Jurisdictional Justice, Democracy and the Story of Insite
Hester Lessard*
Insite, North America’s first legally sanctioned relied on the Charter to find in Insite’s favour. safe injection site, opened its doors in 2003. It They determined that the application to Insite did so after several years of political struggle by clients of CDSA provisions prohibiting posses- a network of community groups in Vancouver’s sion of illegal drugs would violate the section 7 Downtown Eastside (DTES), the neighbour- Charter rights in a manner that cannot be jus- hood it serves. The grassroots movement se- tified in a free and democratic society. Rowles cured support at municipal, provincial, and fed- JA also agreed with her colleague Huddart JA’s eral levels of government. The latter expressed analysis, which found in Insite’s favour on the its approval by granting an exemption that pro- basis of the division of powers. As Huddart JA tected Insite staff and patients from prosecu- declined to explore the Charter arguments, her tion for possession of illegal substances under reasons represent the majority position at the the federal Controlled Drugs and Substances Act Court of Appeal. Huddart JA held that the sub- (CDSA).1 The remarkable political consensus in ject matter of Insite lies at the core of the exclu- favour of Insite came apart in 2008 when the sive jurisdiction of the provincial government federal government, after the election of the over hospitals and health and is thus immune, Harper Conservatives, declined to extend the under the doctrine of interjurisdictional immu- exemption. As a consequence, Vancouver Area nity, from impairment by the operation of the Network of Drug Users (VANDU) and the Port- CDSA. land Hotel Community Services Society (PHS), the non-profit that operates Insite, along with There was one dissent—by Smith JA—at the two Insite clients, brought an action against the Court of Appeal. She rejected the interjurisdic- federal government in the B.C. Supreme Court. tional immunity argument (as indeed did Pit- The provincial government intervened.2 The key field J at the trial level) by referring to recent arguments were that either the CDSA is inappli- decisions of the Supreme Court of Canada that cable (and therefore the exemption is unneces- have urged a restricted application of the doc- sary) because primary jurisdiction over health trine. She also rejected the Charter argument. resides with the province, or that the applica- Here, she found that although section 7 inter- tion of the provisions prohibiting possession in ests in life, liberty and security of the person the federal statute violates the section 7 Charter are threatened by the application of federal nar- rights3 of clients seeking treatment at Insite. cotics prohibitions to clients seeking treatment at Insite, those prohibitions are nevertheless In PHS Community Services Society v Cana- consistent with the principles of fundamental da (Attorney General), PHS Community Servic- justice. es Society was successful at trial4 and at appeal.5 The case will be heard by the Supreme Court of The considerable judicial support for - In Canada on May 12, 2011.6 Both Pitfield J at the site—three out of the four judges that have pre- trial level and Rowles JA at the Court of Appeal sided so far—is significant. Despite the disagree- ment over which constitutional path to take, the
Constitutional Forum constitutionnel 93 support speaks to the compelling nature of the ical engagement at the community level where justice claim underlying the doctrinal argu- two crucial elements are present. The first ele- ments. However, choice of constitutional path— ment is the voicelessness or political marginal- the Charter or the division of powers—is also ity of the community in question in relation to significant as, at least theoretically, it should ex- conventional institutional channels of demo- plain why we, as constitutional citizens, should cratic change. The second element is the fun- care deeply about the dispute over Insite. The damental nature of the interest at stake for that Charter and its underlying constitutional val- community. Both elements are present in the ues would seem to speak directly to the dignity story of the struggle of the user community to harms and survival interests of the individuals establish Insite. who depend on Insite for treatment. Further- more, when compared to Charter jurispru- My argument that federalism jurisprudence dence, much division of powers jurisprudence is should incorporate a fuller, more substantive arid and technical. There is, perhaps, no better consideration of democratic principles paral- example of this than the doctrine that provides lels one that is now commonly made in rela- the foundation for the Court of Appeal’s major- tion to rights jurisprudence and to the amend- ity decision, namely, the interjurisdictional im- ing process, namely, that social movements are munity doctrine. Nonetheless, I think there is and should be key actors in shaping the sub- an issue of jurisdictional justice that eludes the stantive content of constitutional norms and 7 language of rights emanating from the Charter principles. I would, however, go further and and that fits more comfortably within the divi- argue that where the core principles animating sion of powers framework. the constitutional text are rooted in concerns about democracy, there are strong reasons for Jurisdictional issues in federalism disputes judges to take explicit account of such political deal with the question of where political au- engagement. thority to address a particular issue resides. In this case, the jurisdictional dispute revolves I will start by laying out key aspects of the around issues of addiction and its treatment in story of the harm reduction movement that Vancouver’s Downtown Eastside (DTES), and formed in the DTES in response to a health by implication, elsewhere in the province. I crisis caused by addiction. Drawing on a rich want to suggest that the political mobilization secondary literature, including ethnographic, at the grassroots level that led to the establish- geographic and drug policy studies, I will focus ment of Insite should be a contextual factor in only on the early efforts of the community and deciding the jurisdictional question and hence its initial political mobilization (roughly from in deciding whether the interjurisdictional 1988 to 2000) in the face of very little support immunity doctrine protects the province’s ex- from the political establishment and seeming clusive jurisdiction over health care. My con- public indifference to the rising death toll from ceptual point is straightforward. Jurisdictional addiction-related causes. The subsequent steps disputes between the provinces and the fed- in gaining political support for Insite also in- eral government are commonly understood to volve democratic processes both in and outside be shaped by the principle of federalism—the of government. However, this later chapter in commitment to reconcile unity with diversity— the story is not as germane to my main concep- as well as by principles of democracy. The juris- tual point. The principles of federalism, diver- prudence understands diversity and democracy sity, and democracy at stake in the governmen- in very formal terms, namely in terms of levels tal and intergovernmental deliberations have at of government within a federal system, and the least formal representation in the judicial analy- configuration of the population into provincial sis of Insite’s constitutional positioning in rela- and national majorities, each with its set of rep- tion to the division of powers. In contrast, the resentative institutions. I argue that this formal conventional judicial calculus provides little, if calculus of diversity and democracy should be any, space for examining the mobilization of a textured by a more substantive account of polit- profoundly marginalized community around
94 Volume 19, Number 2, 2011 issues of survival in the face of overwhelming bourhood, notes “the keen cultural awareness silence in the larger political sphere. In the sec- of the high visibility of First Nations people ond part of this essay, I provide a brief overview in the Downtown Eastside; in virtually every of the discussion of the interjurisdictional im- meeting I have attended in the neighbourhood munity doctrine in recent Supreme Court of (and, in any government meetings), there have Canada cases, focusing on aspects that relate to been verbal, behavioural, or cultural references the doctrine’s use in Huddart JA’s reasons. In to First Nations traditions.”12 This palpable and the third section, I discuss how the jurispruden- numerically strong presence, however, has not tial narrative about jurisdiction might engage translated into political voice. Activists express more fully with the community narrative about frustration at the fact that while indigenous self-government. people in the DTES are often recognized as an important client group for services, they are sel- dom viewed as political agents.13 Part I: The story of Insite: The community narrative about The DTES is a truly heterogeneous and demographically distinctive neighbourhood. self-government Roughly 45% of the population is comprised 14 The DTES comprises an area that is roughly of first-generation immigrants to Canada. In three kilometres along the east-west axis and some parts of the neighbourhood, men far out- two kilometres along the north-south axis. number women, giving the neighbourhood an 15 It lies along the Burrard inlet just east of the overall 62/38 male to female population split. downtown commercial centre of contemporary It has twice the seniors (22%) and half the chil- Vancouver and is one of the most densely popu- dren and youth (2% and 8%) than the rest of 16 lated and diverse neighbourhoods in the city. the city. It also has roughly three times the Traces of its original Coast Salish inhabitants, number of persons living alone than the rest of who had fishing camps, villages, and trails in the city. The DTES is