Arbitrariness and Gross Disproportionality

View PDF: LitigationNotes_Vol6-9(3)

The Supreme Court of Canada orders the Federal Minister of Health to grant a safe injection clinic an exemption to the prohibition on possession of illegal drugs. Denying the services of the clinic to the population it serves is “..grossly disproportionate to any benefits that Canada might derive from presenting a uniform stance on the possession of narcotics.”

The Supreme Court of Canada recently released a decision with potentially far-reaching implications for legislation in Canada. Laws which go too far in pursuing a particular policy objective may be struck down if the expected benefit is out-weighed by the harm caused.

Sections 4(1) and 5(1) of Canada’s Controlled Drug and Substances Act (“CDSA”) prohibit possession and trafficking of an illegal drug. However, section 56 of the CDSA grants the power to the Federal Minister of Health to issue exemptions for medical or scientific reasons, or for any other purpose the Minister deems to be in the public interest.

In 2003, the Vancouver Coastal Health Authority applied for an exemption under sectionfor the purpose of operating a safe injection facility for intravenous drug users in Vancouver’s downtown eastside. Health Canada gave its approval for a conditional exemption from possession and trafficking laws as a pilot research project and the Insite Clinic opened its doors in September of 2003.

The downtown eastside (“DTES”) is an area of a few city blocks which is home to about 4600 intravenous drug users. Sharing of needles and unsafe injection practices resulted in diseases such as hepatitis and HIV/AIDS as well as frequent death by overdose. Insite has significantly ameliorated these problems.

Insite’s exemption lasted three years, expiring on September, 2006. In January of 2006, Canadians elected a government with a “law and order” agenda. The Federal Minister of Health indicated that he did not intend to continue the exemption, and an action was commenced.

One of the arguments under consideration by the Supreme Court of Canada was derived from the division of powers in Canada’s Constitution. Under the Constitution, the Federal Government has jurisdiction to legislate in the area of criminal law, whereas each province has jurisdiction with respect to “the Establishment, Maintenance and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals”.

The Attorney General of Quebec, as intervener, argued that it is beyond the power of the Federal Government to prohibit the use of drugs in a medical context. This argument was rejected as it confused the “constitutional validity of the law with the applicability of a valid law”. In determining whether a law is valid, a court looks to its dominant purpose and the fact that the law in this case had the “incidental effect of regulating provincial health institutions does not mean that it is constitutionally invalid. A valid federal law may have incidental impacts on provincial matters”. In pith and substance, the impugned provisions of the CDSA were valid exercises of the criminal law power.

The Attorney General of British Columbia argued that federal criminal laws are “implicitly constrained to operate consistently with the public interest” and that once a province establishes that a particular activity serves the public interest, that activity is exempt from the operation of the federal criminal law. It relied on the case of Attorney General of Canada v. Law Society of British Columbia (“Jabour”). In that case, the Law Society of British Columbia was disciplining Mr.Jabour for advertising his practice, contrary to the Law Society’s rules. Jabour filed a complaint under the Federal Combines Investigation Act on the basis that the Law Society’s rules were in restraint of trade, and an investigation was commenced. The Law Society of B.C. succeeded in having the investigation stopped on the basis that this was an intrusion on provincial jurisdiction.

The Supreme Court considered that Jabour could not be interpreted sufficiently broadly to apply to the facts of this case. Jabour turned on the fact that the Combines Investigation Act only prohibited activities that harm the public interest and held that “when a federal statute can be properly interpreted so as not to interfere with the provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes”. In this case, there was no such interpretation that was available.

Another argument advanced was that Insite should be shielded from the operation of the CDSA by the doctrine of inter-jurisdictional immunity. This doctrine “…is premised on the idea that there is a ‘basic, minimum and unassailable content’ to the heads of powers in ss.and 92 of the Constitution Act, 1867, that must be protected from impairment by the other level of government…in cases of where inter-jurisdictional immunity is found to apply, the law enacted by the other level of government remains valid, but has no application with regard to the identified ‘core’.” The Supreme Court rejected this argument on the basis that there is no identifiable “core” of provincial power over health care. None has ever been recognized in the jurisprudence and courts are reluctant to identify new areas where inter-jurisdictional immunity should apply. In this case, the claimants had failed to identify a delineated “core” of exclusively provincial power and to do so would be difficult:

“The provincial health power is broad and extensive. It extends to thousands of activities and a host of different venues. Such a vast core would sit ill with the restrained application of the doctrine called for by the jurisprudence. To complicate the matter, parliament has power to legislate with respect to federal matters, notably criminal law, that touch on health. For instance, it has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as ‘socially undesirable’ behaviour…The federal role in the domain of health makes it impossible to precisely define what falls in or out of the proposed provincial “core”. Overlapping federal jurisdiction and the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around the protected provincial core of health where federal legislation may not tread.”

Furthermore, to apply inter-jurisdictional immunity to a protected core of provincial health power could create a legal vacuum:

“Excluding the federal criminal law power from a protected provincial core power would mean that Parliament could not legislate on controversial medical procedures, such as human cloning or euthanasia. The provinces might choose not to legislate in these areas and indeed might not have the power to do so. The result might be a legislative vacuum, inimical to the very concept of the division of powers”.

The claimants also argued that the Minister’s denial of an exemption under ss.(1) and 5(1) of the CDSA was a violation of their rights under s.of the Canadian Charter of Rights and Freedoms. That section states that 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”. The Court found that the staff of Insite could be found to be illegally in possession of drugs within the meaning of s.(1) of the CDSA. Without a s.exemption, they could be exposed to the possibility of imprisonment for doing their job. This constituted a threat to their liberty. Clients of the Clinic could also be said to be in possession of narcotics and have their liberty rights endangered. Furthermore if the staff were unable to offer medical supervision and counselling, the clients could be denied potentially lifesaving medical care, thereby endangering their rights to life and security of the person.

The Court found that the Minister’s refusal to grant Insite a s.exemption was not in accordance with the principles of fundamental justice because the decision was “arbitrary and grossly disproportionate in its effects”. A decision is arbitrary when “[a] deprivation of a right…bears no relation to, or is inconsistent with, the state interest that relies on prior legislation”. There are good reasons for prohibiting the possession and trafficking of illicit drugs but those reasons had no application to the activities at Insite. Evidence established that:

“(1)common law prohibitions have done little to reduce drug use in the DTES; (2)risk to injection drug users of death and disease is reduced when they inject under the supervision of a health professional; and (3) the presence of Insite did not contribute to increased crime rates, increased incidence of public injection, or relapse rates in injection drug users. On the contrary, Insite was perceived favourably or neutrally by the public; local business associations reported a reduction in crime during the period Insite was operating; the facility encouraged clients to seek counselling, detoxification and treatment. Most importantly, the staff of Insite had intervened in 336since 2006, and no overdose deaths had occurred at the facility…These findings suggest not only that exempting Insite from the application of the possession prohibition does not undermine the objectives of public health and safety, but furthers them.”

The Court also found that the application of the possession prohibition to Insite was grossly disproportionate in its effects. “The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefits that Canada might derive from presenting a uniform stance on the possession of narcotics”.

The Federal Minister of Health was ordered to grant an exemption for Insite under s.of the CDSA.

Canada (Attorney General) v. PHS
Community Services Society, 2011 SCC 44