through Insite) serves the public interest, that activity is exempt from the operation of federal criminal laws. Since the Province has authorized the operation of Insite in the public interest, the prohibitions in ss. 4(1) and 5(1) of the CDSA do notapply to it. [54] Jabour does not establish that federal criminal laws cease to apply if their application is inconsistent with the publicinterest, as defined by a province.

The issue before the Court in Jabour was whether s. 32 of the Combines Investigation Act, R.S.C.1970, c. C-23, which only prohibited activities that harmed the public interest, interfered with the operation of a provincial law society. The Court, per Estey J., held that “[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, suchan

interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the twostatutes” (p. 356). [55] The decision in Jabour rested on the fact that the prohibition in the Combines Investigation Act extended only toactivities that harmed the public interest. Jabour was about interpreting the federal statute. It did not establish a general rule thatprovincial programmes designed to advance the public interest are always exempt from the operation of the criminal law. The Courtmade this point in Garland v.

Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, per Iacobucci J., who wrote that the principle ofinterpretation adopted in Jabour would only apply where Parliament has “expressly or by necessary implication . . . granted leeway tothose acting pursuant to a valid provincial regulatory scheme” (para. 77). [56] The wording of s. 56 of the CDSA makes clear that the federal government did not grant any leeway to the provinces.Section 56 establishes that the federal Minister may grant exemptions “on such terms and conditions as the Minister deems necessary . . .if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest”.

The federal Minister alone has the power to determine if an activity should be exempt from the prohibitions in the CDSA. Action byprovincial authorities is neither contemplated nor authorized by the CDSA. To put it another way, the CDSA grants no leeway to theprovinces, and cannot be interpreted as exempting the provinces from its provisions. C. Interjurisdictional Immunity [57] British Columbia, Mr. Wilson, Ms. Tomic and PHS argue that Insite is shielded from the operation of the CDSA byvirtue of the doctrine of interjurisdictional immunity.

The argument, accepted by the majority of the Court of Appeal, is that decisionsabout what treatment may be offered in provincial health facilities lie at the core of the provincial jurisdiction in the area of health care,and are therefore protected from federal intrusions by the doctrine of interjurisdictional immunity.

Accordingly, they say that ss. 4(1)and 5(1) of the CDSA are of no force or effect to the extent that they impair the Province’s ability to make decisions about health careservices. [58] The doctrine of interjurisdictional immunity is premised on the idea that there is a “basic, minimum and unassailablecontent” to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other levelof government: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), (SCC), [1988] 1 S.C.R.749, at p. 839.

In cases where interjurisdictional immunity is found to apply, the law enacted by the other level of government remainsvalid, but has no application with regard to the identified “core”. [59] It is not necessary to show that there is a conflict between the laws adopted by the two levels of government forinterjurisdictional immunity to apply: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2S.C.R. 536, at para. 52 (“COPA”).

Indeed, it is not even necessary for the government benefiting from the immunity to be exercising itsexclusive authority: Canadian Western Bank, at para. 34. [60] The doctrine of interjurisdictional immunity has been applied to circumscribed areas of activity referred to in thecases as undertakings. These include aviation, ports, interprovincial rail and federal communications works. The doctrine has also beenapplied to federal things like Aboriginal land, and federally regulated persons such as Aboriginal peoples: Derrickson v. Derrickson, (SCC), [1986] 1 S.C.R. 285; Natural Parents v.

Superintendent of Child Welfare, (SCC), [1976]2 S.C.R. 751; see also Canadian Western Bank, at para. 41. It has never been applied to a broad and amorphous area of jurisdiction. [61] Recent jurisprudence has tended to confine the doctrine of interjurisdictional immunity.

In Canadian Western Bank,the majority stated that “although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, weintend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of theappellants to turn it into a doctrine of first recourse in a division of powers dispute” (para. 47).