notorious as the poorest the area, have long ago been overlain by the rap- postal code in Canada. Census figures (which id urbanization that took place in the late nine- do not include homeless persons or persons teenth century. Nevertheless, “cultural memo- whose income is not reported) put the median ries of dispossession”8 live on, sustained by the income at $12,084, and the unemployment rate significant concentration of indigenous peoples (22%) is almost three times the rate in the rest 17 drawn from local and distant communities who of the city. Close to 40% of DTES residents rely currently reside there. Colonialism is both past on transfer payments for support and 67% of and present in the DTES, prompting some to households are in the low-income category— 18 demand recognition of the neighbourhood and compared with 27% in the city as a whole. similar urban spaces in Canada as neo-colonial 9 The nature of the neighbourhood is such spaces that remain “unsettled.” Nicholas Blom- that violence, both public and private, is a part ley, in particular, observes that the Coast Sal- of daily life and, as elsewhere, such violence ish have been dispossessed but not displaced, deeply marks the lives of women, especially that “the settler-city not only was, but still is, 10 racialized and indigenous women. Since 1983, native land.” The argument is particularly approximately 69 women associated with the powerful in the DTES, in which estimates sug- neighbourhood—many of them indigenous, sex gest that between 10% and 40% of the roughly 11 trade workers, and injection drug users—have 16,500 inhabitants are indigenous peoples. disappeared. Leslie Robertson and Dara Cul- The indigenous presence shapes the character hane, echoing observations about the politi- of the community, not simply through formal cal voicelessness of indigenous residents more visible markers such as the totem, “Standing generally, note that women in the DTES are si- with Courage, Strength and Pride,” carved multaneously visible and invisible.19 For years, and raised in Oppenheimer Park in 1998, but efforts by friends and family of the missing in more subliminal ways. Adrienne Burk, who women to gain the attention of the police and has chronicled social mobilization in the neigh-
Constitutional Forum constitutionnel 95 public were ignored. Slowly, other forces joined Accounts of the escalation of addiction prob- in pressuring authorities, and eventually inves- lems in the DTES during the 1980s are surreal. tigations were undertaken. Local, national and In the 1970s, the city opened a facility to house international media attention exploded as evi- “the sixty seven people police had identified as dence began to point in the direction of a serial the most problematic in the neighbourhood.”27 murderer. The process culminated in the arrest By the end of the 1980s, this relatively manage- of Robert Pickton in 2002 and his conviction able situation had transformed; the DTES “was in 2007 on six counts of second-degree mur- home to one of the fastest growing open-air drug der. However, despite the sensational nature of markets in Canada, an infrastructure of illegiti- the coverage of the Pickton trial, the feeling of mate businesses to support this market, and the invisibility remains palpable. As one resident, epicentre of an epidemic of property crime.”28 a Cree woman and injection drug user, put it: More significantly, “people were dying in great “See, the buses come and go down here, and numbers.”29 The neighbourhood, in particular you see people looking. But they don’t see noth- the user community, began to respond on an ad ing. All they see is the dope. People can hide in hoc and then more concerted basis, and a harm plain sight. They can be this far from you. . . . reduction movement started to mobilize. The [T]he thing is these people, they’re invisible to movement integrated health concerns—reduc- society.”20 tion of overdose deaths and the transmission of infectious diseases—with social concerns such A number of converging factors compound as access to toilets, physical safety, and police the social and political invisibility of DTES resi- harassment. At the time, the entrenched under- dents. The commonplace “conflation of persons standing of addiction to illegal narcotics was 21 and place occurring in stigmatized space” is, the criminal model. Canada endorsed a harm in the case of the DTES, exacerbated by the reduction approach in 1987 that, on paper at criminalization of its residents as addicts, drug least, acknowledged the ineffectiveness of the dealers and sex trade workers, and by their sub- criminal model, emphasizing instead the health sequent medicalization as public officials began dimension of addiction. However, enforcement to seek responses other than law enforcement activities continued to escalate and the bulk of to the steeply climbing rates of overdose deaths funds earmarked for harm reduction went to and HIV infection. Moreover, detractors fre- police drug education programs that adhered to quently characterize the DTES population as a traditional message.30 Meanwhile, health care transient, despite the fact that it is a remarkably policy remained by and large committed to an 22 stable community. In a property discourse abstinence-based treatment model that often dominated by what Blomley calls private prop- relied on punitive measures to achieve compli- erty’s “ownership model,” the homeless person ance. In contrast, a harm reduction approach or long-term hotel dweller loses any place-based requires a fairly profound shift in thinking. It entitlement to belong. Her claim to be and re- challenges not only the view that addiction is main in the neighbourhood is rendered inco- deviant behaviour best addressed through the 23 herent. Gentrification in the DTES increas- criminal law, but also the view that addiction ingly threatens to displace many such residents, is exclusively a disease. Harm reduction ap- 24 eclipsing their “community land claim.” The proaches, when implemented as part of a gov- claim is based on their collective investment ernmental drug policy regime, typically are in the physical space through use, habitation, combined with enforcement measures aimed at action, and struggle—an investment that has trafficking and abstinence strategies. However, produced a landscape with powerful material the approach is premised on the recognition 25 and representational dimensions. For exam- that social factors such as homelessness, pov- ple, Oppenheimer Park, the site of the “Stand- erty, gender inequality, colonialism and racism ing with Courage” totem and of VANDU’s first must be factored into the understanding of ad- meeting, is often referred to by DTES residents diction. Thus, a more comprehensive and flex- “by terms generally used for a dwelling (our ible set of supports and resources are required 26 ‘back yard, our living room’).” for “treatment,” the aim of which is primarily to
96 Volume 19, Number 2, 2011 reduce disease and death and achieve stability port from the B.C. Centre for Disease Control rather than to reduce addiction.31 (free syringes, and occasional visits by a nurse) and with no serious interference from police. The DTES activist and user community be- It closed because of lack of funds.40 Another gan to pursue a number of harm reduction, self- group, called the Political Response Group, help strategies at the end of the 1980s. In 1988, staged eighty demonstrations demanding bet- social activist John Turvey was so concerned ter services for addicts. The most prominent about the rise in infectious diseases related was the “thousand crosses demonstration” in to injection drug use, that he “started single- 1997. Traffic on a main artery running through handedly giving out three thousand clean the neighbourhood was blocked, leaflets were 32 syringes a month.” Eventually, his organiza- handed out detailing the epidemic of overdose tion received a government grant and opened deaths, and while indigenous elders drummed the first official needle exchange in Canada in and sang, a thousand crosses were planted in 33 1989. In 1991, a weekly support group called Oppenheimer Park, presenting a powerful im- Drug and Alcohol Support Group for Women age in public space of the toll taken by drug- (DAMS) was set up by volunteer health profes- related deaths.41 sionals and social workers who were unable to obtain funding because they pursued a harm The organization of the two institutional reduction rather than abstinence approach.34 applicants in the Insite litigation—VANDU and The women in the group were primarily moth- PHS—occurred in 1998 and 1993 respectively. ers, and indigenous. Importantly, the harm re- Starting in 1997, a number of advocacy and sup- duction approach permitted “recognition of the port groups in the neighbourhood—IV Feed, social factors that shape women’s lives and ac- Political Response Group, MindBody Love, the knowledgement that women’s drug use differs Compassion Club, the Hype, and HCV+IDU— from men’s,”35 as well as being differentiated in began discussing the development of a drug relation to class, ethnicity, race, sexuality and user organization as a means of coping with the culture. Thus, for example, “reunification of the epidemic of addiction-related deaths and health family was a central component of the program issues.42 The result was VANDU. It commenced because most of the women who participated in with a meeting in Oppenheimer Park in Sep- DAMS had at least one child apprehended by tember 1997 organized by Ann Livingston, a the state.”36 non-user and harm reduction activist who had been instrumental in setting up Back Alley, and Meanwhile, however, the rate of overdose Bud Osborn, a DTES resident and former heroin deaths in B.C. continued to climb, going from addict, social activist, poet, and member of the 39 in 1988, to 331 in 1995, and to 417 in 1998, Vancouver-Richmond Health Board. Osborn 37 the worst year on record. Also, the spread, and Livingston plastered the neighbourhood via unsafe injection practices, of infectious dis- with flyers inviting people to take a “communi- eases—HIV/AIDS, Hepatitis A, B, and C, and ty approach” to a list of five issues, none of them other skin and blood-borne infections—as well specifically about addiction, but all of them im- as the development of a constellation of associ- bricated in the experience of addiction in the ated conditions—septicaemia, endocarditis, ag- DTES. The five issues were: “police conduct, ‘is gravated mental illness, foetal exposure to nar- this your home?,’ neighbour relations, violence 38 cotics—began to reach epidemic proportions. and safety, washroom facilities.”43 This inaugu- The situation was highly visible at the commu- ral meeting was followed by several more at a nity level of health care provision and was not church and then by weekly user meetings, out unnoticed at governmental levels. However, no of which VANDU arose. Osborn convinced the comprehensive response was undertaken, leav- Health Board to declare a public health emer- ing the neighbourhood to continue to pursue gency in 1997 and to provide VANDU with the 39 its own strategies. A lobby group of drug us- small grant that launched its formation in Janu- ers called IV Feed was formed, and in the Fall ary 1998.44 VANDU founders identified politi- of 1995 it set up Back Alley, an illegal injection cal marginalization and “the distance that us- site that operated for a year, with informal sup-
