Friday, September 30, 2011
Canada's high court today issued a unanimous opinion in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, known as the "Insite Case." The case considers the legal status of Insite, (pictured left) North America’s first government-sanctioned safe injection facility, operating in Vancouver under local and provincal law, since 2003. It implicates the constitutionality of needle-exchange, harm reduction, and addiction services throughout Canada.
For Americans, it might be helpful to think of Gonzalez v. Raich, the 2005 medical marijuana case, but add a Canadian twist for the structures analysis and a large dose of fundamental rights. In Raich, the United States Supreme Court upheld Congressional power to criminalize all marijuana under the Commerce Clause in the Controlled Substances Act, even if such marijuana was a few plants of "home grown" authorized under California's attempt to legalize medicinal marijuana. The Court in Raich declined to extend its pattern of holding Congressional acts under the Commerce Clause unconstitutional as it did in United States v. Lopez and United States v. Morrison; and of course Raich is one of the cases most favorable to the US Government's argument that the Affordable Care Act is constitutional.
In the Insite Case, the Supreme Court of Canada also ruled in favor of national rather than provincial rights. The Canadian structure is tilted much more in favor of federal rights, with a federal criminal code and a federal family law code, so this is not surprising. It was clear that the Controlled Drugs and Substances Act, CDSA, was valid legislation, pursuant to Parliament’s criminal law power, s. 91(27), but the issue was whether, as a result of the division of powers between the federal government and the provinces, Insite was not bound by the valid criminal laws that prohibit the possession and trafficking of controlled substances. The Court considered several arguments, but ultimately concluded without much difficulty that Insite was subject to federal power and not protected by contrary provincial laws.
Yet Insite and its clients also had a Charter argument, relying upon Section 7 of the Charter of Rights in the Canadian Constitution that states that everyone “has the right to life, liberty and security of the person."
The Court rejected the government's argument that "any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA’s prohibition on possession of illegal drugs, but rather are the consequence of the drug users’ decision to use illegal drugs." The Court emphasized that addiction is an illness, and that moral and policy questions are not pertinent. Nevertheless, the federal CDSA was not deemed to violate Section 7 because the law allowed the Minister of Health to grant exemptions from criminal enforcement. Yet it was precisely the Minister's failure to grant an exemption for this harm reduction program that the Court did find to be a violation of Section 7.
Paragraph 153 of the Court's opinion is a good summary:
The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.
This is a narrow ruling, but a unanimous one against the Government and one with potentially far-reaching consequences in Canada. Reports from Macleans, The Globe and Mail, CBC (print), CBC audio (including an interview with UBC ConLawProf Margot Young) provide some context useful for US readers.