ThePHS Case and Federalism-Based Alternatives to Charter Activism

Dwight Newman*

Introduction To make this argument, first, I will argue briefly that the section 7 reasoning in the case In the recent case of Canada (AG) v PHS Com- is problematic vis-à-vis the Court’s own aim munity Services (PHS, often called the Insite of rendering a case-specific or site-specific re- Decision),1 the Supreme Court of Canada pur- sult4 and instead sets the Court onto a course ported to offer a case-specific decision limited of more intense judicial activism than has been to Vancouver’s Insite injection facility. The de- widely recognized. Second, I will argue that the cision saw the Court declare that the Federal Court’s decision not to engage fully in the feder- Minister of Health could not decline to contin- alism analysis involved in the case, particularly ue an exemption from narcotics provisions for on issues related to the doctrine of interjuris- the Insite Clinic, which provided an injection dictional immunity, leaves its federalism rea- site for narcotics users in Downtown Eastside soning laden with logical tensions. The inter- Vancouver. Despite the Court’s claim to want a jurisdictional immunity argument, unlike the case-specific decision, I argue in the present dis- section 7 argument, could actually have yielded cussion that by basing their decision on section a relatively unproblematic case-specific argu- 7 of the Charter, rather than using the alterna- ment that would have minimized the reach of tive federalism argument that was available, the the PHS ruling in the way the Court claims to Court adopted a more activist route with more have preferred while also attaining a more dem- disruptive future legal consequences. ocratically legitimate result. Some academic commentators on the case prior to the Court’s decision had commented The Activist Results of the Court’s favourably on possible federalism arguments Use of the Charter for the Insite clinic. However, their arguments tended to argue for using the case as one in My first claim, then, is that the section 7 reason- which to reshape federalism doctrine in the ing in PHS is more problematic than widely as- service of particular substantive or political val- sumed and that it marks a return, at least in this ues.2 In this paper, I argue that a traditional fed- instance, of intense judicial activism. Although eralism argument based on a legally consistent I will not engage in a full exegesis of the sec- application of interjurisdictional immunity3 tion 7 dimension of the case, since my focus is had more potential than the Court acknowl- actually on the federalism dimensions, it is im- edged and that had the Court adopted that fed- portant to say enough about it to support the eralism argument, it could have avoided a much claim at hand. In its decision, the Court did not more problematic section 7 analysis. use section 7 to analyze provisions of the Con-

Constitutional Forum constitutionnel 85 trolled Drugs and Substances Act5 itself. Rather, and avoids legalizing narcotics in some context it held that a section 7 violation arose from the from which there can be trafficking to others. Minister’s refusal to use provisions of that Act These arguments could be mistaken, but they to grant an ongoing exemption from the Act for cannot reasonably be quickly ignored. The Su- the Insite facility’s injection site.6 The conclu- preme Court engaged in next to no analysis of sion offered by the Court was that, with section the broader values at stake and simply deferred 7 interests clearly engaged because of potential to factual findings in a way that sets it up as prey prison terms and risks to health, the Minister’s to trial-level factual findings in future cases. refusal to grant the ongoing exemption was both arbitrary and grossly disproportionate and This prioritization of quick social science therefore violated the principles of fundamental reasoning over a more humanistic understand- justice so as to establish a section 7 violation.7 ing of life that leaves room for a range of values These conclusions rested on the findings of the not easily measured by social science actually trial judge that the facility did not contribute cannot remain case-specific or site-specific. -Un to increased crime rates in Downtown Eastside surprisingly, in addition to a surge of discussion Vancouver.8 With such a fact presumed at the about safe injection sites elsewhere, the case appeal, the Court considered it straightforward has served as a precedent in other contexts en- to conclude that the refusal of the exemption did gaging section 7. Because