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.

Reflections on the 4th Annual MJLH Colloquium

Posted By Meara Conway – Mar. 28, 2012

The MJLH‘s 4th Student Colloquium entitled “Insight on Insite: The Evolution of Canada’s Drug Treatment Policy” held on March 10th featured lawyers, health providers, academics, politicians, community workers and law enforcement representatives. With the Supreme Court’s (SCC) recent landmark decision, and as stakeholders brace for the impact of Harper’s Omnibus Crime Bill on preexisting drug treatment strategies, the Colloquium was a timely survey of the complex economic, legal, social, and medical issues at the nexus of drug use harm reduction initiatives.

Kicking off the discussion was the Honourable Libby Davies. She spoke of Insite’s “recipe” for success: a combination of legal challenges, political mobilization and community organizing over more than a decade leading to Insite’s eventual acceptance. The criminalization of drugs and drug use in the DTES was increasingly recognized as an economic and social failure disproportionately targeting marginalized populations. Davies raised some of the class issues concerning drug treatment policies citing pervasive misconceptions that drug use predominantly impacts the poor. She attributed these misconceptions to the visibility of marginalized populations where addictions interact with poor access to treatment, increasingly limited social services and affordable housing, which in turn exacerbate drug use. While drug addiction is in fact a widespread affliction impacting all demographics, the visibility of such users makes them particularly vulnerable to criminalization and stigmatization. According to Davies, years of community organizing led to alliances between unlikely bedfellows (such as DTES and Vancouver West parents on projects like Grief to Action). This changed popular misconceptions about drug use and created momentum for mobilizing support for Insite within and beyond the DTES.

While much of the discussion revolved around harm reduction initiatives, Dr. Kathryn Gill, McGill Associate Professor of Psychiatry and Director of Research at the Addictions Unit of the McGill University Hospital Centre (MUHC), called for a broader approach to drug policies. Harm reduction measures, while important, are not enough. A truly effective drug policy must involve multiple avenues to address addiction, ultimately aimed at discontinuing drug use. Dr. Gill lamented the desperate lack of treatment available to drug users and called for additional resources to train professionals in the particular challenges of drug use and its intersection with social issues such as mental health and the neuro-cognitive challenges users face. Dr. Gill questioned why harm reduction methods dominate the debate around drug use. She argued that some harm reduction practices are harmful, and made a compelling case that the introduction of harm reduction measures should impose accompanying duties to improve access to treatment, and wider systems of care and service delivery.

Executive Director of the Canadian HIV/AIDS Legal Network, Richard Elliot, provided a comprehensive background to the Insite legal challenge. The Canadian HIV/AIDS Legal Network was granted intervening status and played a political and strategic role in the struggle to ensure Insite’s continued operation when the Conservative government, the RCMP and the CPA opposed granting a continued exemption. Elliot provided a sobering analysis of the SCC’s decision and expressed disappointment that the Court imposed inappropriate criteria for allowing the operation of safe injection sites. According to Elliot, the need to consider the impact of safe injection sites on crime rates and expressions of community support or opposition create the potential for problems going forward if valuable and life-saving services offered to marginalized populations are beholden to the preferences and clout of a powerful majority. Ultimately, the SCC’s decision was a timid one, and the unanimous Court lacked the courage to follow through with what were its apparent views at the outset of the judgment. On a more positive note, Elliot celebrated the affirmation that drug users enjoy section 7 protection, and the clear indication that courts will step in when governments exercise their criminal law power in a way that contributes to preventable death and disease.

The presentation made by University of Victoria law Professor Margot Young was a highlight. Professor Young briefly spoke about the shift in discourse of drug addiction as a choice to drug addiction as a disease. Sharing some of Mr. Elliot’s reservations about the legal ramifications of Insite, Professor Young pointed out that the legal outcome is perhaps not as significant as the political message sent by the decision. Insite may be regarded as establishing a right to safe injection sites, creating a political barrier to governments looking to stop the advance of safe injection sites. While the SCC may have given the narrowest possible judgment in favour of Insite, the popular political imagination may provide a powerful counterbalance to this diffident judgment. Professor Young also expressed uneasiness regarding a doctrinal feature of Insite. The Controlled Drugs and Substances Act (CDSA) is constitutional by virtue of the availability of a discretionary exemption that the Minister of Health may grant for “medical or scientific purpose” or in “the public interest” (see section 56 of the CDSA). This scheme ultimately leaves rights vulnerable to supplication to the Minister and trust that this discretionary power will be exercised in a constitutional way. That the very mechanism rendering legislation constitutional in this context risks being exercised unconstitutionally, should be cause for alarm and uneasiness.

