Supreme Court Of Canada Decision A Validation Of Co-Operative Federalism, Harm Reduction And Substantive Judicial Review

Introduction On September 30, 2011, the Supreme Court of Canada released an important decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (PHS), addressing the authority of the provincial and federal governments to regulate the provision of health care services to individuals who are addicted to narcotics, and the constitutionality of the Minister of Health's decision not to renew an exemption from the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"), to Insite, a safe injection site located in Vancouver's impoverished Downtown Eastside neighbourhood (the "DTES").

Fasken Martineau represented two of the interveners before the Supreme Court of Canada. Andrew Nathanson and Brook Greenberg of the firm's Vancouver office (with the assistance of Holly Brinton) appeared for the Dr. Peter AIDS Foundation. Paul Monahan, Tony Di Domenico and Andrew Berg (who was a student at law at the time) of the firm's Toronto office appeared for the Canadian Civil Liberties Association ("CCLA"). Both the Dr. Peter AIDS Foundation and the CCLA intervened in support of Insite's continued operation.

Background 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 all Vancouver's intravenous drug users. In the early 1990s, injection drug use reached crisis levels in the DTES. Open drug use was accompanied by epidemic levels of HIV/AIDS and hepatitis C, and a high rate of deaths from overdoses.

After years of research, planning, and intergovernmental cooperation, local, provincial, and federal 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 had been used with success to address health issues associated with injection drug use in Europe and Australia.

The different levels of government cooperated in creating a legal framework for a safe injection facility in which clients could inject drugs under medical supervision without fear of arrest and prosecution. The Supreme Court referred approvingly to Insite as "the product of co-operative federalism".

Insite is a strictly regulated health facility. It operates under the authority of the Vancouver Coastal Health Authority. 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...