PHS permits intense not rationally advance the aim of reduced crime scrutiny of government policies for their effects or improved public safety (and was thus arbi- on particular individuals without leaving room trary) and that the costs imposed on individuals for a weighing of larger values, it establishes an whom the facility might help by shutting down intense form of scrutiny. That intense scrutiny the facility were grossly disproportionate to the now mandated in section 7 cases has already (non-existent) gain.9 helped motivate the British Columbia Supreme Court to strike down criminal law provisions In this reasoning, the courts inserted a against assisted suicide13 and the Ontario Court newly intensified scrutiny for government deci- of Appeal to uphold a trial judgment striking sions based on the courts’ own reading of ap- down various prostitution-related provisions.14 propriate balances between values like public More will no doubt follow. health and public safety.10 The Supreme Court made itself the ultimate arbiter of such points as The very people who pushed for the result whether “[t]he effect of denying the services of in PHS might yet get an unexpected result that Insite to the population it serves is grossly dis- they presumably do not want. Specifically, if the proportionate to any benefit that Canada might logical results are pursued on health care more derive from presenting a uniform stance on the broadly, one should note the statement in the possession of narcotics.”11 The trial judge’s find- PHS decision that “[w]here a law creates a risk ing that the facility did not impact on crime in to health by preventing access to health care, a Downtown Eastside Vancouver does not ac- deprivation of the right to security of the person 15 tually speak to the significance of a “uniform is made out [...].” To reach the PHS result, the stance.” The Supreme Court of Canada’s conclu- Court has interpreted past authorities into the sion in that regard followed only seven lines of proposition that any risk to health arising from reasoning, showing that the Court considered it barriers to health care access is now a section 7 unnecessary to engage with the significance of deprivation. This proposition has major impli- a uniform stance. In the United States Supreme cations for litigation related to the public health Court, there have been a set of rich arguments care monopoly. Thus, there are very significant concerning the significance of uniform applica- implications flowing from the PHS decision for tion of narcotics restrictions even in the context a range of issues. of significant rights claims on the other side of 12 It is frankly farcical to think of PHS as a site- the ledger. A uniform stance may be of value specific or case-specific decision. The Court’s because it emphasizes the seriousness with approach to section 7 has massive implications which the government regards narcotics issues for a range of major public policy issues, rang-

86 Volume 22, Number 1, 2013 ing from euthanasia to prostitution to the public “core” to this power; and that there was a risk of health care monopoly. In its approach to section creating the so-called “legal vacuums.”23 7, the decision is actually highly activist. The idea of interjurisdictional immunity operating in favour of the provinces (or, what Tensions within the Court’s I alternatively call “provincial interjurisdiction- Federalism Discussion al immunity”) does not differ from the main doctrine. It is also not a new idea, though the The brief federalism portion of thePHS decision Supreme Court of Canada had not fully rec- considers several different arguments, with in- ognized it until its 2007 decision in Canadian terjurisdictional immunity being the main one. Western Bank.24 There, the Court deliberately However, before reaching interjurisdictional affirmed the reciprocity of interjurisdictional immunity, the Court rejects an argument by immunity (federal and provincial) at multiple the intervener Attorney General of Quebec that points in the judgment.25 federal legislation becomes ultra vires within the specific context at issue.16 Second, it rejects a The Court’s failure to apply provincial inter- claim to the limited application of federal crim- jurisdictional immunity in PHS, however, will inal statutes when they conflict with provincial have given analysts some pause. If provincial statutes furthering the public interest.17 interjurisdictional immunity will not protect the core of provincial health care jurisdiction,26 Despite being a significant argument in they might wonder, then what will it protect? the case