P.H.S. Community Services v. Canada is a fascinating and nuanced legal case wherein the Supreme Court of Canada examined the jurisdictional boundaries of sections 91 and 92 of the Constitution Act, as well as the limitations of interjurisdictional immunity. In 2008, Insite, a provincially run safe-injection site for intravenous drug users in British Columbia which had received federal Minister of Health exemption from CDSA provisions on possession and trafficking the past 5 years, was denied an exemption under the new Conservative Minister of Health. P.H.S. Community Services, which runs Insite and is a part of the Provincial government, appealed to the British Columbia Superior Court to reverse the decision on the grounds that denying Insite an exemption violated the staff’s Charter section 7 right to liberty, and the client’s section 7 rights to life and security of the person. This case is a good example of how the SCC makes decisions with a keen focus on future precedent. While the SCC unanimously sided with P.H.S. Community Services, they did so in such a way that did not explicitly set precedent for Provinces to override Federal legislation. Ultimately, the decision came down to Insite’s glowing record of success and efficient management, scoring a big win for evidence-based policy in the application of justice and community-focused healthcare.
Insite is a provincially run, supervised injection site for intravenous drug users operating in Downtown Vancouver; providing public health services such as clean needles, supplies, a sanitary environment and access to medical and social services. It was established in 2003 in response to an IV-drug related breakout of HIV in Vancouver’s Downtown East Side and was the product of cooperation between local, provincial and federal health authorities, as well as local law enforcement and community activists (Bayat, 2019). In order for Insite to operate in violation of the Controlled Drugs and Substances Act, which prohibits the possession of illegal narcotics, the Minister of Health had to provide an exemption to the legislation that was to be renewed every year. This exemption was granted from 2003 until 2007, but then, under the new Conservative Minister of Health, Insite’s exemption of federal drug law was rejected. Insite successfully brought action at trial, which was appealed by the Federal government, and by 2011 the case had reached the chambers of the Supreme Court of Canada (Insite, 2011). The SCC ultimately decided that the provincial authority to provide healthcare services did not in fact provide P.H.S. with interjurisdictional immunity, as the definition was too vague and could be applied to a number of unrelated cases (Barker Walker & Warkentin, 2014). They did, however, uphold that the failure to renew Insite’s exemption to the CDSA violated the s.7 Charter rights of both the staff of Insite and their clients (Insite, 2011). They also held that removing these services would do the public harm and would not serve the intended purpose of the CDSA, which is to reduce the harm done to communities by illegal drug use (Daly, 2014).
After the MoH’s refusal to renew Insite’s exemption to the CDSA, P.H.S. successfully brought action against the federal government in the BC Superior Court. There they declared that s.4(1) (possession) and s.5(1) (trafficking) of the CDSA violated Insite’s staff and client’s s.7 Charter right to liberty, life and security of person (Insite, 2011). Insite was granted constitutional exception from the CDSA through interjurisdiction immunity, and so the Federal government appealed to the BC Court of Appeals. The BCCA upheld the infringement of s.7 rights but found the law overbroad rather than arbitrary and also held that Insite was protected by interjurisdictional immunity as it is an undertaking of Provincial constitutional power over hospitals (Insite, 2011). Ultimately, the case reached the Supreme Court, which did not uphold the interjurisdictional immunity so as to not set a precedent for or against the use of IJI, but it did agree with the situational violation of s7 Charter rights through the denial of Insite’s exemption to the CDSA (Insite, 2011).
The main legal issues here, particularly with regards to the decision by the SCC, concern the separation of jurisdictional authority laid out in s.91 and s.92 of the Constitution Act, whether the activities of staff and clients within Insite constitute a core of provincial jurisdiction over health, whether s.4(1) and s.5(1) of the CDSA infringe upon s7 Charter rights and if so, is that covered under s.1, and finally, is the MoH’s decision to not grant Insite exception to the CDSA an infringment of s.7 Charter rights, and if so, is it covered under s.1 (Insite, 2011).