Constitutional Forum constitutionnel 97 ers are from society” as a key obstacle.45 As the Users are People Too! They deserve compassion membership grew in size (from 20 to 100 in the and a place in the Community!”51 first few months, and eventually to more than 2,000),46 the original founders involved par- A recurrent theme in the VANDU minutes ticipants in facilitating subsequent meetings, is the need for a harm reduction rather than a planning agendas and publicity, and developing crime control approach, and, as a central fea- action plans arising out of group discussions. ture of harm reduction, a safe injection site that With its membership consisting of “economi- is legal, user-controlled, and adequately funded 52 cally impoverished, ill and courageous drug to provide health and social support services. addicts,” VANDU took as its first objective “to VANDU’s programmatic achievements over change the demonizing rhetoric they endured the years have included creating peer support using community meetings, demonstrations, and mentorship relationships; obtaining CPR education and fearlessness in the face of repres- training for addicts; inviting guest speakers; sion.”47 In short, VANDU set out to demand creating support groups for people on metha- a part for injection drug users in the broader done, women with HIV, and those with Hepa- political conversation about addiction and the titis C; patrolling back alleys to reach high risk neighbourhood, a conversation in which, to drug users; creating used syringe recovery and that point, their members had only featured as syringe exchange programs; lobbying for, and the face of “the problem.” then supervising, night-time public toilets, cre- ating drop-in centres; visiting hospitalized drug In its effort to demand that injection drug users; and engaging in educational activities in- users occupy political space as agents rather than cluding participating in local, national and in- objects, VANDU reached outward to challenge ternational conferences.53 discourse in the broader public sphere that con- demned the neighbourhood as deviant and be- VANDU takes the anti-slavery, civil rights, yond repair. For example, demonstrations were and women’s movements as its models. Its com- organized to contest Constable Mark Tonner of mitment to challenge “traditional client/provid- the Vancouver Police Department’s portrayal of er relationships and empower people who use DTES injection drug users as “vampires” and drugs to design and implement harm reduc- “werewolves” in a weekly column he wrote for a tion interventions,” is reflected in its governing city newspaper.48 And when home and business structure. Anyone can join VANDU, but only owners associations pursued an agenda against addicts or former addicts have a vote at meet- harm reduction, asking instead for more law ings or can be elected to its governing board. enforcement, harm reduction activists respond- Supporting members have a voice but no vote at ed with more demonstrations and circulated a meetings and cannot exceed 10% of the entire 54 poster that asked “Why don’t you just kill us?”49 membership. The demographic make-up of Yet, not all of VANDU’s interventions involved the membership is roughly estimated to be 1/3 direct action of this sort. The notes from the women and 1/3 indigenous peoples, with mem- user meetings record discussions about sharing bers ranging in age from 10 to 70 but clustered 55 public spaces with children and elderly, police around the ages 30 to 50. harassment and racial profiling of Latino/a resi- PHS, the other institutional plaintiff in the dents as drug dealers, police violence against Insite litigation, was formed by the Downtown indigenous residents, the harm reduction ap- Eastside Residents Association. It is named af- proaches pursued in Europe, as well as about ter the Portland Hotel, a residence it admin- larger systemic issues—the role of poverty, the isters “for adults with mental illnesses, addic- effects of criminalization, and the absence of tions and other problems” with funds from the any political voice or credibility for injection Vancouver Coastal Health Authority and the drug users in the face of “war on drugs” rheto- B.C. Housing and Mortgage Corporation.56 It is ric. As one participant asked: “Why should peo- both an advocacy group and a service provider ple be homeless, sick, beat up, etc., because they 57 50 for its residents and the neighbourhood. As use drugs?” Or as a protest sign stated: “Drug such, its staff saw first-hand the impact of rising
98 Volume 19, Number 2, 2011 addiction rates in the 1990s. PHS sponsored a CDSA and to secure governmental support for conference in 1998 in Oppenheimer Park that Insite. While serious resistance still remained drew together politicians, government bureau- at the federal, provincial and municipal govern- crats, harm reduction experts from the U.K. ment levels, a much broader-based public dis- and Europe, and neighbourhood drug users.58 cussion in Vancouver and the province began to Although government acceptance of a harm re- unfold over the next five years, with active par- duction approach was still several years away, ticipation by neighbourhood activists and drug PHS often was able to bridge the divide between user groups such as VANDU. This eventually led the neighbourhood and governmental bodies to the consensus at the three levels of govern- while still remaining “of the neighbourhood.” ment that secured the CDSA exemption and the funding to open Insite. The tale of these official As the harm reduction movement gained negotiations and discussions has its own water- force in the DTES, it also started to acquire shed moments as well as the drama of political powerful allies, among them Larry Camp- careers lost and made.60 In comparison with the bell, B.C.’s Chief Coroner at the time, who was tale of the unofficial community actions that dealing first-hand with the increasing amount got the process off the ground, it is much more of deaths; Ken Higgins, a former Vancouver visible in the judicial analysis of “who has ju- deputy police chief; Dr. John Millar, the pro- risdiction.” It appears mostly in Pitfield J’s trial vincial health officer; and the Health Officer’s judgment in the form of the many reports and 59 Council of B.C. Phillip Owen, Vancouver’s analyses by governmental health authorities as mayor during the crucial years of 1993 to 2002, the city and province began to study seriously, was initially unequivocally against harm reduc- and then endorse, an experimental harm reduc- tion strategies. However, he eventually became tion strategy with Insite as its centrepiece. The a strong and articulate promoter of a “four- provincial jurisdictional stake is, of course, ex- pillars” approach, which included harm reduc- plicitly represented in any constitutional dispute tion as one of its pillars. Libby Davies, the New structured by the binary of federal and provin- Democratic Party MP for Vancouver East also cial governments. The next section of this essay became an outspoken supporter of harm reduc- turns to that division of powers framework and tion. In short, despite being ill, often homeless, outlines the technical doctrinal aspects of the and impoverished, harm reduction activists interjurisdictional immunity doctrine in rela- and injection drug users in the DTES managed tion to the Insite litigation. to push back against their profound political invisibility. They crafted their own institutions As a postscript to the story sketched out and supports, and engaged in direct action and above, I should add that the DTES harm reduc- protests. In a remarkable and sustained dem- tion movement by no means dropped out of onstration of political agency, they challenged the picture once the more recognized channels their construction as victims or deviant out- of democratic change were activated. It con- siders. Eventually, they succeeded in actively tinued to intervene before city council and to engaging powerful actors in the public sphere, engage with decision-makers at all three levels “talking back” to negative press, and form- of government. It also continued to pursue self- ing coalitions and alliances that crossed class, help strategies. In 2002, PHS, fearing that the neighbourhood and international lines. momentum behind Insite at the governmental level would dissolve in impending municipal It is at this point in the story, in late 1998 elections, decided to move ahead and open an and 1999, that action at the community level ex- unapproved safe injection site. It raised funds, panded and the project began to move through and acquired and renovated a building that had municipal, provincial and federal channels. been a sandwich shop. The new facility, now After the release of a Health Board Report call- supposedly a hair salon, was outfitted with six ing for four safe injection sites, Davies and Os- injection booths. When it looked like Campbell, born met with federal health officials to discuss a harm reduction supporter, would in fact win a strategy to obtain an exemption under the the mayoral election, PHS shelved the effort in
