1. Constitutional Law Presentation by: Melissa Weatherbie

2. Case Background:  Due to Crisis level drug issues in a Vancouver area in the 1990’s a Safe Injection Site was developed and implemented in 2003.  Operating a supervised injection site required: Exemption from the prohibitions of possession and trafficking of controlled substances under s. 56 of the Controlled Drugs and Substances Act (CDSA) (which provides for exemption at the discretion of the Minister of Health, for medical and scientific purposes). Insite received a conditional exemption in September 2003. The Minister granted temporary extensions in 2006 and 2007. In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this action.

3. Initial Case Outcomes:  The trial judge found ss. 4(1) and 5(1) of the Controlled Drug and Substances Act (CDSA) violated the claimants’ rights under s. 7 of the Charter. He granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws.  The Court of Appeal dismissed the appeal and held the doctrine of interjurisdictional immunity applied.  Which lead to the Supreme Court of Canada Case….

4. Argument:  The claimants, the operator and clients of Insite, argued that the division of powers makes the federal CDSA prohibitions inapplicable to the provincial health activities of Insite staff and patrons.  The claimants also submitted that sections of the CDSA were of no effect because they violated the claimants’ s.7 Charter rights. Outcome of SCC Case:  The appeal and the cross appeal were dismissed.  The Minister of Health was ordered to grant an exemption to Insite under s. 56 of the CDSA.  Basically… Interjurisdictional immunity does not apply and the CDSA does not violate the claimants’ s.7 rights, however the Minister’s failure to provide an exemption does.

5. Comments  The SCC approach omitted deciding on the constitutional validity of CDSA as well as Interjurisdicational immunity. The SCC approached this case as Section 7 of the charter being violated when the minister did not grant exception.  As a result the SCC bypassed any rulings that would impact other matters that may relate. The justices ensure that Criminal law being a federal issue and health care being a provincial issue does not influence this case as it could have a huge impact on future cases and other laws.  A section 1 Charter argument was not made, however it is interesting to note in the reasons that such an argument would succeed. If incites exemption was taken away then they would shut down, and as a result there would be in increase in the drug related illnesses and negative impacts in the population of that area.

6. Question: The three levels of court decisions on this matter had very different perspectives but all resulted in Insite remaining operational. What do you think are some of the positive and negative impacts of each of the rulings? (Specifically in relation to Constitutional Rights and Jurisdiction) Trial Judge ○ Found: ss. 4(1) and 5(1) of the CDSA violated the claimants’ rights under s. 7 of the Charter. ○ Ordered: Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. The Court of Appeal ○ Found: Dismissed the appeal and held that the doctrine of interjurisdictional immunity applied Supreme Court of Canada ○ Found: The appeal and the cross appeal are dismissed. ○ Ordered: The Minister of Health to grant an exemption to Insite under s. 56 of the CDSA forthwith