It was the ruling of the SCC to unanimously uphold that the MoH’s decision to not renew Insite’s exemption to the CDSA violated their staff’s section 7 right to liberty and their client’s section 7 right to life and security of person (Insite, 2011). They did not however, see sections 4 and 5 of the CDSA as violations of section 7 of the Charter in a broad sense, and also determined that Insite did not have Interjurisdictional Immunity (IJI) from CDSA, so as to not set a precedent with regards to the limitations of Federal or Provincial powers (Bayat, 2019). In their decision, the SCC noted that healthcare is too broad and expansive a subject to be distinguished as a core of provincial powers in assessment with the doctrine of IJI. (Daly 2014) In the past, IJI decisions have only ever favored the federal government and this decision was made to neither strengthen, nor weaken the cores of federal and provincial jurisdiction (Bayat, 2019).
A large part of the reasoning behind the Supreme Court’s decision to uphold Insite’s exception to the CDSA was due to their impeccable record of evidence-based treatment and community harm reduction. By 2010, at the time the SCC was deciding on the case in question, Insite had recorded, “over 300,000 unique visits by its users with over 500 supervised injections occurring daily. Of the 221 overdoses that occurred that year, there were no fatalities due to the presence of trained medical staff” (Jones, 2010). It has also resulted in a number of secondary benefits to the community, including, “reductions in public disorder, reductions in syringe sharing, reductions in violence against women, increased condom use, increased use of detox programs and addiction treatment, the successful management of over 100 overdose, and a 35% decrease in overdose related fatalities. Furthermore, Insite’s presence has seen no increase in community drug use patterns, no increase in initiation into injection drug use, and no increase in drug-related crime” (Jones, 2010). Today, Insite continues its legacy of successful harm reduction, with just under 190,000 visits by over 5,500 individuals in 2018, as well as 1,466 overdose interventions and 3,700 clinical interventions (Vancouver Costal Health, 2019). In addition to their normal services, Insite now offers testing kits for street heroin that may be tainted with fentanyl strong enough to cause an overdose in small amounts, even among long-term drug users. This has helped to reduce the damage caused by the opioid crisis, which in 2016 was declared a public health emergency and killed 1473 British Columbians in 2017 alone (Vancouver Costal Health, 2019).
So why then, if Insite has such a proven record of success, was the SCC so worried about setting precedent for other provincial safe injection sites? In the unanimous decision, Chief Justice McLachlin, “held that refusing to grant the exemption was arbitrary: the facts ‘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’” (Daly, 2014). However, “The Court unanimously ruled that interjurisdictional immunity was inapplicable to provincial healthcare because, among other considerations, these undertakings were too broad for the ‘restrained application of the doctrine called for by the jurisprudence” (Barker Walker & Warkentin, 2014). This means that while the court supported the exemption of Insite from the CDSA, they did not want to give Provinces the power of Interjurisdictional Immunity with regards to the application of healthcare. As it stands, all cases involving the application of IJI have always regarded the ability of the federal government to perform its core competencies in violation of Provincial section 92 authority, never the other way around. “While the Supreme Court found a Charter-based exemption for Insite, it determined that interjurisdictional immunity was ‘neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government’” (Duerhammer & Styler, 2014). This, however, has been criticized as an overly cautious approach to a situation that is a near perfect use case for the application of Provincial IJI. Huddard J.A. of the BC Court of Appeal stated of this case, “If interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers” (Insite, para 33). Essentially, here he is saying that while the SCC wanted to avoid setting precedent for the application of IJI, they in fact did so by determining that even this clear a case of jurisdictional powers was still not appropriate for IJI in favor of Provincial powers. This leads to my final topic in the discussion of this case, namely the centralization of Canadian federalist powers.
