Constitutional Division Of Powers - I Nterjurisdictional Immunity - Canadian Charter Of Rights And Freedoms - Life, Liberty And Security Of The Person - Principles Of Fundamental Justice - Ministerial Discretion

Canada (Attorney General) v PHS Community Services, 2011 SCC 44 (Released September 30, 2011)

The Supreme Court of Canada unanimously ordered that the federal Minister of Health (the "Minister") must exempt Insite, a safe drug injection facility in Vancouver's Downtown Eastside, from provisions of the Controlled Drugs and Substances Act ("CDSA").

Insite has provided various medical services, including supervised injections of controlled substances, to intravenous drug users since 2003. The Insite facility was able to operate legally between 2003 and 2008 under a discretionary exemption by the Minister pursuant to s. 56 of the CDSA, which allows for targeted ministerial exemptions necessitated by medical, scientific, or other public interest purposes. In 2008, the Minister indicated that he did not intend to grant a continued exemption. The Supreme Court considered the legislative scheme and the Minister's decision in light of the Canadian Charter of Rights and Freedoms and the constitutional division of powers.

The Court rejected an argument that the application of the CDSA to Insite ran afoul of the constitutional division of powers. The Court concluded that the CDSA was a valid exercise of the federal criminal law power, and that the doctrine of interjurisdictional immunity did not render the CDSA inapplicable to Insite as an impermissible federal intrusion into the core of a provincial thing or undertaking. In so deciding, the Court noted that no other cases had recognized a protected core of provincial power over health; that the claimants had failed to delineate any meaningful core; and that recognizing a protected core of provincial power over health may give rise to legal vacuums with respect to such issues as human cloning or euthanasia.

The Court further held that the legislative scheme created by the CDSA complied with s. 7 of the Charter. Although the life, liberty, and security of the person interests of Insite staff and clients were engaged by the CDSA prohibitions against...