Transcript Melissa Weatherbie Presentation on the Insite decision, 2011

Constitutional Law
Presentation by: Melissa Weatherbie
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.

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….
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.
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.
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
○
○

The Court of Appeal
○

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.
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