Constitutional Forum constitutionnel 99 the hopes that an approved site would soon fol- An enthusiastic application of the inter- low with better staffing and programming.61 jurisdictional immunity doctrine would favour a generous delineation of the exclusive core and Campbell did win and promised to open a a softening of the standard used to measure facility by January 2003. But he soon found him- whether a spillover is serious enough to warrant self bogged down in governmental negotiations rendering a valid law inapplicable. Theoretical- as well as coping with backlash from his en- ly, the doctrine applies to protect both federal dorsement of a massive crackdown by the Van- and provincial jurisdiction; however, in prac- couver police on the open drug market in the tice, it has heavily, if not exclusively, favoured DTES. Frustrated by the delays, Ann Livings- the federal government. The interjurisdictional ton organized yet another illegal safe injection immunity doctrine, as well as the watertight site, staffed by a volunteer nurse, that opened in compartments approach more generally, cur- 62 April 2003, the day of the crackdown. It oper- rently has a negative reputation, especially with ated until Insite opened its doors in September judges at the Supreme Court of Canada. The at the location PHS had prepared earlier. At this negativity is rooted in the perception that the point, it had official approval, was expanded to approach is rigid, inflexible, not “modern,” and twelve booths, and had funds dedicated to staff at odds with co-operative federalism. There is and supportive programming. also a recurrent concern that the approach cre- ates legislative “gaps” in the form of exclusive Part II: Interjurisdictional areas of jurisdiction in which the government that has jurisdiction has little incentive, or finds immunity doctrine before, during it difficult, to regulate.64 and after the B.C. Insite cases The competing approach, often described as The interjurisdictional immunity doctrine, the “modern,” treats messy overlaps between juris- basis of the Court of Appeal’s majority deci- dictional categories as not only inevitable but, sion in favour of Insite, is associated with the to some extent, desirable. On this approach, less favoured of two competing conceptions of courts will only intervene to clarify a jurisdic- interjurisdictional conflicts. The first concep- tional dispute if there is a conflict between two tion uses the metaphor of watertight compart- valid laws serious enough to trigger the para- ments to describe jurisdictional categories. It mountcy doctrine. This doctrine always oper- invokes for support the many references in the ates in favour of federal jurisdiction. An en- text of sections 91 and 92 in the Constitution thusiastic application of the modern approach Act, 186763 to the exclusive nature of federal and would demand a very stringent test of conflict in provincial jurisdiction. In order to realize this order to trigger the doctrine, thereby tolerating commitment to exclusivity, the enumerations of a wider range of overlapping laws. Conversely, “Matters” in the constitutional text are thought a watertight compartments approach to para- to mark out areas of jurisdiction that must be mountcy would install a very low threshold test kept clearly differentiated from each other. of conflict which, at provincial expense, would Judges should strive to avoid any messy overlap reduce the amount of overlap between federal or “leakage” from one “compartment” to an- and provincial regimes. The paramountcy doc- other. While some overlap is inevitable, the in- trine, in the modern version, is perceived as be- terjurisdictional immunity doctrine delineates ing everything that the competing approach is areas of exclusivity at the core of the legislative not: elastic, flexible, modern, and facilitative of subject matters, whether or not the level of gov- co-operative federalism. As such, it is viewed ernment with jurisdiction has actually used its as more suited to the complexity of govern- power to enact a law. Valid laws enacted by the ment in a contemporary federal state. Indeed, other level of government, but which spill over the Supreme Court of Canada has recently af- into this exclusive core can be rendered inappli- firmed that it is both the preferred and domi- cable under the doctrine, thereby maintaining nant approach.65 the watertightness of the compartment.
100 Volume 19, Number 2, 2011 PHS and VANDU turned to the courts for both ways. Indeed, they observe that courts in relief in 2008. In the preceding year, while In- the past have deployed the doctrine in the prov- site still had a short-term extension of its CDSA ince’s favour but have done so by simply limit- exemption, the Supreme Court of Canada de- ing the federal legislation’s ambit “without too cided a pair of cases, Canadian Western Bank much doctrinal discussion.”74 The implication is v Alberta66 and British Columbia (Attorney that, henceforth, courts should be more explicit General) v Lafarge Canada Inc67, that seemed to about using the doctrine to protect core areas of cement in place a “backseat” role for the inter- provincial exclusive jurisdiction. jurisdictional immunity doctrine in favour of a “front seat” role for the federal paramountcy By and large, CWB contains the elabora- doctrine.68 CWB concerned a claim of inter- tion of the new approach. The companion case jurisdictional immunity by a federally regu- Lafarge, however, opens with the controversial lated bank in relation to a provincial insurance assertion that the interjurisdictional immunity regime; Lafarge concerned a claim of immunity doctrine “should not be used where, as here, the by the Vancouver Port Authority in relation to legislative subject matter (waterfront develop- 75 municipal zoning requirements. The Supreme ment) presents a double aspect.” This state- Court of Canada rejected both claims. In CWB, ment is at the centre of the disagreement in the Binnie and Lebel JJ wrote lengthy reasons, sup- Insite litigation between the trial judge and the ported by four others, that redesigned the inter- majority at the Court of Appeal. Pitfield J, the jurisdictional doctrine.69 In Lafarge, Binnie and trial judge, took Binnie and Lebel JJ at their Lebel JJ again wrote reasons for the majority af- word. He found that the CDSA impairs a vital firming the approach they had set out inCWB .70 part of the provincial health care undertaking, Insite. However, because Insite operates in the After noting in CWB that the interjurisdic- double aspect field of health, Pitfield J felt com- tional immunity doctrine is inconsistent with pelled, following Lafarge, to resolve the conflict the dominant trend in the jurisprudence, Bin- between the two levels of government in favour nie and Lebel JJ state that they wish to “make it of the federal level under the paramountcy clear that the Court does not favour an intensive doctrine.76 reliance on the doctrine.”71 They also direct that the indicia for its operation should be altered to Huddart JA at the Court of Appeal dis- make it harder to apply, specifying that it must agreed. She took heart from an article by Pro- be shown that the impinging legislation impairs fessor Robin Elliot in which he argues that Bin- rather than simply affects the vital and essential nie and Lebel JJ could not have meant what they core of the other government’s jurisdiction. The seem to have said in Lafarge. Professor Elliot impairment standard is described as not quite points out that a new rule barring the use of the as stringent as the “sterilize” test from early case doctrine in double aspect fields would constitute law, but as more demanding than the “affects” a major transformation of the law, effectively test that has been the standard for several de- eliminate the doctrine, and contradict much of cades.72 Binnie and Lebel JJ also advise that it what the two judges say in the companion case is preferable that courts resolve jurisdictional of CWB as well as what they proceed to do in conflicts in new areas, if possible, with the doc- Lafarge—namely, analyse whether the Vancou- trine of federal paramountcy.73 ver Port Authority can claim immunity in the double aspect field of waterfront development.77 Despite these severe constraints on the doc- trine’s use and scope, the CWB analysis affirms Huddart JA in PHS Community Services that the doctrine is here to stay. Importantly for Society would seem, then, to challenge judicial the Insite litigation, the judges note that appli- trends, first by making interjurisdictional im- cation of the doctrine has been quite lopsided, munity the centrepiece of her decision, second, in general protecting federally regulated entities by finding that the doctrine applies to protect from provincial regulation and not vice versa. a provincial entity from federal intrusions, and The judges state that theoretically it should work third, by refusing to accept at face value the statement in Lafarge that the doctrine has no
