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 various service providers or an on‑site, on demand detox centre.

Operating a supervised injection site required an exemption from the prohibition of possessing and trafficking 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.

As the Supreme Court of Canada recognized, the Insite experiment has proven successful.  Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area.  Insite is supported by the Vancouver police, the city, and the provincial government, who wanted Insite to remain open.

In 2008, a formal application for a new exemption was made to the federal Minister of Health.  By this point, the federal government that had initially approved Insite had changed.  The new federal government had a different policy.  The Minister had granted temporary extensions in 2006 and 2007, but thereafter he indicated that he had decided to deny the application.  When the expiry of the extensions loomed, Insite's operator PHS Community Services Society (PHS), and two of its users, Dean Wilson and Shelly Tomic, commenced an action against the federal government.  The Vancouver Area Network of Drug Users (VANDU) commenced a parallel action.

The issue in PHS was whether Insite is exempt from the CDSA provisions prohibiting drug possession and trafficking because (1) Insite is a health facility under the exclusive jurisdiction of the Province (the "Federalism Issue") or (2) because the application of the criminal law to the activities at Insite would violate s. 7 of the Charter (the "Charter Issue").

The Supreme Court of Canada's Judgment

In a unanimous judgment written by Chief Justice McLachlin, the court decided the Federalism issue in favour of Canada, concluding that Insite is not within the exclusive jurisdiction of the Province and the CDSA applies to activities there. 

On the Charter Issue, the court held that the CDSA itself is valid and does not offend the Charter because the Minister's ability to grant exemptions under s. 56 of the CDSA acts as a "safety valve":  it relieves against potentially unconstitutional or unjust applications of the prohibitions on possession and trafficking controlled drugs.  If there is a Charter problem, and the court found that there is, it arises from the Minister's exercise of the power to grant exemptions under s. 56.  The Minister was required to exercise his power in a manner that complies with the Charter.  The court decided that the Minister had made a decision to refuse Insite's exemption and that decision was arbitrary and grossly disproportionate and thus not in accordance with the principles of fundamental justice, violating s. 7 of the Charter.  The Minister's decision was arbitrary because denying an exemption prevents addicts from accessing the health services offered by Insite, threatening their lives and health.  The decision is also grossly disproportionate because the evidence from Insite's eight years of operations proves that it saves lives without any discernible negative impacts on the federal government's health and public safety objectives. 

The court ordered the Minister to forthwith grant Insite a s. 56 exemption.  The court also recognized the possibility that further exemptions will be required in the future for other similar facilities.

Significant Findings and Future Implications

PHS is a bold judgment by the Supreme Court.  It recognises in strong terms the health benefits of Insite, and supervised injection services more generally.  It anticipates and paves the way for further supervised injection sites and pre-emptively addresses and seeks to confine the Minister's discretion in respect of future applications.  Beyond the immediate issues in the case, PHS reflects a willingness by the Supreme Court to engage in substantive review of policy decisions, and to require policymakers to have careful regard for the evidence on which their decisions are based.

Several significant points emerge from the judgment.

First, PHS was not the triumph for provincial powers that it might have been.  PHS and the Province of B.C. argued that the creation of Insite was part of the "core" exercise of provincial jurisdiction over the delivery of health services and Insite was therefore immune from the application of federal laws like the CDSA.  The B.C. Court of Appeal decided the Federalism Issue in favour of the Province.  If the Supreme Court of Canada had agreed, this would have been the first time an argument for what is known as "interjurisdictional immunity" was applied in favour of provincial power.  More importantly, this would have resulted in expanded provincial powers and, depending on one's point of view, a desirable increase in local innovation or a catastrophic loss of national uniformity.  Consistent with its recent decisions in this area, the Supreme Court refused to apply interjurisdictional immunity, preferring an approach that would allow each level of government the maximum flexibility to legislate, at the cost of overlap and the occasional resort to the paramountcy of federal legislation.  The court pointed to the impossibility of defining a protected core of the province's power over health given its size and diversity, and to the federal government's historic role in prohibiting medical treatments it deems dangerous or socially undesirable.

The court also made it clear that the route to offering supervised injections lies through a s. 56 exemption. This means the federal government retains a central role in the application of the CDSA and is not sidelined in favour of provincial power, as would be the case if the Federalism Issue had been decided in favour of the Plaintiffs. 

Second, the Supreme Court's conclusion that the Minister's decision was arbitrary and grossly disproportionate and therefore violated the Charter is an extraordinary exercise in substantive judicial review in at least two respects.  While the current federal government has adopted a policy that prefers enforcement to harm reduction, the Court said that policy alone was not a basis to refuse the exemption.  In other words, the Minister could not base a decision on policy or pure principle, without regard to the evidence.  The Court essentially found that on the basis of the evidence before the Minister, the only available conclusion was to grant Insite an exemption. 

It is also very unusual for the Court to command the exercise of Ministerial discretion, which it did by ordering the Minister to grant the exemption.  Ordinarily, the Court will set out guiding principles that are intended to inform a decision, and remit the matter to the Minister to exercise their statutory power to decide.  This is so because when it fashions a remedy for a Charter violation, the Court is engaged in a "constitutional dialogue" with the other branches of government, in which it must be respectful of their role and importance.[1]  In effect, in PHS, the Court ended the dialogue on an issue that was politically controversial, but easily resolved on the facts.

The Supreme Court clearly saw the case in scientific terms.  The Court was impressed by the evidence of Insite's health benefits.  The Court noted that the trial judge found that drug addiction is an illness and the federal government did not challenge this. 

Third, the court explicitly referred to the possibility of future applications for exemptions for safe injection sites.  The Court was careful to say that its decision is not to be interpreted as a licence to break the law or as an invitation for anyone who so chooses to open a facility for drug use under the banner of a safe injection facility.  The Court identified the factors the Minister should take into account in evaluating future applications, and concluded that where "the evidence indicates that a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption".  This is much stronger guidance and language than is customary from the Supreme Court.  Courts usually prefer to decide cases on the facts presented, allow the law to develop incrementally, and leave questions that do not immediately arise for future cases. 

A number of groups have indicated their desire to operate supervised injection facilities in other parts of the country.  It will be interesting to see the approach the federal government takes to such applications.  Since Insite is the first of its kind in Canada, the research into its operations forms the principal available medical evidence for the health benefits of supervised injection facilities.  One of the other factors cited by the Court as relevant to future applications is expressions of community support or opposition.  However, it is difficult to see how, if the evidence of an applicant's health benefits is similar to that of Insite, public opinion could be a factor weighing against a person's s. 7 Charter right to life or liberty.

Conclusion

PHS can be seen as a high water mark in the Supreme Court's substantive judicial review jurisprudence.  The Court found that the Minister's decision was so flawed and contrary to the evidence that it was appropriate to terminate the constitutional dialogue, and dictate what the Minister was required to do in this case, and in similar cases that are expected to arise in the future.  PHS is an encouraging development for proponents of supervised injection and harm reduction policies, as well as for those who argue for a rational and evidence-based approach to health care policy-making.