The Federal Government is entitled to regulate by criminal law the trafficking in attractive poisons. So laws prohibiting the distribution of heroin are constitutionally valid. Yes, the Provinces regulate health care but when two valid laws conflict in a direct way the Federal law takes precedence and survives.
So here the dissent is right.
On to the Supreme Court!
Brian Hutchinson , National Post
Friday, Jan. 15, 2010
VANCOUVER -- Equating a "supervised injection site" where drug addicts consume heroin, cocaine and crystal methamphetamine to a hospital, the B.C. Court of Appeal has dismissed a federal government challenge aimed at closing the facility.
In her reasons for judgment released on Friday, Madam Justice Carol Huddart wrote that federal laws prohibiting the possession and use of controlled substances at the Vancouver facility -- called Insite -- cannot supercede provincial health care initiatives.
The doctrine of "interjurisdictional immunity" applies, she wrote, because Insite "provides a health care program" that is provincially funded and supported by B.C.'s attorney general, the regional health authority, the Vancouver Police Department and other local stakeholders.
"The provision of health care services is what makes a hospital a hospital, what makes health care a provincially regulated activity," she wrote. "It is the indisputable intrusion of the federal government into the provision of medical services at the level of doctor and patient that is happening at Insite. Could Parliament legislate to effectively prohibit a doctor from using a scalpel?"
Madam Justice Anne Rowles agreed. The third Appeal Court member, Madam Justice Daphne Smith, dissented. In cases where federal law and provincial activity conflict, she found that the application of "paramountcy" applies and the law has priority.
10 comments:
"on its face legally wrong"
no
it is simply sanity permeating the ranks of of our judicial system,
thankfully
"...and on its face legally wrong."
In what way is it wrong James? You make a statement like that without explaining. Do hope you answer as you rarely do answer questions at comments.
OK, let me try to explain.
When there is a conflict between a valid Federal law and a valid Provinicial law you first try to figure out if they can both be in force at the same time. So if a Federal law says you must eat chocolate and a Provincial law says you must eat bread, both can survuve as you can eat both. But if the Federal law says you are forbidden chocolate and the Provincial law says you have to eat chocolate, then there is a conflict. In the even of a conflict the Federal law wins.
Here the Federal law bans heroin. The Provinicial law, in limited circumstances, allows it.
Provincial law loses.
BC CA is wrong.
Now, BC CA is right in the real world -- but that's not the legal point
James,
You've made it very clear. Now I understand. Thankyou.
clear?
what is clear is that one lawyer in Toronto thinks he knows better than senior judges in BC
Historically some issues need to be solved by the justice system cause the MPs are wimps or in fear of the reactionary 35%-40% of active voters that seem to support neanderthal regimes from time to time (our current gov't is a case in point)
examples:
abortion
marriage equality
female suffrage
to name a few
it is called bucking the system
sometimes juries do it
sometimes judges do it
When judicial activism is truly out of step with society it gets fixed (reversed) but in the examples above ... we celebrate (eventually) the brave souls who bucked the system
Heh. Who ever said justice was the same as the law?
Here the Federal law bans heroin. The Provinicial law, in limited circumstances, allows it.
Ah, but this case (which I just finished up reading) is really about the overbroad definition of possession and trafficking.
The current case deals with the supervision of injection, not the acquisition of the substance, but a nurse merely telling a patient that the bevel has to be up is protected. They are not providing the drugs (NAOMI did that, under a S. 56 exemption).
I also believe that under division of powers the province has the more valid claim to health care. They talk about Hauser and Malmo-Levine (full disclosure: I've slept on his couch) but they forget to mention that those weren't in a medical context.
Aside from that, they said that even if the interjurisdictional immunity failed, they would have tossed it out for infringing s.7.
Have a look:
http://www.mapinc.org/temp/ca036159-2.pdf
data
not fair!
you are checking original sources and citing facts!
James here just read the media reports and knows all about this
have some respect!
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