Constitutional Forum constitutionnel 101 role in double aspect fields. Her reasons, howev- majority and found in favour of the aerodrome er, otherwise respect the parameters and spirit owners. She found that the aerodrome was a of the dominant approach by interpreting the federally regulated undertaking, that the matter requirements of the doctrine quite strictly. She of its location lay at the core of federal jurisdic- accepts that the CDSA is valid criminal law but tion, and that, as such, it was interjurisdiction- also makes clear that Insite’s provision of medi- ally immune from the application of Québec’s cal treatment to its community is at the core of regime. In the course of her reasons, McLach- its purpose as a hospital and therefore at the lin CJ rejected Québec’s argument, relying on core of provincial jurisdiction over hospitals. Lafarge, that interjurisdictional immunity can- She maps that core very narrowly and precisely, not apply in double aspect fields. McLachlin CJ fending off arguments that to give Insite the asserted that such an interpretation of Lafarge benefit of immunity would allow provinces to is inconsistent with the approach set out in ignore federal narcotics legislation altogether or CWB,82 and that Québec’s argument is a “chal- create legislative gaps with respect to the con- lenge to the very existence of the doctrine of trol of illegal drugs. At one point, she indicates interjurisdictional immunity,” a position that is that the application of the CDSA would “steril- inconsistent with the constitutional text and its ize” essential and vital parts of Insite’s operation many references to the exclusivity of legislative as a hospital, suggesting that she is using a very jurisdiction as well as precedent.83 high standard to determine whether the federal intrusion is sufficiently serious.78 For Huddart In COPA, Binnie and Lebel JJ take different 84 JA, co-operative federalism is facilitated rather paths. However, the divergence does not un- than impeded by the interjurisdictional immu- dermine the basic elements of their reasons in nity doctrine because it allows breathing room CWB. The crux of McLachlin CJ’s majority rea- for both the medical and criminal aspects of sons, with which Binnie J agreed, is her finding “the approach to the intractable problem [of] that the impact of Québec’s agricultural land dangerous substances.”79 She finishes by assert- reserve scheme on federal jurisdiction meets ing that if immunity is not available to Insite in the CWB standard of impairment. She reaches this situation, “then it may well be said [despite this conclusion even though the federal scheme CWB’s remarks] the doctrine is not reciprocal leaves the location and development of aero- and can never be applied to protect exclusive dromes to the private market. For McLachlin provincial powers.”80 CJ, the option of relying on private ordering in this way lies at the core of Parliament’s aeronau- Huddart JA’s scepticism about the Lafarge tics power and is impaired by Québec’s deci- statement has since found powerful support sion to legislatively protect its agricultural lands from the Supreme Court of Canada. Several from the operation of the market.85 months after the B.C. Court of Appeal deci- sion, the Supreme Court of Canada returned to Lebel J, in a very short dissent, agrees that the subject of the interjurisdictional immunity the location of an aerodrome by Parliament is doctrine in another pair of cases. Both emanate an essential and core aspect of its jurisdiction, from Québec and concern federal jurisdiction, but argues that the location of an aerodrome under its aeronautics power, over the construc- by a private company is not. The implication is tion of aerodromes, namely landing facilities that, for Lebel J, the question of impairment is for non-commercial aircraft. In Québec (At- irrelevant as there has been no intrusion at all 86 torney General) v Canadian Owners and Pilots into an exclusive area of federal jurisdiction. Association,81 the plaintiffs constructed an aero- Thus, the disagreement between Binnie and drome on land zoned agricultural under Qué- Lebel JJ would appear to be over how narrowly bec’s scheme for the preservation of such land. to map the exclusive core that can potentially be The plaintiffs failed to obtain the required prior protected by the immunity doctrine’s impair- authorization for a non-agricultural use and, as ment test. Lebel J’s restrained approach to this a consequence, were ordered to return the land task would seem to be more in keeping with to its original state. McLachlin CJ wrote for a the caution advised by CWB as well as with the
102 Volume 19, Number 2, 2011 concern it expressed about an asymmetry that if that is still a possibility after the aerodrome favours federal power. cases, a new area and thus one that must, if pos- sible, be settled under the federal paramountcy In the companion case, Québec (Attor- doctrine? Does the impairment test measure in- 87 ney General) v Lacombe, McLachlin CJ again terference with the operation of the entities in wrote reasons in favour of the aerodrome own- question—aerodromes, port authorities, banks, ers for a majority that included Binnie J but not safe injection sites—or with the integrity of the Lebel J, and, again, the divergence between the relevant government’s exclusive jurisdiction? 88 two judges does not point to a major fault line. And, hovering in the background of these ques- However, Deschamps J’s comments in her dis- tions about the post-CWB approach is the larger sent in Lacombe may have a direct bearing on question of the stability of the view, endorsed by the Insite litigation. Deschamps J at one point CWB, that a modern approach that relies on the criticizes McLachlin CJ for suggesting in COPA paramountcy doctrine to resolve interjurisdic- that the interjurisdictional immunity doctrine tional conflicts is the dominant and better ap- only protects core areas of federal jurisdiction, proach and that the interjurisdictional immu- a stance she argues is inconsistent with CWB nity’s less favoured watertight compartments and with the principle of subsidiarity. While approach should be confined to a minor role. McLachlin CJ’s reasons in both COPA and La- McLachlin CJ’s readiness in COPA, just three combe discuss the doctrine only in relation to years afterCWB , to give the immunity doctrine federal jurisdiction, she does not actually state quite a generous scope, albeit in favour of the 89 that it can only protect federal exclusivity. federal government, may rehabilitate the doc- In short, this most recent foray by the Su- trine somewhat, although one would hope not preme Court of Canada into the interjurisdic- in its typically asymmetrical form. tional immunity doctrine affirms that CWB is Some scholars reject the idea that one ap- the governing framework. It also affirms that proach is better than the other or that functional the doctrine still has a role to play despite its considerations such as flexibility and efficiency less favoured position. In particular, McLachlin should figure so prominently in adjudication of CJ’s majority reasons in COPA support Huddart federal conflicts. Bruce Ryder and Robin Elliot, JA’s view in PHS Community Services Society for example, argue that while both approaches (BCCA) that the interjurisdictional immunity present dangers, both are essential to a workable doctrine can be an important tool for resolv- federalism jurisprudence.90 Ryder in particular ing conflicts that arise in the context of double argues for a more values-based analysis of fed- aspect subject matters such as health. Finally, eralism conflicts. He is critical of a historical Deschamps J’s comments in Lacombe raise a pattern of deploying the interjurisdictional im- question about whether interjurisdictional im- munity doctrine to pursue goals that lie outside munity protects provincial as well as federal the purview of adjudication, such as the pursuit jurisdiction. of a deregulatory agenda with respect to mar- kets.91 Nonetheless, he argues that the doctrine, Part III: Complicating democracy and the watertight compartments view more generally, is crucial to the realization of key in federalism jurisprudence constitutional values that underlie and animate The above summary touches on the key aspects the constitutional text setting out the division of the interjurisdictional immunity analysis that of powers—values that are properly within the are at play in the Insite litigation. There are addi- purview of judges. He discusses in particular the principles of provincial autonomy, recogni- tional doctrinal questions raised by the case and 92 by the recent jurisprudence. For example, are tion of indigenous polities, and democracy. there any solid precedents supporting the ap- PHS Community Services Society (BCCA) plication of the doctrine to entities lying within would seem to engage at least two of these val- provincially regulated areas of jurisdiction? Or, ues—provincial autonomy and democracy. Pro- is an application in favour of provincial power,
Constitutional Forum constitutionnel 103 vincial autonomy is clearly at the forefront of other than very indirectly. Rather, the “people,” Huddart JA’s analysis. She is adamant that both in the story she tells, are most vividly present as the local nature of the crisis, and the constitu- patients desperately in need of the health ser- tional commitment to exclusive areas of provin- vices provided by the provincial governmental cial jurisdiction—evident in both the text of the apparatus. Constitution and the jurisprudence—directs a finding of provincial immunity from the appli- The “people” of course also show up as in- cation of the CDSA to Insite. Democracy does dividuals in the Charter analyses. Rowles JA not feature in the same central way; however, notes the PHS Society’s self-description as rep- it is implicit, given the jurisprudential under- resenting “those who are homeless or at risk of standing that federalism and democracy are homelessness due to multiple barriers to stable inextricably intertwined. The Supreme Court housing associated with a combination of un- of Canada has assured us that the principle of employment, addiction, chronic illness and 97 federalism configures “different and equally le- mental health problems.” As well, she notes gitimate majorities in different provinces and the evidence of a demographic survey of 1,000 territories and at the federal level.”93 And a key users that shows high proportions of persons reason for rejecting interjurisdictional immu- with infectious disease (87% have Hepatitis C; nity is the “legislative gap” argument, namely 17% have HIV); of aboriginal persons (18%); that it mars the