The Historic Insite Decision in a Nutshell
In short,
this morning we won a remarkable victory that will allow Insite to
continue to operate and save lives, prevent disease, provide access to
health care and recovery services and a host of other proven benefits. It was an important victory of evidence-based science over ideology.
Importantly, we’re hopeful that this historic decision may open the
doors to similar services throughout Canada and possibly into the United
States where the results of the SCC are being watched by harm reduction
advocates.
In May, I attended the Supreme Court of Canada as one of four lawyers
representing PHS Community Services, Dean Wilson and Shelly Tomic – the
three parties who began the legal action in BC Supreme Court in 2007
when faced with threats from the federal government to close down
Insite. Sitting in the Ottawa airport, I blogged about the journey
that took me through this case, first as a law student and then a
lawyer. As my first trip to the Supreme Court of Canada, I was thrilled
and honoured to be a part of this important case that affects so many
people and to assist the talented senior lawyers who put so much passion
into this case, Joseph Arvay and Monique Pongracic-Speier.
The media, of course, have been reporting on the decision this
morning with gusto. But, understandably, there has been some confusion
in the reporting of the actual legal decision that was handed down by
the Court. For the record, let me give a brief explanation of what was
decided (and what wasn’t) by the SCC:
In this case, we made two big arguments. The first was that Insite
was health care and health care is a “protected core” of provincial
power. As a protected core, health care decisions (like creating
Insite) couldn’t be negated by a federal law (the Controlled Drugs and Substances Act or CDSA)
. This constitutional doctrine is termed “interjurisdictional immunity”
(impress your friends with this if you dare) and has been relied on by
the courts less and less frequently in recent times and has never worked
in favour of provincial powers, only federal ones to date. We lost
this argument in the BC Supreme Court, and then surprisingly won it in
the Court of Appeal. In the Supreme Court of Canada, we lost it again.
The SCC said in this case to “apply it here would disturb settled
competencies and introduce uncertainties for new ones.” So, when the
media say that the SCC decision found that health care was in the
purview of the province and can’t be ousted by the criminal law, that’s
not really true. The SCC says that – absent any Charter issues – the CDSA applies and can oust health care because of another constitional doctrine: paramountcy.
The second argument, though, relied on the Charter. We said that the CDSA sections
were unconstitutional because they violate the Section 7 rights to not
be deprived of life, liberty or security of the person without being in
accord with the “principles of fundamental justice” (continue impressing
your friends). OR, the Minister’s failure to continue an exemption of
the CDSA was a Section 7 infringement. In the end, the SCC
found that while the prohibition on possession of drugs (but not
trafficking) does engage life, liberty and security of the person, it
wasn’t contrary to those principles because there was a mechanism in
place where the Minister could grant an exemption for purposes of
science, reasearch, etc. But, because the Minister refused to grant an exemption, this was contrary to the Charter Section 7 because this decision was arbitrary (undermining the purposes of the CDSA) and grossly disproportionate. So, in the end, the Court ordered the Minister (“an order in the nature of mandamus” – if you still have friends left after the first two, try this one out) to issue the exemption forthwith.
And, that’s the decision in a nutshell.
As for what the Insite decision means for the Minister allowing other
facilities in Canada and what steps Pivot will take in the future in
this area, I’ll leave that for a future blog post. But, the SCC seems
to have left open a door or at least a crack (paragraphs 152 and 153):
The dual purposes of the CDSA – public health and
public safety – provide some guidance to the Minister. Where the
Minister is considering an application for exemption for a supervised
injection facility, he or she will aim to strike the appropriate balance
between achieving the public health and public safety goals. 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.
The CDSA grants the Minister discretion in determining
whether to grant exemptions. That discretion must be exercised in
accordance with the Charter. This requires the Minister to 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, on the impact of such a
facility on crime rates, the local conditions indicating a need for such
supervised injection site, the regulatory structure in place to support
the facility, the resources available to support its maintenance, and
expressions of community support or opposition.
Unless you’ve been hiding with the radio and TV off and avoiding the web, you’ve already heard the 