More recently, in COPA, the majorityheld that the doctrine “has not been removed from the federalism analysis”, but rather remains “in a form constrained by principle andprecedent” (para. 58). [62] This caution reflects three related concerns. First, the doctrine of interjurisdictional immunity is in tension with thedominant approach that permits concurrent federal and provincial legislation with respect to a matter, provided the legislation is directedat a legitimate federal or provincial aspect, as the case may be.

This model of federalism recognizes that in practice there is significantoverlap between the federal and provincial areas of jurisdiction, and provides that both governments should be permitted to legislate fortheir own valid purposes in these areas of overlap. [63] Second, the doctrine is in tension with the emergent practice of cooperative federalism, which increasingly featuresinterlocking federal and provincial legislative schemes.

In the spirit of cooperative federalism, courts “should avoid blocking theapplication of measures which are taken to be enacted in furtherance of the public interest”: Canadian Western Bank, at para. 37. Wherepossible, courts should allow both levels of government to jointly regulate areas that fall within their jurisdiction: Canadian WesternBank, at para. 37. [64] Third, the doctrine of interjurisdictional immunity may overshoot the federal or provincial power in which it isgrounded and create legislative “no go” zones where neither level of government regulates.

Since it is not necessary for the governmentbenefiting from the immunity to actually regulate in the field in question, extension of the doctrine of interjurisdictional immunity riskscreating “legal vacuums”: Canadian Western Bank, at para. 44. [65] While the doctrine of interjurisdictional immunity has been narrowed, it has not been abolished. Predictability,important to the proper functioning of the division of powers, requires recognition of previously established exclusive cores of power:Canadian Western Bank, at paras. 23-24.

Nor, in principle, is the doctrine confined to federal powers: Canadian Western Bank. However, in areas of overlapping jurisdiction, the modern trend is to strike a balance between the federal and provincial governments,through the application of pith and substance analysis and a restrained application of federal paramountcy.

Therefore, before applyingthe doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on someother basis. [66] The question in this case is whether the delivery of health care services constitutes a protected core of the provincialpower over health care in s. 92(7), (13) and (16) of the Constitution Act, 1867, and is therefore immune from federal interference. Iconclude that it is not, for three related reasons. [67] First, the proposed core of the provincial power over health has never been recognized in the jurisprudence.

This isnot determinative since new areas of exclusive jurisdiction could in theory be identified in the future. However, as noted above, courtsare reluctant to identify new areas where interjurisdictional immunity applies. [68] Second, and more importantly, the claimants in this case have failed to identify a delineated “core” of an exclusivelyprovincial power. The provincial health power is broad and extensive. It extends to thousands of activities and to a host of differentvenues. Such a vast core would sit ill with the restrained application of the doctrine called for by the jurisprudence.

To complicate thematter, Parliament has power to legislate with respect to federal matters, notably criminal law, that touch on health. For instance, it has

historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as “socially undesirable” behaviour: R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; Morgentaler v. The Queen, (SCC), [1976] 1 S.C.R. 616; R. v.Morgentaler, (SCC), [1993] 3 S.C.R. 463. The federal role in the domain of health makes it impossible to preciselydefine what falls in or out of the proposed provincial “core”.

Overlapping federal jurisdiction and the sheer size and diversity ofprovincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federallegislation may not tread. [69] Third, application of interjurisdictional immunity to a protected core of the provincial health power has the potentialto create legal vacuums. Excluding the federal criminal law power from a protected provincial core power would mean that Parliamentcould not legislate on controversial medical procedures, such as human cloning or euthanasia.

The provinces might choose not tolegislate in these areas, and indeed might not have the power to do so. The result might be a legislative vacuum, inimical to the veryconcept of the division of powers. [70] In

summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is intension with the evolution of Canadian constitutional

interpretation towards the more flexible concepts of double aspect and cooperativefederalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine isneither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government. D. Paramountcy [71] In the case of a conflict between a federal law and a provincial law, the doctrine of paramountcy means that thefederal law prevails to the extent of the inconsistency: Canadian Western Bank, at para. 69.