Dr. Carole Morissette, a longtime family doctor working with injection drug users in Montreal participated in a feasibility study showing that the establishment of safe injection sites provides a host of benefits. This project mobilized significant local partners, including CACTUS Montreal, one of the first needle exchange programs in North America. Mr. Jean-Francois Mary, the director of community organization and communication at CACTUS Montreal, provided first-hand accounts of the daily challenges of users and tracked the historical arc of political and social attitudes towards safe injection sites in Montreal. Mr. Mary perceives the current atmosphere for drug users as relatively regressive, contending this period has been characterized by increased antagonism between visibly marginalized people and law enforcement. Mr. Mary cited the recent public shootings of mentally ill street people in Montreal as evidence of law enforcement’s lack of understanding of mental illness, and the need to reframe the debate.

Mr. Mary also speculated about the impact of the forthcoming Omibus Crime Bill. Decreasing crime rates in Montreal are being accompanied by a curious rise in feelings of insecurity, attributed in part by Mr Mary to flawed perceptions about social issues around drug use and itinerancy, and the dissonance caused when police presence is ramped up to address social ills. Not so long ago, local law enforcement and coalitions of street people, sex workers, and addicts negotiated areas within the city where moratoriums were initiated on the antagonism between these groups and law enforcement. This is no longer the case as law enforcement is cracking down — “la judicialisation” is again carrying the day. An increased law enforcement presence and lack of available social services for the homeless and mentally ill have led to increased clashes between disorganized and visibly marginalized groups, such as drug users and law enforcement ill-equipped to deal with the complex intersectionality of issues such as poverty, homelessness, mental illness, and drug use. According to Mr. Mary, while in the past judges have consistently refused to incarcerate these individuals, the Crime Bill will reduce the availability of flexible solutions for drug users, thereby further criminalizing marginalized groups, and creating delays in an already lethargic judicial system.

Mr. Luc Beaucage, an RCMP officer of over 40 years, echoed some of these concerns and bemoaned the lack of training young officers receive in dealing with issues of addiction, itinerancy and mental illness. Calling for policies that encourage exchange and cooperation between law enforcement, users, community organizers, and health providers, Mr. Beaucage provided an essential voice in the call to modernize Canada’s overly myopic drug treatment policieies.

Some concluding reflections

Perhaps it is true that the SCC coalesced behind Insite  in the narrowest possible way, retreating from what could have been a more stalwart safeguard against criminal policies that needlessly harm vulnerable populations. However, the panelists seem to agree that Insite was a momentous symbolic victory. In light of Insite, there is potential for mounting conflict in Canada’s drug treatment policies as widespread support for drug treatment and harm reduction initiatives deepen, and the federal government continues to look to law enforcement to address social ills. Finally and despite any inadequacies, Insite indicates that governments should think twice before undertaking social policies that fly in the face of medical evidence.

The MJLH Presents Its 3rd Annual Continuing Legal Education Forum

Posted By The MJLH | RDSM Team – Feb. 1, 2012

PUBLIC PRIVATE PARTNERSHIPS IN THE MODERNIZATION OF QUEBEC HEALTH CARE: THE ROLE OF THE LEGAL PRACTITIONER

March 21, 2012, 18h30-20h15 followed by a wine and cheese.

The McGill Journal of Law and Health (MJLH) invites you to its 3rd annual Continuing Legal Education Forum (CLEF) on the role of Public Private Partnerships (P3’s) in the modernization of Quebec’s healthcare system. The goal is to provide legal professionals, healthcare practitioners, and students with a better understanding of the legal aspects underlying Quebec’s P3 model.

In exploring this topic, the CLEF will, as a case study, focus on the Redevelopment Projects of both McGill University Health Center and the Centre Hospitalier de l’Université de Montréal (commonly referred to as the Super-Hospital projects). The CLEF will be moderated by Professor Alana Klein of McGill’s Faculty of Law and will be of a bilingual nature.

Speakers will include:

Andrew Ford – Partner with Frasken-Martinault with an extensive background in negotiating P3’s agreements, both here in Quebec and beyond, will speak from a practicing lawyer’s perspective on the many legal aspects of the P3’s process.

André Dufour – President of Groupe immobilier santé McGill at SNC-Lavalin, will speak on the legal opportunities, challenges, and interests that embody private industry interests in P3’s.

Eric Michaud – Director at Infrastructure Quebec, will situate the historic progression of P3’s in Quebec and elaborate on the role that this ministry plays in establishing an evolving legal framework.

For further details, please contact: manager.mjlh@mail.mcgill.ca

Admission is free to this event

Supervised Injection Sites: Is the Supreme Court of Canada’s Insite Decision Off-Target?

Posted By Meara Conway – Jan. 20, 2012

Supervised Injection Sites: Is the Supreme Court of Canada’s Insite Decision Off-Target?