and one that had been adopted at the My argument is that, given the logical tensions Court of Appeal level, McLachlin CJC rejects in the Court’s discussion of interjurisdictional interjurisdictional immunity over the course of immunity in PHS, it seems that the Court sim- a few short paragraphs.18 In general terms, the ply tried to avoid using the doctrine rather than doctrine of interjurisdictional immunity essen- actually limiting it. But the claim of logical ten- tially says that one level of government’s legisla- sions in the Court’s approach necessitates a bit tion is inapplicable to the extent that it would of unpacking. intrude on the core of another level’s head of power, particularly in relation to a work, thing, In the past, application of interjurisdictional or undertaking under that head of power.19 It is immunity to protect the core of federal areas of thus a doctrine geared to reflecting the exclusiv- jurisdiction never gave rise to any particular ten- ity of powers, which is a well-established feature sion with the doctrine of federal paramountcy. of Canadian federalism flowing from the word- Indeed, interjurisdictional immunity protected ing of the Constitution Act, 186720 and general federal heads of power against the provinces, federalist principles. and so did federal paramountcy, therefore both worked as doctrines favouring centralization Instead of recognizing it on the facts of the of power. The relatively recent judicial recogni- case, McLachlin CJC takes the opportunity to tion of the reciprocal role of interjurisdictional express reasons for caution about interjurisdic- immunity, however, raises a new set of ques- tional immunity generally, referring to its pos- tions about the interaction between interjuris- sible tensions with trends to concurrency and dictional immunity and paramountcy. I have with so-called cooperative federalism21 and discussed some of these questions at length to the danger that it allegedly generates “legal elsewhere.27 But, putting the matter straightfor- vacuums.”22 wardly, provincial interjurisdictional immunity is inconsistent with any universal application On matters more specific to the case, the of federal paramountcy. In the case of a federal judgment cites three reasons for not recognizing statute that conflicts with provincial legislation interjurisdictional immunity in this instance: enacted in an area of exclusive provincial power, that the core of a provincial power over health it would be inappropriate to follow blindly the has not yet been identified in the jurisprudence; doctrine of federal paramountcy. If a court did that the claimants had not delineated a specific so, the doctrine of provincial interjurisdictional

Constitutional Forum constitutionnel 87 immunity that the Court in Canadian Western clarified provincial interjurisdictional immu- Bank went out of its way to rescue from judicial nity and its implications for paramountcy not oblivion would become meaningless. always working in favour of the federal govern- ment, McLachlin CJC’s judgment simply leaves If provincial interjurisdictional immunity those matters suspended. Indeed, in doing so, had been found to be applicable in PHS, it would the Court misses a route by which it could have have confirmed and clarified the doctrine. This avoided the potentially problematic section 7 would have been particularly the case if the approach it adopted. government had made explicit the provincial legislative foundations for the operation of the Insite clinic (without which no paramountcy Missed Possibilities for a issue arises). The Court is explicit that para- Federalism-Based Resolution of the mountcy would favour the criminal law over any provincial jurisdiction in the case.28 Yet, Case the Court goes out of its way to say that “[w]hile Some might of course argue that the Court had the Attorney General of Canada did not rely on good reason for not applying interjurisdictional this principle [of federal paramountcy], it mer- immunity in favour of the province in this case. 29 its mention.” Then, the Court goes on to say The PHS judgment, which starts by referring to that “[a] detailed analysis of paramountcy is un- interjurisdictional immunity as having been 30 necessary in this case.” It would seem that the “confine[d],”33 actually does admit that “[w]hile Court deliberately attempts to keep alive, albeit the doctrine of interjurisdictional immunity on life support, the notion of exclusive federal has been narrowed, it has not been abolished.”34 paramountcy. But to do so is merely to dodge Indeed, there is a restatement of its availability the question