While the Attorney General of Canada didnot rely on this principle, it merits mention. The doctrine of federal paramountcy applies when there is operational conflict between afederal and provincial law, or when a provincial law would frustrate the purpose of a federal law. [72] It can be argued that, absent an exemption, the Insite program involves an operational conflict with the federalprohibition on possession of illegal drugs under the CDSA. A detailed analysis of paramountcy is unnecessary in this case, however.

The complainants concede that if interjurisdictional immunity does not apply, the federal prohibitions on drugs in the CDSA apply toInsite, whether by operation of paramountcy or by the requirement that the VCHA exercise its delegated authority within the limits of thecriminal law. Indeed, the claimants’ Charter arguments are premised on the proposition that these prohibitions, absent an exemption,effectively prevent them from operating Insite.

It is common ground that absent a constitutional immunity, the federal law constrainsoperation at Insite and trumps any provincial legislation or policies that conflict with it. It is therefore unnecessary to inquire intowhether the conditions for the application of the doctrine of paramountcy and ouster of the provincial scheme are present. E. Conclusion on Division of Powers [73] None of the arguments raised against the constitutional validity or applicability of the CDSA withstand scrutiny.

Iconclude that the criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite underthe division of powers. VI. Charter Claims [74] Three Charter claims fall for consideration. [75] Ms. Tomic, Mr.

Wilson and PHS argue that ss. 4(1) and 5(1) of the CDSA, which prohibit possession and traffickingrespectively, are invalid because they limit the claimants’ s. 7 rights to life, liberty and security of the person and are not in accordancewith the principles of fundamental justice. [76] In the alternative, they assert that their s. 7 rights have been infringed by the Minister’s refusal to extend theexemption for Insite from the application of the federal drug laws. [77] Finally, VANDU submits that the CDSA’s prohibition on possession of drugs limits the s. 7 Charter rights of alladdicted drug users everywhere, not just at Insite. [78] Before addressing these arguments, it is necessary to consider Canada’s preliminary submission that if theclaimants’ division of powers arguments fail, their Charter arguments must also fail.

A. Relationship Between the Division of Powers Claim and the Charter Claims [79] Canada submits that if this Court concludes that the CDSA is valid and applies to Insite under the division of powers,the Charter arguments must also fail. [80] Canada asserts that if the CDSA is valid federal legislation, then the Province has no legal jurisdiction to operateInsite without federal approval. The idea appears to be that absent a federal exemption, the provincial government does not have thelegal authority to provide the safe injection service.

It is that constitutional inability, not the CDSA, that threatens Insite’s delivery ofhealth services. Therefore, the CDSA cannot be said to deprive the claimants of any right. Canada also supports its preliminaryobjection as “a novel variation on the rule that ‘one part of the Constitution cannot be abrogated or diminished by another part of theConstitution’” (A.F., at para. 93, citing New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, at p. 373).

The idea here seems to be that if the CDSA is valid and applicable, upholdingCharter claims would amount to an internal contradiction within the Constitution. [81] The answer to the first part of this argument is that the Province does in fact have the constitutional power toestablish Insite without federal approval. No one argues that the provision of the health services offered by Insite is not within theprovincial health power. The claimants seek a federal exemption from operation of the CDSA, not because this is necessary to validate

the Province’s decision to operate Insite as a health service, but because it is necessary as a practical matter to implement the decision. Insite cannot operate without a federal exemption, not for lack of constitutional powers in the Province, but for the practical reason that neither workers nor clients will come to the facility, making it effectively impossible to offer the proposed health services.

Thus, the premise of Canada’s argument — that the Province has no legal jurisdiction to operate Insite without federal approval — fails. [ 82 ] More broadly, the principle that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution is of no assistance in dealing with division of powers issues on the one hand, and Charter issues on the other. There is no conflict between saying a federal law is validly adopted under s. 91 of the Constitution Act, 1867 , and asserting that the same law, in purpose or effect, deprives individuals of rights guaranteed by the Charter .