Meara Conway, Executive Online Editor

North America’s sole legally supervised injection site located in the heart of Vancouver’s Downtown Eastside (DTES) will remain open, says the Supreme Court of Canada (SCC). After over a decade of lobbying local, provincial and federal governments, Insite began operating as a harm reducing measure in 2003, managed jointly by the regional health authority and a local non-profit.

Insite operates under a discretionary exemption from prohibitions of possession and trafficking controlled substances under s. 56 of the Controlled Drugs and Substances Act (CDSA). The exemption for medical and scientific necessity was initially granted by the then Liberal federal government’s Minister of Health, and was subsequently extended to June 2008, whereupon the “tough on crime” Conservatives indicated they would deny future exemption applications.

Despite its detractors, Insite enjoys overwhelming popular support. Insite has been the focus of multiple studies published in over a dozen peer-reviewed journals which confirm again and again Insite’s success at saving lives by reducing the risk of drug overdose, reducing the spread of infectious diseases such as HIV/AIDS and hepatitis B and C, improving health without increasing the incidence of drug use, and reducing crime in the surrounding area.

On appeal from the British Columbia Court of Appeal, the SCC adjuticated whether the prohibitions on trafficking and possession of the CDSA (ss. 4(1) and 5(1)) are constitutionally applicable to the activities of Insite by virtue of Canada’s division of powers; and whether ss. 4(1) and 5(1) infringe the rights guaranteed by s. 7 of the Charter; alternatively the Court considered whether the Minister’s denial to grant an exemption infringed the claimants’ s. 7 rights. While Canada has power to enact criminal laws, decisions over health fall within provincial jurisdiction under ss. 92(7), (13), and (16) of the Constitution Act 1867.

Division of Powers

Unlike the British Columbia of Appeal, the Court opted not to engage in structural judicial review and decide the case along division of powers. Implicit in the judgment is the acknowledgment of interjurisdictional immunity’s ambiguous legacy. According to the Court, the premise of watertight cores is in tension with the evolution of Canada’s more adaptable concepts of double aspect and cooperative federalism and to “apply [interjurisdictional immunity] here would disturb settled competencies and introduce uncertainties for new ones.” In short, absent Charter issues, Insite’s ability to operate — notwithstanding health being a protected provincial undertaking — would yield to the federal paramountcy of the CDSA.

Charter claims

According to the SCC, while the prohibition on possession of drugs engages the claimants’ s. 7 rights, the Minister’s ability to grant targeted exemptions under s. 56 for a “medical and scientific purpose” or in the “public interest” preserves the constitutionality of the CDSA. However, the Minister’s refusal to extend a s. 56 exemption from the CDSA prohibitions was found to be an arbitrary and grossly disproportionate contravention of the claimants’ rights under s. 7 (life, liberty, security of person). As Insite staff would be operating within the legal definition of illegal drug possession under s. 4(1) of the CDSA due to their minimal involvement with clients’ drug use, they would be exposed to potential imprisonment. This threat to the liberty of Insite staff would in turn impact the s. 7 rights to security of person and life of clients who depend upon Insite for potentially lifesaving health services. Finally, the application of s. 4(1) to the clients of Insite would directly engage their s. 7 interests, as their ability to use Insite’s lifesaving and harm reducing services would depend upon an exemption to prohibitions on drug possession.

The Minister’s decision was found to bear no relationship to the objectives behind the CDSA, which have been identified as the protection of public health and public safety [Malmo-Levine]. In fact, in describing the Minister’s refusal as arbitrary, the Court stressed the exemption would rather further the dual objectives of public health and safety. Moreover, the refusal was found to be grossly disproportionate in its effects of denying Insite’s services in light of the overwhelming benefits of Insite and its complete lack of discernable negative impacts. In sum, the effect of the Minister’s refusal would have threatened the health and lives of Insite’s potential clients. Writing for a unanimous court, the Chief Justice drew attention to the failure of traditional criminal law strategies to meaningfully reduce drug use in the DTES, the overwhelming local support enjoyed by Insite, the absence of observable disadvantages of Insite’s operation, and even the reported reduction in crime by a local business.

The Court ordered the Minister to grant an exemption to Insite forthwith but held that any change in Insite’s operation would not bar the Minister from withdrawing it in the future.

Questions going forward

According to Chief Justice McLachlin: “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.” In fact, the decision may raise more questions than answers going forward.

According to the Court, the Minister must consider “whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, of the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expression of community support or opposition.” [152-153]

The next day, The Globe and Mail charged the SCC with forging “a new means to strike down law” and giving “judges a new tool for activisim… [ensuring] that legal waves would surge across several important Charter of Rights cases already in the courts…” This is a highly doubtful and exaggerated claim. While the case appears to be a triumph of evidence over ideology at first blush, the judgment is surprisingly narrow and raises concerns for those hoping it will open the door to similar initiatives across the country.

