Insite

CONSTITUTIONAL LAW

Federalism

91. . . . it is hereby declared that ... the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, —

. . .

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, —

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

. . .

13. Property and Civil Rights in the Province.

. . .

16. Generally all Matters of a merely local or private Nature in the Province.

Rights (Canadian Charter of Rights and Freedoms)

The claimants also invoke ss. 1 and 7 of the Charter:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

. . .

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Constitutional arguments...

interjurisdictional immunity

inter - jurisdictional - immunity

BCSC

BCCA

SCC

Section 7

• local, provincial and federal authorities came together to create a legal framework for a safe injection facility...result of years of research, planning, and intergovernmental cooperation

• a strictly regulated health facility...

[149] The Minister is bound to exercise his discretion under s. 56 in accordance with the Charter. On the facts as found here, there can be only one response: to grant the exemption. There is therefore nothing to be gained (and much to be risked) in sending the matter back to the Minister for reconsideration.

[152] The dual purposes of the CDSA — public health and public safety — provide some guidance for the Minister. ... Where, as here, the evidence indicates that 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.

BUT

[150] In the special circumstances of this case, an order in the nature of mandamus is warranted. I would therefore order the Minister to grant an exemption to Insite under s. 56 of the CDSA forthwith. (This of course would not affect the Minister’s power to withdraw the exemption should the operation of Insite change such that the exemption would no longer be appropriate.) On the trial judge’s findings of fact, the only constitutional response to the application for a s. 56 exemption was to grant it.

[140] The conclusion that the Minister has not exercised his discretion in accordance with the Charter in this case is not a licence 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.

1. spatial

2. catalytic

3. political

• interjurisdictional immunity

• life, liberty and security of the person except in accordance with principles of fundamental justice

SOCIAL JUSTICE IN THE COURT

Canada (Attorney General) v. PHS Community Services

• social justice and rights

• odd notion of rights

• misfit with IDU culture

• addiction is a health issue

• life
• liberty
• security of the person

• principles of fundamental justice