Canada (Attorney General) v. PHS Community Services

Insite was a medical facility that supervised intravenous drug use. It was established in response to escalating intravenous drug use and a rise in HIV/AIDS and hepatitis C infections among the population of the downtown eastside (DTES) area of Vancouver. In 2003, pursuant to section 56 of the Controlled Drug and Substances Act (CDSA), which allowed the Minister of Health to grant discretionary exemptions to the CDSA for medical or scientific purposes, the Minister granted Insite an exemption from section 4(1) and 5(1) of the CDSA (prohibiting possession and trafficking of controlled substances). Insite’s programs were proven to be effective at reducing the prevalence of HIV/AIDS and hepatitis C and at saving lives. The programs were supported by local and provincial governments. Temporary exemptions were again granted in 2006 and 2007. In 2008, the Minister of Health indicated that he would not grant an exemption to Insite.

Prior to the expiration of the exemption, two individual Insite clients and PHS (a non-profit organization that supervised Insite’s operations) brought an action to maintain Insite’s provision of services, arguing that sections 4(1) and 5(1) of the CDSA were constitutionally inapplicable to Insite and that by depriving Insite clients of health services, their application would violate the rights to life and security in section 7 of the Canadian Charter of Rights and Freedoms (the Charter). Additionally, sections 4(1) and 5(1) of the CDSA would violate the section 7 Charter right to liberty of Insite staff, as they would be subject to criminal penalty.

The trial judge found addiction to be an illness and that medical supervision reduced mortality and morbidity associated with drug injection. The trial judge further determined that the rights of Insite clients and employees under section 7 of the Charter were limited by the application of sections 4(1) and 5(1) of the CDSA and granted Insite a constitutional exemption from their application. The trial decision was affirmed on appeal. The Attorney-General appealed to the Supreme Court.

The Court considered two questions: whether sections 4(1) and 5(1) were constitutionally inapplicable to Insite, because decisions about health facilities fell within provincial, not federal, jurisdiction, and second, whether the sections violated the Charter.  It held that sections 4(1) and 5(1) of the CDSA were constitutionally applicable to Insite and that the provisions themselves did not violate the Charter, but that the Minister’s refusal to grant an exemption to Insite violated Insite’s and Insite clients’ right to life, liberty and security under section 7 of the Charter.

On the first question, the Court determined that sections 4(1) and 5(1) were applicable to Insite because they were validly enacted under the federal criminal power, and delivery of health care services was not part of the “protected core of the provincial power over health care” (para. 66). In the Court’s opinion, the diversity of both criminal and health care activities meant that the Court should narrowly construe areas of exclusive jurisdiction between the federal and state governments, both to avoid creating “legal vacuums” and because of the difficulty of drawing brightline distinctions between criminal and health-related regulation.

On the second question, the Court held that sections 4(1) and 5(1) did not themselves violate the Charter. It determined that section 5(1) of the CDSA, which prohibited trafficking of controlled substances, did not apply to Insite at all, because Insite did not provide its clients with narcotics. Section 4(1), which criminalized possession of drugs, did apply to Insite, and thus engaged the right to life, liberty and security in section 7 of the Charter of both Insite clients and employees, because the prohibition on possession meant that Insite clients could not access potentially life-saving services. The Court also rejected an argument that it was the intravenous drug use by Insite clients and not the CDSA that led to this deprivation. However, the deprivation was in accordance with fundamental justice, because the ability of the Minister to grant exemptions from the law prevented it from applying where it would be arbitrary, overbroad or have a grossly disproportionate effect. As such, the laws themselves did not violate the Charter.

The Court did hold, however, that the Minister’s failure to grant Insite an exemption to section 4(1) violated the Charter because it would prevent clients from accessing health services provided by Insite and could penalize Insite staff. Thus their right to life, liberty and security under section 7 Charter would be limited. The Court further held that this limitation was not in accordance with the principles of fundamental justice because it was arbitrary and grossly disproportionate. In this regard, it noted that Insite's programs were known to be effective and to save lives, and its operation furthered rather than undermined the CDSA’s aims of promoting public health. The Minister was fully aware of this, yet still refused the exemption, at great cost to injecting drug users.

The refusal to grant an exemption could also not be justified under section 1 of the Charter, as necessary to preserve the rule of law, because Insite had been shown to both save lives and not to undermine the legitimate crime prevention efforts of the Government.  This finding was the basis for the holding that the Minister’s refusal violated section 7 of the Charter and did not open the way for others to flout drug laws.

The appeal was dismissed and the Court ordered the Minister to grant Insite an exemption under section 56 of the CDSA.

The Court also rejected a cross-appeal by a co-Respondent, which challenged the application of section 4(1)’s prohibition on possession for all addicted persons. It held that such a case was clearly distinguishable from Insite’s claim in its factual foundations.

“The ability to make some choices, whether with the aid of Insite or otherwise, does not negate the trial judge’s findings on the record before him that addiction is a disease in which the central feature is impaired control over the use of the addictive substance.” Para. 101.

“The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.” Para. 133.

“The Minister’s decision 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, undermining the very purposes of the CDSA, which include public health and safety. It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite's premises.” Para. 136.

“The conclusion that the Minister has not exercised his discretion in accordance with the Charter in this case is not a license for injection drug users to possess drugs wherever and whenever they wish. Nor is it an invitation for anyone who so chooses to open a facility for drug use under the banner of a “safe injection facility”. The result in this case rests on the trial judge’s conclusions that Insite is effective in reducing the risk of death and disease and has had no negative impact on the legitimate criminal law objectives of the federal government. Neither s. 56 of the CDSA nor s. 7 of the Charter require condonation of crime. They demand only that, in administering the criminal law, the state not deprive individuals of their s. 7 rights to life, liberty and security of the person in a manner that violates the principles of fundamental justice.” Para. 140.