The Charter applies to all valid federal and provincial laws. Indeed, if the CDSA were ultra vires the federal government, there would be no law to which the Charter could apply. Laws must conform to the constitutional division of powers and to the Charter . [ 83 ] I conclude that the claimants’ lack of success on the division of powers issues does not doom their claim that the law deprives them of a s. 7 Charter right. Any deprivation of s. 7 rights arises, not because the province is constitutionally unable to establish Insite, but because of the application of ss. 4(1) and 5(1) of the CDSA to Insite. B.

Challenge to Sections 4(1) and 5(1) of the CDSA [ 84 ] The inquiry into the validity of legislation under s. 7 of the Charter requires us to ask: (1) whether ss. 4(1) or 5(1) of the CDSA limit the right of the claimants to life, liberty or security of the person (i.e. the “deprivation” or “engagement” issue); and (2) if so, whether that limitation is in accordance with the principles of fundamental justice: Chaoulli v. Quebec (Attorney General) , 2005 SCC 35 , [2005] 1 S.C.R. 791, at para. 109 , per McLachlin C.J. and Major J., Malmo-Levine , at para. 83 .

(1) Are the Claimants’

Section 7 Interests Engaged by the Prohibition on Possession of Drugs in Section 4(1) of the CDSA ? [ 85 ]

Section 7 of the Charter states that everyone “has the right to life, liberty and security of the person”. A law that interferes with any of these rights may be said to “engage” s. 7 of the Charter or constitute a “deprivation” under s. 7. [ 86 ] I begin with the offence of possession of prohibited drugs under s. 4(1) of the CDSA . The question is whether it engages or limits the s. 7 rights of Insite staff and/or clients. [ 87 ] I turn first to the argument that s. 7 is engaged because of the impact of s. 4(1) of the CDSA on staff.

The argument is that the prohibition on possession of proscribed drugs on Insite’s premises engages the liberty interests of the staff of Insite, because it exposes them to the threat of being imprisoned for carrying out their duties. This constitutes a direct limit on the s. 7 rights of staff. [ 88 ] T he actions of the staff at Insite could be construed as the offence of possession. The definition of possession of prohibited drugs under the CDSA is broad enough to encompass the activities of staff at Insite. “Possession” in the CDSA is defined with reference to s. 4(3) of the Criminal Code , R.S.C. 1985, c.

C-46, which provides: 4 . . . .

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 89 ] I conclude that, without a s. 56 exemption, s. 4(1) applies to the staff of Insite because, by operating the premises — opening the doors and welcoming prohibited drugs inside — the staff responsible for the centre may be “in possession” of drugs brought in by clients.

They have knowledge of the presence of drugs, and consent to their presence in the facility over which they have control. [ 90 ] The evidence is clear that staff do not buy drugs or assist with their injection. Yet their minimal involvement with clients’ drugs may bring them within the legal concept of illegal possession of drugs, contrary to s. 4(1) of the CDSA . As such, the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA engages the liberty interests of staff: Malmo-Levine , at para. 84 .

The threat to the liberty of the staff in turn impacts on the s. 7 rights of clients who seek the health services provided by Insite. [ 91 ] The record supports the conclusion that, w ithout an exemption from the application of the CDSA , the health professionals who provide the supervised services at Insite will be unable to offer medical supervision and counselling to Insite’s clients. This deprives the clients of Insite of potentially lifesaving medical care, thus engaging their rights to life and security of the person .

The result is that the limits on the s. 7 rights of staff will in turn result in limits on the s. 7 rights of clients. [ 92 ] The application of s. 4(1) to the clients of Insite also directly engages their s. 7 interests. In order to make use of the lifesaving and health-protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises.

To prohibit possession by drug users anywhere engages their liberty interests; to prohibit possession at Insite engages their rights to life and to security of the person. [ 93 ] The trial judge made crucial findings of fact that support the conclusion that denial of access to the health services

provided at Insite violates its clients’ s. 7 rights to

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