SCC Rules on Vancouver's Safe Injection Site

The Supreme Court of Canada released its judgement in PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44, a case concerning Insite, a safe injection site in Vancouver's Downtown East Side area.

Since 2003, Insite had provided a facility for drug addicts to inject drugs under medical supervision. The facility operated through successive ministerial exceptions to sections of the Controlled Drugs and Substances Act (“CDSA”) that deal with possession (s. 4(1)) and trafficking (s. 5(1)). In 2008, the federal Minister of Health declined to extend this exemption.

Two clients of Insite (Dean Wilson and Shelly Tomic), along with two community groups (PHS Community Services Society – which also operates Insite in partnership with the Vancouver Coastal Health Authority – and Vancouver Area Network of Drug Users) brought an action by way of summary trial for a declaration that the CDSA was inapplicable to Insite. Constitutional challenges to the CDSA were made under a division of powers argument and a Charter of Rights and Freedoms (“Charter”) claim.

At first instance, Justice Ian Pitfield of the B.C. Supreme Court made several crucial findings of fact, including that addiction is an illness, unsanitary and improper injection (rather than drugs themselves) cause several dangerous diseases, and the risk of death and morbidity is ameliorated by the presence of health professionals during injection.

In his reasons, Justice Pitfield rejected the claimants' argument that Insite was shielded from the CDSA through the doctrine of interjurisdictional immunity.

However, Justice Pitfield found that the claimants' rights to life, liberty and security of the person under s. 7 of the Charter were infringed and that this infringement, by reason of arbitrariness, was not in accordance with the principles of fundamental justice.

Finally, Justice Pitfield found that the infringement of the claimants' rights could not be saved under s. 1 of the Charter.

On appeal, a two-thirds majority of the B.C. Court of Appeal upheld the trial judge's reasons on s. 7 of the Charter. Justice Anne Rowles and Justice Carol Huddard, in separately written decisions, also allowed the claimants' cross-appeal on the question of interjurisdictional immunity. Justice Daphne Smith dissented on both issues, reasoning that while a s. 7 infringement had been made out, the claimants had failed to show that the infringement was not in accordance with the principles of fundamental justice.

The Supreme Court of Canada heard the appeal on May 12, 2011. There were 15 interveners in addition to the parties on appeal. The unanimous decision of the Supreme Court was written by Chief Justice Beverley McLachlin. On the division of powers issue, the Court held that the CDSA withstood constitutional scrutiny and was not inapplicable by operation of the doctrine of interjurisdictional immunity. The Court noted that the doctrine of interjurisdictional immunity has “narrow” application and is generally inconsistent with the notion of cooperative federalism.

On the Charter issue, the Court found that the s. 7 rights of both the staff and clients of Insite had been infringed by operation of s. 4(1) of the CDSA. However, the Court concluded that s. 7 rights had not been infringed by operation of s. 5(1) of the CDSA as the staff and clients of Insite were not engaged in trafficking. Despite the s. 7 infringement of the possession section of the CDSA, however, the Court concluded that the deprivation of rights was in fact in accordance with the principles of fundamental justice because of the availability of a ministerial exemption under s. 56 of the CDSA.

However, while the Court held that the CDSA itself was not contrary to the Charter, it found that the Minister's decision not to grant an exemption to Insite infringed the s. 7 rights of the staff and clients of the facility. The Court then held that the deprivation was not in accordance with the principles of fundamental justice as the decision was arbitrary and grossly disproportionate. Noting that Insite posed no negative impact to the legitimate criminal law objectives of the federal government, the Court declined to save the Minister's decision under s. 1 of the Charter.

Finally, the Court considered the issue of constitutional remedy based on its finding that the Minister's decision had breached the Charter. Noting that sending the matter back to the Minister for reconsideration would be inadequate in this case, the Court made a mandamus order requiring the Minister to grant an exception to Insite under s. 56 of the CDSA “forthwith.” At the same time, the Court preserved the Minister's discretion under the CDSA if the circumstances at Insite were to change.

Robert Frater and Paul Riley represented the appellant the Attorney General of Canada.

Joseph Arvay, QC (Arvay Finlay Barristers), Monique Pongracic-Speier (Ethos Law Group LLP), Scott Bernstein (Red Cedar Law) and Jeffrey Beedell (McMillan LLP) represented the respondents, PHS Community Services Society, Dean Edward Wilson and Shelly Tomic.

Craig Jones and Karrie Wolfe represented the respondent the Attorney General of British Columbia.

John Conroy, QC, of Conroy & Company and Stephen Mulhall, QC, represented the respondents Vancouver Area Network of Drug Users.

Hugo Jean represented the intervener the Attorney General of Quebec.

Andrew Nathanson and Brook Greenberg of Fasken Martineau DuMoulin LLP represented the intervener Dr. Peter AIDS Foundation.

Sheila Tucker of Davis LLP represented the intervener the Vancouver Coastal Health Authority.

Paul Monahan, Antonio Di Domenico and Andrew Baerg (then articling student) of Fasken Martineau DuMoulin LLP represented the intervener the Canadian Civil Liberties Association.

Michael Feder and Angela Juba of McCarthy Tétrault LLP and Louis Letellier de St-Just represented the interveners Canadian HIV/AIDS Legal Network, International Harm Reduction Association and CACTUS Montréal.

Rahool Agarwal, John Picone and Michael Kotrly of Ogilvy Renault LLP (now Norton Rose OR LLP) represented the interveners the Canadian Nurses Association, the Registered Nurses' Association of Ontario and the Association of Registered Nurses of British Columbia.

Owen Rees, Andrea Gonsalves and Fredrick Schumann of Stockwoods LLP represented the intervener Canadian Public Health Association.

Guy Pratte and Nadia Effendi of Borden Ladner Gervais LLP and Jean Nelson of the Canadian Medical Association represented the intervener Canadian Medical Association.

Ryan Dalziel and Thomas Moran of Bull, Housser & Tupper LLP represented the intervener British Columbia Civil Liberties Association.

Marjorie Brown of Victory Square Law Office LLP represented the intervener British Columbia Nurses' Union.

Michael Chambers of Maclaren Corlett LLP represented the intervener REAL Women of Canada.