otherwise seamless and exhaus- of sex trade workers (38%); and of the home- 98 tive distribution of legislative powers to demo- less (20%). These figures assist in demonstrat- cratically elected governments by creating, at a ing the vulnerability of the individuals who are functional level, little pockets of exclusive ju- claiming an unconstitutional interference with risdictional space where one government’s laws their life, liberty, and security of the person. are inapplicable and the other government finds Similarly, Pitfield J at trial and Smith JA, in her it difficult or uninviting to legislate.94 dissent at the Court of Appeal, focus in their analyses of the section 7 interests in life and se- Huddart JA’s reasons adhere diligently to curity of the person, on the medical vulnerabili- these conceptions of the interrelation between ties of Insite clients in terms of risks to life and federalism and democracy. She denies that any health from overdose and infectious diseases. gaps would be created by according interjuris- dictional immunity to the Province’s health care For these three judges, then, the compelling undertaking Insite. For her, the “gap” we should justice issue has to do not with the autonomy be worried about is the one that would be cre- of the relevant political community or with ated if the Province, the only government with democracy, but with the fundamental entitle- authority to respond to the local health crisis in ment of individuals, including those suffering the DTES, was prevented from doing so by the from the illness of addiction, to live a life with paramountcy of federal narcotics legislation.95 dignity. Hence, the Charter rights framework works best for them. Social groups that are de- At a more fundamental level, however, the fined by disadvantage—homelessness, addic- key communities for Huddart JA are necessarily tion, illness—are implicitly referenced, but only those marked out by formal representative pro- to give a more textured account of the key po- cesses and institutions, as well as by the formal litical actor in liberal rights discourse, namely, apparatus of government: ministries, health au- the individual. In short, a discourse of rights thorities, and Insite itself—a “hospital” that is that presents individual claimants as “injured” explicitly assigned to provincial jurisdiction by in multi-dimensional and intersecting ways is section 92(7) of the Constitution Act, 1867. Only strategically compelled by the Charter lens.99 her references to the “local” and to the princi- ple of subsidiarity gesture in the direction of a Both the rights and division of powers nar- more substantive understanding of democracy ratives tell important stories about singular and and autonomy.96 Indeed, the “people” in her de- significant dimensions of our political com- cision do not show up as active political agents munity. However, they are distinctly different narratives and only the jurisdictional frame,
104 Volume 19, Number 2, 2011 I would suggest, can get at the concerns about change and on our imagined possibilities. Such democracy. Indeed, some would argue that the institutions, although crucial to a function- rights frame in some respects “fences” us into ing democracy, are inherently shaped by their the sites of our subordination, thereby repro- historical evolution under and current posi- ducing that subordination100 and deflecting tioning in relation to conditions of structural from “the dream of democracy—that humans inequality.104 might govern themselves by governing togeth- er.”101 I understand, however, why, intuitively, Young’s point is echoed in Wendy Brown’s the narrative about rights seems to get closer discussion of the conundrum of formulating to our sense of the compelling issue of justice a post-individualist conception of democratic in the story of Insite. The jurisprudential story freedom, and in James Tully’s insistence that of intergovernmental relations, with its high such freedom entails both rule of law and a level of abstraction and technicality, appears practice of self-rule. Brown observes that free- detached and removed, perhaps pathologically dom, when institutionalized, tends to reinstall so, from the pain and urgency of the situation. the particular practices of domination that it 105 Our judges, law teachers and legal scholars as- has vanquished. Hence, she advises, freedom sure us that the vocabulary of immunities and would seem to “depend on a formulation of the vital parts, and the bewildering distinctions political that is richer, more complicated, and between sterilization, impairment, and effects, also perhaps more fragile than that circum- are really about the integrity of our democratic scribed by institutions, procedures and political 106 processes, the accountability of governments to representation.” James Tully, similarly, urges the configuration of the “people” into various us to embrace an expansive conception of de- majorities, and the autonomy and self-govern- mocracy that both affirms and goes beyond ment of the multiple polities that constitute our eighteenth-century conceptions of formal rep- federal system. But it takes several analytical resentative institutions to include “any activity leaps to draw those connections, and in the end, in which people assemble and negotiate the way 107 frankly, we are still left with a very formal, pro- and by whom power is exercised over them.” cedural conception of the democratic political Like Young, Tully argues that field of democrat- community—namely as a collection of voters ic politics must extend to include the full range configured into various territorial, provincial of approaches to dialogue, deliberation, and 108 and national majorities. “decision making interaction.” I want to argue that there is another narra- The story of Insite illustrates Young’s con- tive about democracy and political community cern that the abiding conditions of structural that although it has very little, if any, purchase inequality under which our representative in- in our constitutional texts and jurisprudence, stitutions have evolved place significant limits might productively instill in them a deeper dem- on our political possibilities. Key institutional ocratic logic. This narrative takes the “differ- actors in 1993 assumed that the starting point ence” that federalism protects out of its formal for a response to the addiction crisis was a governmental container and locates it closer to combination of the enforcement measures and the ground in an activist, “critical oppositional abstinence-based treatments that had evolved politics.”102 The model is Iris Marion Young’s over a number of years under the rubric of the conception of democratic politics. Young urges “war on drugs.” The options within this frame us to embrace a theory of democracy that has a ranged from more effective enforcement—more place for both reasoned deliberation within the police officers on foot patrol, for example—to institutional channels of representative govern- better ways to achieve abstinence—more fa- ment and established civil society institutions cilities and resources for detox, for example. It and a more “rowdy, disorderly and decentred took several years of direct action in the form of politics.”103 The latter, importantly, persists in demonstrations such as the “thousand crosses” challenging the constraints imposed by public demonstration, the creation of illegal safe injec- and private institutions on the terms of social tion sites, the setting up of unfunded drop-in
Constitutional Forum constitutionnel 105 centres, the convening of meetings in the park, in the case law to subsidiarity. The second is in and the institution of needle exchanges and the more extensive jurisprudence concerning back-alley patrols, to begin to shift perceptions division of powers conflicts in which the com- in both enforcement and health care circles to- munity standing behind the federal side of the ward a wider set of possibilities. And after all conflict is an indigenous community. that, the shift in the end, although significant, was relatively modest, consisting of a commit- The principle of subsidiarity surfaces ment to explore harm reduction strategies on in Canadian jurisprudence simply as a ges- an experimental basis for research purposes ture, as in PHS Community Services Society 113 alongside enforcement and abstinence-based (BCCA) itself. The most oft-cited instance of treatment.109 this is in 114957 Canada Lteé (Spraytech, So- ciété d’arrosage) v Hudson (Town) in which Young also urges that we create space for a L’Heureux-Dube J, writing for the majority, critical oppositional politics because of its dis- begins the decision by asserting that “matters ruption of hegemonic discourses that, under of governance” in the current era are “often conditions of structural inequality, render the examined through the lens of the principle of conditions of that inequality as natural or inevi- subsidiarity.”114 She then defines subsidiarity as table features of life. Such discursive constraints “the proposition that law-making and imple- on social and political change operate in a more mentation are often best achieved at a level of subtle way, placing limits on the possible at a government that is not only effective, but also normative and conceptual level.110 In the story closest to the citizens affected and thus most of Insite, a discursive or ideological obstacle to responsive to their needs, to local distinctive- change has been and continues to be the notion ness, and to population diversity.”115 Spraytech of choice, and the conflation of freedom with in- involved a challenge to a municipal bylaw that dividual choice.111 Despite a wealth of evidence imposed conditions on pesticide use that were supporting the characterization of addiction as more onerous than those in place at either the a disease with multiple social, psychological, provincial or federal levels. L’Heureux-Dube J’s and genetic causes, the conviction that addic- majority reasons found in favour of the munici- tion is fundamentally a