that must arise based on the rec- for provincial powers.35 However, there is a sug- ognition of provincial interjurisdictional im- gestion that caution should be exercised in rela- munity and even the readiness to consider an tion to interjurisdictional immunity, with one argument for its application in PHS. The divi- statement going beyond caution to say that “be- sion of powers discussion in PHS is laden with fore applying the doctrine of interjurisdiction- logical tensions in so far as the Court goes out of al immunity in a new area, courts should ask its way to raise an argument that is inconsistent whether the constitutional issue can be resolved with the provincial interjurisdictional immuni- on some other basis.”36 This seemingly includes ty argument that was actually raised in the case. even section 7 of the Charter! The Court in PHS, with its attention drawn The reasons for this caution are not all to section 7, is not especially focused on the in- equally strong. Notably, the “legal vacuums” terjurisdictional immunity question, because that keep appearing as a sort of spectre haunt- the argument is not needed for the claimants’ ing the Court when it considers interjurisdic- success in the result. Perhaps because inter- tional immunity are an underdeveloped notion. jurisdictional immunity is not a strong focus, As described by McLachlin CJC in the specific the Court does not explore the interaction of context, “[e]xcluding the federal criminal law interjurisdictional immunity and paramount- power from a protected provincial core power cy. The judgment does not follow the rather pe- would mean that Parliament could not legis- culiar majority guidance in Canadian Western late on controversial medical procedures, such Bank concerning the order in which to analyze as human cloning or euthanasia. The provinces paramountcy and interjurisdictional immunity might choose not to legislate in such areas, and 31 issues. The majority there instructed that a indeed might not have the power to do so.”37 32 court should commence with paramountcy. Whether a core of provincial health jurisdiction Instead, the Court now discusses interjurisdic- would have to include euthanasia-related issues tional immunity first and then makes a quick is a complex question to consider on another side note about paramountcy. occasion. What arises more easily in a consid- Though PHS could have been the case that eration of this passage is a blurring of categories

88 Volume 22, Number 1, 2013 between areas where provinces “might choose even if that decision were within provincial not to legislate” and those where nobody has a jurisdiction. It would remain circumscribed power to legislate. If a matter were found to be and site-specific in that the possibility would at a core of a provincial area of jurisdiction, the apply only in the context of injection sites es- provinces presumably would have the power to tablished by provinces that made this decision legislate on it. If they “choose not to legislate,” about particular sites within their provincial all the references to a “legal vacuum” amount democratic processes. In contrast, the section 7 to a reference to the possibility of not having Charter conclusion reached by the Court is not everything regulated. Why constitutional ju- confined in that way but could apply anytime risprudence should be driven by a worry about anybody can generate evidence of the merits of governments making a democratic choice to a particular site that swayed the courts, regard- leave some particular matter within the realm less of the views of any democratically elected of human freedom rather than that of govern- government. ment bureaucracy is, frankly, unclear. The federalism-based approach would have There is a more compelling reason refer- avoided generating the section 7 precedent that enced in the Court’s judgment for not apply- now has the previously discussed judicial activ- ing interjurisdictional immunity in this case, ist implications for such contexts as prostitution, namely the uncertainty of the shape of a “core” euthanasia, and health care. A federalism-based of provincial health jurisdiction. Were such a approach would have been easily discernible in core undefinable, that fact would be a very good the circumstances of the case and truer to the reason for questioning the use of interjurisdic- purported aims of the Court in terms of a de- tional immunity. However, on the facts of the cision with more limited implications in future case, had the Court sketched out a core of pro- legal decision-making. vincial health care jurisdiction, it might have been able