What Insite revealed about Canadian federalism

Posted By Rosel Kim – Apr. 3, 2012

What Insite revealed about Canadian Federalism

The doctrine of interjurisdictional immunity, which, in division of powers, renders inapplicable any law that infringes upon the “basic, minimum and unassailable core” of a head of power, has always held a tenuous place in Canadian federalism jurisprudence. While the Insite judgment was not based on interjurisdictional immunity (IJI), Chief Justice McLachlin’s discussion of its underlying philosophy and its relationship to Canadian federalism was nevertheless rather illuminating on a conceptual level. An analysis of the Court’s conception of IJI in Insite reveals one of a pan-Canadian community perspective, rather than a territorial one. This in turn offers proof that the Court’s reliance on community perspectives of federalism, in lieu of its more conventional functionalist perspective.


Differing views of interjurisdictional immunity’s potential to protect provincial powers

The Supreme Court’s reliance on the controversial doctrine of IJI has drawn criticisms for its alleged bias towards exclusiveness and its centralizing tendencies. Past cases involving the doctrine sought to protect a federal “core” by rendering provincial laws inapplicable. As a result, some writers have seen IJI as a vehicle that lends itself to federal domination. The constitutional scholar Peter Hogg attributed the doctrine’s bias to federal laws to its origin; federally incorporated companies invoked IJI to seek exemptions form provincial laws.1 The unbalanced nature of the doctrine led Hogg to denounce the doctrine as “unprincipled and perverse.”

In contrast, others have more recently suggested that IJI can protect provincial powers in a limited manner.Robin Elliot suggests IJI has the potential to guarantee provincial autonomy.2 He envisions IJI as fostering cooperative federalism with the provincial and the federal powers in harmony, by suggesting that true cooperation between the two levels of government should “work to reduce rather than enhance the degree of overlap”3 of powers.


Exploring the relationship between interjurisdictional immunity and provincial powers

However, the Supreme Court in Insite did not uphold Elliot’s argument for IJI’s possibility of granting an exclusive provincial core. When McLachlin CJ characterizes the “core” of health case as “broad and expansive”4 and unable to be contained as an exclusive jurisdiction, she provides for the possibility of future federal government intrusions into health care. However, the Court’s refusal to acknowledge health care as an exclusive and protected provincial “core” is supported by s. 92(7) of the Constitution Act, which only grants provinces the powers of “Establishment, Maintenance, and Management of Hospitals”5 rather than broader jurisdiction of health care itself. Therefore, the traditionally federally biased doctrine of IJI, coupled with the restrictive wording of the Constitution Act, ultimately deny a “core” and provincial autonomy.


Insite and interjurisdictional immunity — expanding and promoting a pan-Canadian community perspective

By refusing IJI to Insite operations, McLachclin conceptualizes the “public” (affected by the site) as a broader universal community overstepping territorial borders, where its interests are supposed to be protected and checked by the watchful eye of the federal and provincial powers. In widely expanding the definition of “public” to encompass a pan-Canadian community, the Insite  ruling succeeds in protecting the rights of drug users by treating them as a universal community, rather than territorial one. In directly contradicting the British Columbia government’s assertion that matters of public interest were not immune from federal intrusion, the Court establishes that the safety and rights of drug users that are being addressed by Insite are a matter of both federal and provincial concern.

By conceptualizing drug users as a larger community rather than a territorial one (and thus requiring federal intervention), the Court’s decision has also led other provinces like Quebec to seek exemptions for safe injection sites.6 This emphasis on shared jurisdiction over marginalized communities when protecting rights to health care is not new: a most telling example was in R v. Morgentaler, where the Supreme Court ruled that women were entitled to equal access to abortion regardless of their territorial community.7 Therefore, marginalized groups’ interests are best protected through exhaustive, overlapping powers, rather than exclusive ones outlined by IJI.


Potential delays due to coordination needs

From a functional perspective, however, the denial of IJI to the provinces is not effective due to its extensive overlap. McLachclin CJ explicitly invokes cooperative federalism as a guiding principle for the judgement, where “both governments should be permitted to legislate for their own valid purposes” (emphasis mine)8 with “concurrent federal and provincial legislation with respect to a matter.”9 The multiplicity of “purposes” rather than a singular “purpose” in her judgment indicates that McLachlin’s conception of cooperative federalism would enhance overlap, unlike Elliot, who views true cooperative federalism as reducing such overlapping powers. McLachlin’s call for “cooperative federalism” then requires multiple governing bodies to oversee Insite, including the federal Ministry of Health and the provincial Vancouver Health Services. The significant overlapping legislations necessitates more laborious coordination in operating drug laws risking  “unacceptably high decision costs.”10 The prolonged coordination process could create potential delays in future safe injection sites proposed in Montreal — the impact remains to be seen.


1 Peter W Hogg, Constitutional Law of Canada, 2nd ed (Toronto: Carswell, 1985) at 329.

2 Robin Elliot, “Interjurisdictional Immunity after Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Muddles the Doctrinal Waters — Again” (2008) Supreme Court Law Review (2d) 433 at 488.

3 Ibid at 489.

4 Canada (AG) v PHS Community Services Society 2011 SCC 44 at para 68 [Insite].

5 Constitution Act, 1867 (UK), 30 & 31 Vict c 3 s 92(7) reprinted in RSC App II No 5.

6 “Quebec primed for safe injection sites” CBC (11 October 2011) online: CBC News

7 R v Morgentaler [1993] 3 SCR 463 107 DLR (4th) 537.

8 Insite, supra note 4 at para 62.

9 Ibid at para 62.

10 Richard E Simeon, “Criteria for choice in Federal Systems” (1982-1983) 8 Queen’s Law Journal 131 at 143.

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