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. As 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 Minister went on to appeal.
At the Court of Appeal, the issues were;
1. Whether Insite should be exempted from the federal criminal laws that prohibited the possession and trafficking of controlled substances?
2. Whether the Minister had absolute powers?
The minister argued that, 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 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 programs 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.
It was held that, the CDSA is constitutionally valid and applies to the activities at Insite which conform to the Charter. However, the Minister of Health’s actions in refusing to exempt Insite from the operation of the CDSA are in violation of the respondents’ s. 7 Charter rights and cannot be justified under s. 1. The court stated that, 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.
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. 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. The Minister was therefore ordered to grant an exemption for Insite under s. 56 of the CDSA and the appeal and the cross‑appeal were dismissed.
Works Cited
Arvay, Josepsh , Q.C., Monique Pongracic‑Speier, Scott E. Bernstein and Jeffrey W. Beedell, for
the respondents PHS Community Services Society, Dean Edward Wilson and Shelly
Tomic.
Canada. Health Canada. Vancouver’s INSITE service and other Supervised injection sites:
What has been learned from research? — Final report of the Expert Advisory Committee,
March 31, 2008 (online: http://www.hc-sc.gc.ca/ahc-asc/pubs/_sites-lieux/insite/index
eng.php).
Canadian Charter of Rights and Freedoms, s.7.
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 5(1), 56.