to do so in a carefully circumscribed This argument is of course simply an in- way that would have had fewer consequences stantiation of broader points one could make than the implications that are sure to flow from about the possible reasons for courts to adopt their decision using section 7 of the Charter. In- federalism-based alternatives to Charter con- deed, there is an established jurisprudence on clusions where they can do so. Charter-based a provincial jurisdiction over drug treatment restrictions on governments are of course man- from a health care perspective,38 and the Court dated when genuinely dictated by the Charter, could simply have developed a core of this more but they are always, to a degree, democracy- specific provincial drug treatment power for the restricting. By contrast, federalism-based deci- very specific circumstance in which a province sions are always a choice as between different chooses to use an injection site as part of its democratically-elected governments and are health care policy. thus always democracy-supporting. Where a narrow federalism-based ruling can easily be The difficulty is that in their arguments, the substituted for a Charter­-based ruling, there claimants did not render this core more certain. will thus generally be democratically-based The results of an ongoing uncertainty regarding reasons for the courts to opt for the federalism- provincial health jurisdiction affected the pos- based argument in place of the Charter-based sibility for a strong interjurisdictional immu- argument. nity argument. And that is one of the practical consequences identifiable from the case. In or- der to seek the benefits of the doctrine, parties Notes must make clear the scope and consequences of * Professor of Law, University of Saskatchewan. the interjurisdictional immunity claim at issue. B.A. (Reg.), J.D. (Sask.), B.C.L., M.Phil., D.Phil. (Oxon.). Member of the Ontario and Saskatch- The specific circumstance in which a prov- ewan bars. I thank Sarah Burningham, Mark ince chooses to use an injection site as part of Carter, Ubaka Ogbogu, and Michael Plaxton for its health care policy would remain limited comments on a prior draft of the paper. I also

Constitutional Forum constitutionnel 89 thank Patricia Paradis and the University of wherever and whenever they wish. Nor is it an Alberta Centre for Constitutional Studies for the invitation for anyone who so chooses to open a opportunity to present a prior draft of the paper facility for drug use under the banner of a ‘safe in the context of the Centre’s richly stimulating injection facility’).” 2012 Constitutional Law Symposium. 5 Controlled Drugs and Substances Act, SC 1996, c 1 2011 SCC 44, [2011] 3 SCR 134 [PHS cited to 19. SCC]. 6 PHS, supra note 1. 2 See e.g. Hester Lessard, “Jurisdictional Justice, 7 Ibid at paras 127-128. Democracy and the Story of Insite” (2010) 19 8 Ibid at para 131. Const Forum Const 93 (arguing for more con- 9 Ibid at paras 131-33. textual orientation within federalism analysis); 10 The section 7 discussion in the case is dramatic Gillian Calder, “Insite: Right Answer, Wrong in two ways. First, the approach to section 7 I am Question” (2010) 19 Const Forum Const 113 analyzing has significant implications. Second, (arguing for culturally sensitive federalism analy- the case also significantly opens up new kinds of sis). I also note Alana Klein’s recent conference arguments in terms of the types of constitutional presentations (such as her “Section 7 of the Char- challenges available, with a lower court recently ter and the Principled Assignment of Legislative describing them as follows: “Constitutional chal- Jurisdiction”, presented at the Law and Society lenge to the individual application of a provision Association Meeting in Honolulu in June 2012), of the Charter to a given exercise of discretion is in which part of her argument appears to be for possible where a Charter right is implicated by a Charter­-influenced division of powers analysis. the decision involved,” R v Serdyuk, 2012 ABCA One important exception to this generalization 205 at para 19 (Watson JA, dissenting). See also is from Bruce Ryder, who briefly affirms the UFCW, Local 401 v Alberta (AG), 2012 ABCA importance of more formal federalism rules even 130, para 40 (deriving the principle that a par- in contexts like this case: “Equal Autonomy in ticular discretionary decision can be scrutinized Canadian Federalism: The Continuing Search for for conformity with Charter values). However, I Balance in the Interpretation of the Division of will not even venture into this second dimension. Powers” (2011) 