Insite drug clinic can stay open: striking setback for Federal drug policy

Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44 was just released. The unanimous Supreme Court held that BC's Insite drug injection clinic can remain open despite Federal government opposition. This is a remarkable setback for the Federal government. A summary follows:

                    In the early 1990s, injection drug use reached crisis levels in Vancouver's downtown eastside ("DTES").  Epidemics of HIV/AIDS and hepatitis C soon followed, and a public health emergency was declared in the DTES in September 1997.  Health authorities recognized that creative solutions would be required to address the needs of the population of the DTES, a marginalized population with complex mental, physical, and emotional health issues.  After years of research, planning, and intergovernmental cooperation, the 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, though controversial in North America, have been used with success to address health issues associated with injection drug use in Europe and Australia.

                    Operating a supervised injection site required an exemption from the prohibitions of possession and trafficking of 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.  North America's first government‑sanctioned safe injection facility, it has operated constantly since then.  It is a strictly regulated health facility, and 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.  The experiment has proven successful.  Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area.  It is supported by the Vancouver police, the city and provincial governments.

                    In 2008, a formal application for a new exemption was made before the initial one expired.  The Minister had granted temporary extensions in 2006 and 2007, but he indicated that he had decided to deny the application.  When the expiry of the extensions loomed, this action was started in an effort to keep Insite open.

                    The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA violated the claimants' rights under s. 7 of the Charter.  He granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws.  The Court of Appeal dismissed the appeal and held that the doctrine of interjurisdictional immunity applied.

                    Held:  The appeal and the cross‑appeal are dismissed.  The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.

                    The criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers.  First, the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal criminal law power.  The fact that they have the incidental effect of regulating provincial health institutions does not mean that they are constitutionally invalid.  Second, provincial programmes designed to advance the public interest are not, by virtue of their public interest status, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited.  The CDSA does not contain such a limit.  Third, the doctrine of interjurisdictional immunity does not apply.  Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference.  In addition, the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism.  To apply it here would disturb settled competencies and introduce uncertainties for new ones.  Finally, as it is common ground that, absent a constitutional immunity, the federal law constrains operations at Insite and trumps any provincial legislation or policies that conflict with it, it is unnecessary to inquire into whether the doctrine of paramountcy applies.

                    The claimants' lack of success on the division of powers issue does not doom their claim that the law deprives them of a s. 7 Charter right.  There is no conflict between saying that a federal law is validly adopted under s. 91 of the Constitution Act, 1867, and that the same law, in purpose of effect, deprives individuals of rights guaranteed by the Charter.

                    Section 4(1) of the CDSA engages the s. 7 Charter rights of the individual claimants and others like them, but, because the Minister has the power to grant exemptions from s. 4(1), it does so in accordance with the principles of fundamental justice.  Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA.  It also directly engages the rights to life, liberty and security of the person of the clients of Insite.  In order to make use of the lifesaving and health‑protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises.  Prohibiting possession at large engages drug users' liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person.  However, because s. 56 gives the Minister a broad discretion to grant exemptions from the application of the CDSA if, "in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest", s. 4(1) does not violate s. 7.  The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects.

                    On the facts, the prohibition on trafficking in s. 5(1) of the CDSA does not constitute a limitation of the claimants' s. 7 rights because trafficking charges would not apply to the activities of Insite staff.

                    The discretion vested in the Minister of Health is not absolute:  as with all exercises of discretion, the Minister's decisions must conform to the Charter.  If the Minister's decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter, then the Minister's discretion has been exercised unconstitutionally.  In the special circumstances of this case, the Court should go on to consider whether the Minister's decision violated the clamaints' Charter rights.  The issue is properly before the Court and justice requires that it be considered.

                    There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather than government action.  The ability to make some choices does not negate the trial judge's findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance.  Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.  Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions.  While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter.  The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with Charter.

                    The Minister's failure to grant a s. 56 exemption to Insite engaged the claimants' s. 7 rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister's decision, but for the trial judge's interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants' s. 7 interests and constitutes a limit on their s. 7 rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

                    If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed.  The goals of the CDSA are the maintenance and promotion of public health and safety.  The Minister's decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants' s. 7 rights.

                    As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy.  In the special circumstances of this case, an order in the nature of mandamus is warranted.  The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.  A declaration that the Minister erred in refusing the exemption would be inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite's current constitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate.

                    On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety.  In accordance with the Charter, the Minister must 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.  Where, as here, 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.