reprehensible personal pality and, in doing so, accorded the municipal choice for which, ultimately, individual addicts level of government a broad power to act in the must accept responsibility remains difficult to interest of the general welfare.116 dislodge. It is at the core of the federal govern- ment’s argument in PHS Community Services Although there is a reaching out to differ- Society that any addiction-related threat, in the ence “on the ground” in the form of the lived form of death by overdose or infectious disease, experience of communities in L’Heureux-Dube posed to the Charter-protected interests in life, J’s articulation of subsidiarity and her willing- “results from an individual’s choice to inject a ness to extend the principle to municipalities, harmful and dangerous narcotic rather than it is still a principle framed in terms of formal 117 state action.”112 “levels” of government. Thus, it does not contemplate the sorts of processes and opposi- There is little rhetorical space in our division tional politics that unfolded around the estab- of powers analysis to give texture to the demo- lishment of Insite. Moreover, recent comments cratic claims of the DTES user community and in a decision by the Supreme Court of Canada its grassroots harm reduction movement. The seem aimed at minimizing any role subsidiar- DTES user community simply is not cognizable ity might have. In Reference Re Assisted Human as a political community in the legal, constitu- Reproduction Act, a plurality of four judges in tional discourse of self-government. There are reasons set out by McLachlin CJ firmly rejects only two places in our jurisprudence that hint the notion that the principle of subsidiarity re- at what a more substantive and textured under- quires that “the criminal law must be circum- standing of the principle of democracy might scribed in order to preserve space for provincial entail. The first is in the very brief references regulation” of health care.118
106 Volume 19, Number 2, 2011 The second example pertains to indigenous diction on the federal level of government over communities who have turned to the language indigenous peoples rather than a responsibility of division of powers in pursuing their right to to respect and support indigenous autonomy.122 decide issues that bear directly on their survival Indeed, Ryder notes that the case law provides as communities. The cases take the form of a little hope that such a shift is likely. However, claim that the federal government, by virtue of the factual records in these cases—detailing its constitutional jurisdiction over “Indians and claims with respect to customary adoption Lands Reserved for Indians”119 is immune from norms, hunting practices, spiritual practices, the operation of provincial laws, or, alterna- and child welfare—invite us to take seriously tively, that provincial laws are rendered inappli- the indigenous claim to autonomy and to chal- cable under the federal paramountcy doctrine. lenge the idea that a “legislative gap” necessarily A claim of interjurisdictional immunity best means an absence of self- government. In short, achieves the underlying objective as it creates a in these cases, as in PHS Community Services jurisdictional space that, if uninhabited by fed- Society, one can glimpse through the inter- eral laws, can be occupied in a de facto manner stices of the jurisprudence the possibility of an by indigenous legal orders. alternative constitutional approach that never- theless builds on fundamental constitutional Perhaps the most famous in this line of cas- principles. es is Natural Parents v Superintendent of Child Welfare et al,120 in which the Tsartlip commu- nity unsuccessfully sought to resist the adop- Conclusion tion under provincial law of a Tsartlip child by a non-indigenous couple. The argument was The purpose of this essay is to argue that we need that interjurisdictional immunity applied be- to expand the range of factors that courts look cause Indian child and family relationships lie at in settling interjurisdictional disputes with at the exclusive core of federal jurisdiction, or respect to the constitutional division of powers. alternatively, that the federal legislation with Courts, in the large run of cases, are necessar- respect to Indians is paramount and rendered ily and properly constrained to examine such the provincial law inapplicable. At stake was disputes in terms of formal levels and institu- not simply the adoption of the particular child tions of representative government. However, in accordance with Tsartlip customary law, but the deeper principles that animate our consti- the intergovernmental arrangement between tutional texts invite a more textured analysis, in federal and provincial governments that set in particular with respect to the principle of de- motion the infamous “sixties scoop,” namely mocracy. The story of Insite presents us with a the apprehension of disproportionate numbers situation in which injection drug users’ survival of indigenous children under provincial child and health were at stake and in which users as welfare legislation and their placement in and, a group faced deeply embedded systemic and in many cases, adoption by, non-indigenous discursive barriers to participation within the families. conventional channels of democratic delibera- tion and change. In the face of this, the com- Ryder argues that courts should apply an munity pursued institution-building projects, “autonomist” approach to such cases, one that peer support strategies, media interventions employs the “doctrinal techniques” of the wa- to “talk back” to demonizing discourses and tertight compartments approach, including the to dislodge political indifference, and the cre- interjurisdictional immunity doctrine and an ation of alternative fora (the weekly user meet- extremely broad “covering the field” interpreta- ings, direct action and protests) for deliberative tion of the paramountcy doctrine, to safeguard democratic engagement. My argument is that a an area of sovereignty for indigenous commu- judicial determination of where jurisdictional nities.121 As Ryder points out, this would require authority resides in a democratic polity—a de- a radical change in current case law which pre- cision that is at base one about the structure sumes that section 91(24) confers plenary juris- of self-government—should take account of
Constitutional Forum constitutionnel 107 these elements of functional self-government turing of the jurisprudence of jurisdiction with or “democracy on the ground.” The need to acknowledgement of such political engagement do so is particularly compelling where a social might provide the ground on which we could be- group, for reasons of structural inequality, has gin to recognize urban communities such as the very little purchase in representative politics DTES as “unsettled” neo-colonial spaces that and where, as in the case of Insite, the interest at demand a more sophisticated calculus of demo- stake is of a significant and fundamental nature. cratic self-government than the simplistic and formal federal-provincial binary provides.126 In As I have developed this argument, admit- short, I agree with Ryder and Elliot that we need tedly in a preliminary way, I have been very more, not fewer, conceptions of how federalism conscious of feminist concerns regarding the and complex jurisdictional arrangements work. interjurisdictional immunity argument in sup- My suggestion that courts should require argu- port of Insite. The concern is that the same ment and evidence that explicitly complicate, in template applied in the context of some pro- this manner, the democratic principles at stake vincial decisions about abortion clinics would in jurisdictional disputes would be a modest produce decidedly less progressive results, es- step in that direction. sentially erasing instead of acknowledging po- litical space for the critical oppositional politics Judges, understandably, are loath to relin- engaged in by the women’s movement. In the quish the solid ground of textual truths and abortion context, the characterization of pro- objective principles. I am by no means arguing vincial regulatory opposition to abortion clinics that these traditional guides to interpretation as essentially intruding upon federal jurisdic- should be jettisoned. Judges, after all, are ap- tion under its criminal law power has, strategi- propriately concerned not simply with the le- cally, been crucial to ensuring women’s access gitimacy of representative institutions, but with to abortion.123 However, my argument is not their own legitimacy within a broader demo- that interjurisdictional disputes should be more cratic framework. Text and abstract principle sensitive to and textured by local politics simply often seem to provide the clearest foundation because they are local. Rather, my point is that for judicial legitimacy. However, this is to as- the analysis of such disputes should be more sume that legitimacy exists in a vacuum, that sensitive to and textured by critical opposition- it has a kind of self-referential coherence that al politics and by the democratic engagement of can ignore the context of the deeply engrained politically marginalized groups that takes place and persistent legacy of colonialism as well as outside established channels of power.124 Such a pervasive “class inequality, residential segrega- politics can as easily point in the direction of tion, and gender division of labour.”127 In short, federal as well as provincial jurisdiction. What attention to critical oppositional politics and is crucial is that the premise of political margin- its recognition as a fundamental and necessary ality requires some attention to actual relations component of democratic engagement is invit- of power and to political voice. As well, such ed rather than foreclosed by our constitutional oppositional politics must be weighed in rela- texts and principles. tion to the constraints implicit in the norms of publicity and openness that underpin political communication in a democracy, namely that any claims must “not [be] uttered in a way that Notes others could not accept as consistent with their own worth and dignity.”125 * Professor, Faculty of Law, University of Victoria. 1 SC 1996, c 19 s 56 [CDSA]. The mobilization of the harm reduction 2 ThThe e BC Civil Liberties Association, the VanVan-- movement by the user community in the DTES couver Coastal Health Authority, and the Dr. is a striking example of grassroots oppositional Peter AIDS Foundation also intervened with the politics by a group that is structurally and dis- Province. 3 Canadian Charter of Rights and Freedoms, Part cursively marginalized. Furthermore, the tex- I of the Constitution Act, 1982, being Schedule B