54 Sup Ct L Rev 565 at 594 (not- 11 PHS, supra note 1 at para 133. ing a “yawning gap between the federal principle 12 See especially Oregon (Department of Human and the interjurisdictional immunity doctrine” Resources) v Smith, 494 US 872 (1990) (with, aside and calling for doctrinal steps that would reduce from the less accommodative approach of Scalia tensions between the federal principle and the J toward religion, even the opinion of O’Connor current shape of the latter doctrine). J upholding an approach oriented to significant 3 For an explanation of interjurisdictional immun- religious exemptions from legislated require- ity, see Dwight Newman, “Canada’s Re-Emerging ments nonetheless allowing for the importance Division of Powers and the Unrealized Force of of uniform application of drug laws so as to Interjurisdictional Immunity” (2011) 20 Const. override that consideration, and containing a Forum Const. 1 at note 5. (stating that “[i]nter- number of points in favour of the significance of jurisdictional immunity is the doctrine that one that uniform application). level of government’s legislation is inapplicable to 13 Carter v Canada (AG), 2012 BCSC 886, passim. the extent that it would intrude on the core of the (numerous references to the PHS decision as other level’s head of power, particularly in rela- helping to support claims that section 7 analysis tion to a work, thing, or undertaking under that had changed significantly since the Court upheld head of power.”) See also the Centre for Consti- this restriction in Rodriguez v British Columbia tutional Studies’ keyword entry for interjurisdic- (AG), [1993] 3 SCR 519). tional immunity at http://www.law.ualberta.ca/ 14 Canada (AG) v Bedford, 2012 ONCA 186, leave to centres/ccs/keywords/?id=71. appeal to SCC granted, 2012 CanLII 64742 (with 4 See PHS, supra note 1 at para 140 (trying to PHS serving as a foundation for the Court’s rea- minimize the reach of the decision and stating soning on section 7, but with the case to be tested that its application even to other safe injection before the Supreme Court of Canada). facilities would need to be based upon very 15 PHS, supra note 1 at para 93. The Court’s para- specific evidentiary support: “[t]he conclusion graph goes on to cite a number of cases on the that the Minister has not exercised his discretion point: “[...] Morgentaler (1988), at p. 59, per Dick- in accordance with the Charter in this case is not son C.J., and pp. 105-6, per Beetz J.; Rodriguez a licence for injection drug users to possess drugs v British Columbia (Attorney General), [1993] 3

90 Volume 22, Number 1, 2013 S.C.R. 519, at p. 589, per Sopinka J.; Chaoulli, at para. 43, per Deschamps J., and, at paras. 118-19, per McLachlin C.J. and Major J.; R. v Parker (2000), 188 D.L.R. (4th) 385 (Ont C.A.).” 16 PHS, supra note 1 at paras 50-51 (stating at para 51 that Quebec “appears to confuse the constitu- tional validity of a law with the applicability of a valid law”). 17 Ibid at para 55 (suggesting that the authorities support such limitation only where the federal statute makes room for the provincial statutes). 18 Ibid at paras 57-70. 19 I offer the same brief-form explanation in Dwight Newman, “Canada’s Re-Emerging Division of Powers and the Unrealized Force of Reciprocal Interjurisdictional Immunity” (2011) 20:1 Const Forum Const 1. 20 See e.g. Constitution Act, 1867, s 91 (“the exclu- sive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerat- ed...”), section 92 (“In each Province the Legis- lature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next thereinafter enumerated...”). 21 Ibid at paras 62-63. 22 Ibid at para 64. 23 PHS, supra note 1 at paras 67-69. 24 Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3 [cited to SCC]. 25 Ibid at paras 35, 67, 77. 26 PHS, supra note 1 at paras 67-68. 27 See especially Newman, supra note 19, passim. 28 See PHS, supra note 1 at para 72. 29 Ibid at para 71. 30 Ibid at para 72. 31 Canadian Western Bank, supra note 24 at paras 76-78. 32 This instruction has been ignored in other judgments as well, arguably rightfully so. See e.g. Canada (AG) v Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 SCR 536. 33 PHS, supra note 1 at para 61. 34 Ibid at para 65. 35 Ibid. 36 Ibid. 37 Ibid at para 69 [emphasis added]. 38 This is clear from Schneider v The Queen, [1982] 2 SCR 112, in which the court held that a province could establish community-based treatment for heroin users based on a provincial aspect in what might have otherwise seemed an area covered by the federal criminal law power.

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