A Catch 22?

Insite was initially granted an exemption by the then Liberal government. During its operation, Insite was fortunate to be the subject of multiple studies. The SCC decision may have created a kind of Catch 22 going forward. In short, to amass the requisite evidence, future harm-reducing measures will need initial compliance and support from multiple regulatory and governmental levels. What is the potential for future pilot projects with a Conservative majority, increasingly emboldened to push its “tough on crime” agenda in Parliament?

What role for the community’s response?

Here in Quebec, the government has initiated a program to oversee the opening of facilities wherever deemed “socially acceptable ” by communities, according to Health and Social Services Minister Yves Bolduc. To be sure, the Court made considerable issue of the role of community support or opposition. The Chief Justice was right to point out that “Existence is bleak” in the DTES. Her sympathetic and exhaustive portrayal of life in the DTES was not the usual tone adopted in providing background and facts in SCC adjudications. The decision must be appreciated within the context of increased media coverage and mounting political pressure to address the DTES: media coverage of the Pickton murders, the Stolen Sisters campaign, and the escalating health crisis surely contributed to building community support and opening the door to a favourable decision for Insite. However, it should be noted that the DTES is something of an anomaly within Canada. Vancouver is well-known for its stark urban juxtaposition of staggering wealth and deep deprivation. Complex factors, including Vancouver’s mild climate, have made it a Mecca for homeless drug users. As the DTES is a veritable spatial ghetto, what are the implications for cities across Canada (such as Montreal) with more heterogeneity and dispersed pockets of poverty and drug use? Barring Montreal’s relatively liberal social attitudes to issues around drug use and crime, the potential for successfully launching safe injection sites will suffer if some citizens (though theoretically supporting such initiatives) can say “not in my backyard!”

In short, the Court’s enlightened discussion of choice and addiction,1 and the emphasis on the need to establish the health and safety benefits of a safe injection site, do not sit well with the need for local support. Judicial references to community standards have a checkered past. Community standards tests — read “the deep moral consensus of the nation, as interpreted by judges”2 — have historically provided considerable ammunition for regulating that which is considered immoral or indecent by invoking supposedly democratic entities (i.e. the community). While the kind of established and documented popular support discussed in Insite can be distinguished from the notion of community standards discussed by Valverde, I question why, short of harm, community support should bear upon the adjudication of the permissibility of Charter-infringing governmental action.

Since the above blog was first posted, predictable resistance has met efforts to set up safe injection sites in Montreal. A coalition of downtown residents associations is calling for an immediate moratorium on any attempt  to introduce supervised injection sites in their neighbourhood.3 This begs the question: how will the role of “community support” — barring a DTES anomaly — be negotiated in the future? When those who need the service most have no voice, no lobbying clout, and no influence to ensure that “community support” is truly representative, its central role in the Court’s reasoning could neutralize the apparent ground gained in Insite going forward.

 

———————————————————-

1 The SCC rejected the government’s moral argument that those who commit crimes should be made to suffer the consequences, opting rather for a more nuanced understanding of addiction as an illness rather than a choice. See paras 97-106.

2 See Valverde’s discussion of R v. Butler; R v. Mara; R v. Potts; R v. McKeigan  found in Valverde, “Law’s Dream of a Common Knowledge” Chapter 2 The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms 2003 Princeton University Press Woodstock, Oxfordshire 28 – 53. It should be noted that the “community standard” (of decency) test was formally rejected in R v. Labaye short of harm or signiicant risk of harm.

http://www.montrealgazette.com/Coalition+residents+seeks+moratorium+supervised+injection+sites+users/5871792/story.html

The McGill Research Group on Health and Law presents l’évolution du droit de la procréation assistée: La bioéthique a la française

Posted By The MJLH | RDSM Team – Jan. 1, 2012

The McGill Research Group on Health and Law will present its 4th Annual Lecture given by Frédérique Dreifuss-Netter, Justice of the first civil chamber of the Cour de cassation on assisted reproduction. The presentation will take place January 18, 2012 at 16h30 in room 312 NCDH. 

Space is limited. Kindly RSVP to rghl.law@mcgill.ca.

Le RGHL présente la quatrième conférence annuelle en santé et droit au sujet de l’évolution du droit de la procréation assistée. Frédérique Dreifuss-Netter, conseillère à la première chambre civile de la Cour de cassation, présentera mecredi le 18 janvier, 2012 à 16h30, salle 312 NCDH.

Le nombre de participants est limité. SVP confirmez votre présence à rghl.law@mcgill.ca.

For more information: http://www.mcgill.ca/channels/events/item/?item_id=212548.