108 Volume 19, Number 2, 2011 to the Canada Act 1982 (UK), 1982, c 11, s 7 [the Space and Social Memory in Vancouver (Vancou- Charter]: “7. Everyone has the right to life, liberty ver: University of British Columbia Press, 2010) and security of the person and the right not to be at xi. Blomley, supra note 8 at 113 observes that deprived thereof except in accordance with the in 2001 half of all indigenous people in Canada principles of fundamental justice.” were urban. 4 2008 BCSC 661, 293 DLR (4th) 392 [PHS Com- 12 Burk, supra note 11 at 157. munity Services Society (BCSC)]. 13 Campbell, Boyd and Culbert, supra note 11 at 56. 5 2010 BCCA 15, 314 DLR (4th) 209 [PHS Commun- The authors recount Lou Demerais, an activ- ity Services Society (BCCA)]. ist on Native health issues in the DTES, “telling 6 Supreme Court of Canada, Scheduled Hearings, Aboriginal people they needed to start voting online: Supreme Court of Canada
Constitutional Forum constitutionnel 109 127. 48 Ibid at 84–85. 29 Ibid. 49 Ibid at 102. 30 Dan Small, Anita Palepu, and Mark W Tyndall, 50 Ibid at 51. “The Establishment of North America’s First 51 Ibid at 59. State Sanctioned Supervised Injection Facility: A 52 Ibid at 45–62. Case Study in Culture Change” (2006) 17 Inter- 53 Kerr et al, supra note 42 at 9–10, 12–14, 24–26. national Journal of Drug Policy 73 at 73–75. 54 Ibid at 17. 31 MacPherson, Mulla and Richardson, supra 55 These figures were provided in 2001 by VANDU note 28 at 129; Susan C Boyd, “The Journey to staff who based them on attendance at meetings. Compassionate Care: One Woman’s Experience See ibid at 13. The figures roughly parallel the with Early Harm-Reduction Programs in BC” demographic make-up of the neighbourhood in Susan C Boyd and Lenora Marcellus, eds, discussed at supra note 11. With Child: Substance Use During Pregnancy: A 56 Shared Learnings on Homelessness, Woman-Centred Approach (Halifax: Fernwood Portland Hotel Society, online:
110 Volume 19, Number 2, 2011 J in PHS Community Services Society (BCSC), 94 Ryder, supra note 90 at 313. supra note 4 at para 118. 95 PHS Community Services Society (BCCA), supra 76 PHS Community Services Society (BCSC), supra note 5 at para 174. note 4 at paras 117–18. 96 Ibid at paras 174,123. 77 PHS Community Services Society (BCCA), supra 97 Ibid at para 11. note 5 at paras 151–53, referring to Robin Elliot’s 98 Ibid at para 38. discussion of Lafarge in “Interjurisdictional 99 I am invoking here Wendy Brown’s worry that Immunity after Canadian Western Bank and La- by pursuing justice claims through the legal farge Canada Inc.: The Supreme Court Muddies language of rights, we engage in a process that the Doctrinal Waters—Again” (2008) 43 SCLR “fixes the identities of the injured and the injur- (2nd) 433 at 480–81. ing as social positions, and codifies as well the 78 PHS Community Services Society (BCCA), supra meanings of their actions against all possibilities note 5 at para 168. of indeterminancy, ambiguity, and struggle for 79 Ibid at para 171. resignification or repositioning.” States of Injury: 80 Ibid at para 176. Power and Freedom in Late Modernity (Princet- 81 2010 SCC 39, [2010] 2 SCR 536 [COPA]. on: Princeton University Press, 1995) at 27. See, 82 Ibid at para 55. however, Colleen Sheppard, Inclusive Equality: 83 Ibid at para 58. The Relational Dimensions of Systemic Discrimin- 84 The majority was composed of McLachlin CJ ation in Canada (Montréal: McGill-Queen’s and Binnie, Fish, Abella, Charron, Rothstein and University Press, 2010) at 119–35 for a thoughtful Cromwell JJ Lebel and Deschamps JJ each wrote analysis of how principles of democracy can and dissenting reasons. should inform equality rights. 85 COPA, supra note 81 at paras 50–53. 100 Wendy Brown, “Suffering the Paradoxes of 86 Ibid at para 77. Deschamps J’s dissent turns on Rights” in Wendy Brown and Janet Halley, eds, her finding that the impact of the provincial Left Legalism/Left Critique (Durham, NC: Duke scheme on the federal aeronautics power does not University Press, 2002), 420 at 422, 431. meet the CWB impairment standard. Ibid at para 101 Brown, States of Injury, supra note 99 at 5. 90. 102 Iris Marion Young, “Activist Challenges to 87 2010 SCC 38, [2010] 2 SCR 453 [Lacombe]. Deliberative Democracy” (2001) 29:5 Political 88 McLachlin CJ finds that the municipal zoning Theory 670 at 671. See also Inclusion and Democ- regulation that would prohibit the construction racy (Oxford: Oxford University Press, 2000) at of an aerodrome is an ultra vires invasion of the 48–49. federal power over aeronautics that cannot be 103 Young, “Activist Challenges,” supra note 102 at sustained under the ancillary powers doctrine. 688. Ibid at paras 30, 58. Thus, there is no need to 104 Ibid at 683–84. address immunity or paramountcy arguments. 105 Brown, States of Injury, supra note 99 at 8. Lebel J in separate and very short reasons also 106 Ibid at 9. finds in favour of the aerodrome owners but on 107 James Tully, Public Philosophy in a New Key: the grounds of paramountcy doctrine. Ibid at Democracy and Civic Freedom, vol 1 (Cambridge: para 70. Deschamps J in dissent, finds, like Lebel Cambridge University Press, 2008) at 157. J, that the bylaw is valid and non-impairing but 108 Ibid at 308. would also find that paramountcy doctrine is not 109 ThThe e endorsement in 2001 by the City of Vancou-Vancou- triggered. Ibid at paras 148, 181. ver of a four-pronged strategy aimed at preven- 89 Deschamps J, ibid at para 109 cites para 43 of tion, treatment, enforcement and harm reduction McLachlin CJ’s reasons in COPA when describ- included traditional as well as non-traditional ing Mclachlin CJ’s position in this regard. responses to addiction and injection drug use. 90 Bruce Ryder, “Th“The e Demise and Rise of the ClasClas-- Subsequently, the Vancouver Coastal Health sical Paradigm in Canadian Federalism: Promot- authority undertook a supervised injection site ing Autonomy for the Provinces and First Na- initiative, culminating in the approval of a CDSA tions” (1990–91) 36 McGill LJ 308 at 313, 380–81; exemption from the federal government. PHS and Robin Elliot, supra note 77 at 482–90. Community Services Society (BCSC), supra note 4 91 Ryder, supra note 90 at 321, 327–39. at paras 33–46. The exemption was granted based 92 Ibid at 322. on “the necessity for scientific purpose.” PHS 93 Reference Re Secession of Québec, [1998] 2 SCR Community Services Society (BCCA), supra note 5 217, 161 DLR (4th) 385 at para 66. at para 10.
Constitutional Forum constitutionnel 111 110 Young, “Activist Challenges,” supra note 102 at 123 See e.g. R v Morgentaler, [1993] 3 SCR 463, 107 685–87. Again, Young’s point is echoed in Tully’s DLR (4th) 537 argument, in the context of norms of mutual rec- 124 See supra note 117 regarding the anti-democratic ognition, that such norms must always be open history of the principle of subsidiarity. to contest and dialogue because any agreement 125 Young, Inclusion and Democracy, supra note 102 will always be flawed: “There are always asym- at 68. metries in power, knowledge, influence and argu- 126 See, in addition to Ryder’s argument, Jean mentative skills that block the most oppressed Leclair, “Federal Constitutionalism and Aborig- from getting to negotiations in the first place and inal Difference” (2006) 31 Queen’s LJ 521; and then structuring the negotiations if they do.” John Borrows, Canada’s Indigenous Constitution Tully, supra note 107 at 306. (Toronto: University of Toronto Press, 2010) at 111 Brown, States of Injury, supra note 99 at 13. 198–201. Brown here is critiquing thinkers on the left who, 127 Young, “Activist Challenges,” supra note 102 at in the wake of the atrocities of “actually existing 684. socialisms” have abandoned a critique of capital- ism in favour of the idea that “freedom, finally, is a matter of consumption, choice, and expres- sion: an individual good rather than a social and political practice.” Ibid. 112 PHS Community Services Society (BCSC), supra note 4 at para 141. 113 PHS Community Services Society (BCCA), supra note 5 at para 123. 114 2001 SCC 40, [2001] 2 SCR 241 [Spraytech] at para 3. Gonthier, Bastarache and Arbour JJ agreed with L’Heureux-Dubé J’s reasons. Lebel J wrote concurring reasons with which Iacobucci and Major JJ agreed. 115 Ibid. 116 Ibid at para 29. 117 It should be noted that the principle has his-his- torically been invoked to demand deference to sub-political associations and social groups such as churches and guilds. Robert Howse, “Sub- sidiarity in All but Name: Evolving Concepts of Federalism in Canadian Constitutional Law” in Contemporary Law, 1994: Canadian Reports to the 1994 International Congress of Comparative Law, Athens, 1994 (Cowansville, Que: Yvon Blais, 1995) 701 at 701. Howse warns that it was de- ployed in this manner at the end of the 19th cen- tury by the Catholic Church in order to defend Church power against democratic and socialist forces. In other words, lower levels of association may not in fact be more democratic and “closer to the people.” Ibid at 702. 118 2010 SCC 61, 327 DLR (4th) 257 at para 69. Mc- Lachlin CJ’s reasons are supported by Binnie, Fish and Charron JJ. 119 S 91(24) of the Constitution Act, 1867 (UK), 30&31 Vict, c 3, reprinted in RSC 1985, App II, No 5. 120 [1976] 2 SCR 751. 60 DLR (3d) 148. 121 Ryder, supra note 90 at 363. 122 Ibid at 363, 379.
112 Volume 19, Number 2, 2011