Over the past few decades, many legal scholars have criticized the SCC’s tendency to rule in favor of the Federal government in disputes between Federal and Provincial powers, creating a centralization of power at the Federal level which goes against the intention of our constitution. In their reasoning behind the decision in P.H.S. v Canada, the SCC wrote that, “before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis” (Insite, para 65 2011). However, on a separate case known as Quebec v Lacombe, C.J. McLachlin wrote, “the test [for IJI] is whether the provincial law impairs the federal excessive of the core competence” (Atwal, 2015). This definition would exclude the reciprocity of IJI, on which fellow SCC judge Marie Deschamps wrote the following, “With all due respect for the Chief Justice, I believe that she is getting away from both the letter and the spirit of Canadian Western Bank when she suggests that the doctrine of interjurisdictional immunity is limited to the protection of federal powers” (Atwal, 2015).
The three reasons given for rejecting the notion of IJI applying to Provincial healthcare services were as follows; “1. The Court’s reluctance to identify new ‘cores’ of power where IJI applies; 2. The parties in the case failed to identify a delineated ‘core’ of a ‘broad and extensive’ provincial power over healthcare; 3. The desire to avoid potentially creating legal vacuums where Parliament could not legislate on controversial medical procedures” (Atwal, 2015). Again though, some see this explanation as insufficient, and claim the refusal to apply IJI to the Insite case is a clear statement that IJI is asymmetrical and only to be used to protect federal heads of power from provincial intrusion (Duerhammer and Styler, 2014). This undermines the principle of subsidiarity, as Provincial governments often have more appropriate responses to their own healthcare needs and can react more quickly with community feedback than a Federal power applying broad strokes (Duerhammer and Styler, 2014). Ultimately, “the Supreme Court’s ruling in the Insite case has served to further the centralization of powers by overlooking the asymmetrical application of interjurisdictional immunity as a justification for the doctrine’s narrowing scope, declining to apply the doctrine in a case where federal law would shut down a critical provincial undertaking and by providing little to no framework for future application of the doctrine as it relates to the protection of provincial heads of power” (Duerhammer and Styler, 2014).
All facts considered, Canada v P.H.S. Community Services Society is a massively important case to B.C., involving the separation of powers in a federalist system and the application of interjurisdictional immunity. While the SCC decided in favor of PHS and Insite, they did so in a way that did not provided IJI protections for provincial powers seeking to create their own safe injection sites, and this has been criticized as one in a series of decisions made in the past 20 years to centralize Federal power and reduce the power of Provincial governments. As for now, Insite will continue doing its good work of evidence-based treatment and harm reduction, but whether IJI will ever be applied in favor of the provinces is still yet to be determined.
Canada (Attorney General) v. PHS Community Services Society,  3 SCR 134, 2011 SCC 44 (CanLII), <http://canlii.ca/t/fn9cf>, retrieved on 2019-10-03
Bayat, Navid. (2019) Summary of Canada v PHS Community Services Society SCC 2011 [Insite] Retrieved from https://www.canliiconnects.org/en/summaries/65237
Atwal, Harjot. (2015) The “Return to Unanimity” in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s “Oversight”. Retrieved from https://www.canliiconnects.org/en/commentaries/36298
Daly, Paul. (2015) The A to Z.1 of Safe Injection Sites in Canada. Retrieved from https://www.canliiconnects.org/en/commentaries/30332
Jones, Simon. (2012) Insite: A Harm Reduction Success Story. Retrieved from http://med-fom-ubcmj.sites.olt.ubc.ca/files/2015/11/ubcmj_3_2_2012_47-48.pdf
Vancouver Coastal Health. (Accessed 2019) Insite User Statistics. Retreived from http://www.vch.ca/public-health/harm-reduction/supervised-consumption-sites/insite-user-statistics
Duerhammer, Kristen & Styler, Daniel. (2014) An Analysis of the Inapplicability of Interjurisdictional Immunity to the Insite Decision and its Implications for the Further Centralization of Powers. Retrieved from https://www.canliiconnects.org/en/commentaries/35040