Dear Sir or Madam; today finishes our discussion of vices falling under constitutional law.
Professor Craig E. Jones, Q.C., of Thompson Rivers University Faculty of Law, worked as lead counsel for the British Columbia Ministry of Justice and Attorney General from 2006 to 2012. In 2011, he argued on behalf of the Ministry at the Supreme Court of Canada on the Canada (Attorney General) v. PHS Community Services Society. This case is sometimes referred to as the "Insite" case because it concerned the legality of the Insite clinic, PHS Community Services Society's operation of Vancouver's Downtown Eastside safe-injection site.
The Dominion was grateful to speak with Professor Jones on this issue that he has always been passionate about. He has an incredible background studying, teaching, and practicing in several areas of law. He earned his law degree at UBC, his Master's Degree in Law at Harvard, and now teaches law at Thompson Rivers University, where he also earned his bachelor's degree. He has taught courses in torts, civil procedure, advanced advocacy, class actions, and ethics. Professor Jones maintains his law practice as an active member of the Law Society of British Columbia, working in legal consultation and litigation with a Vancouver firm. He is an expert in constitutional law and has litigated and consulted on other notable constitutional issues including British Columbia v Imperial Tobacco, the Braidwood Inquiry into the YVR Airport death of Robert Dziekanski, the Polygamy Reference, the Missing Women Commission of Inquiry, and the “Occupy Vancouver” courthouse-access case.
PHS Community Services Society (PHS) and Vancouver Coastal Health, under the authority of the Ministry of Health, opened the Insite safe injection clinic in 2003. It provides a safe, clean location in a troubled neighbourhood where people with drug addictions can self-inject narcotics with clean, fresh needles. The clinic serves to combat drug overdoses on the street and rates of intravenous drug-use infections. Typically, possessing illegal narcotics is a crime and allowing individuals to use illegal narcotics in a medical facility is as well. But section 56 of the federal Controlled Drugs and Substances Act (CDSA) allows the federal Minister of Health to issue an exemption for valid health purposes, allowing the clinic to oversee safe narcotic injections and provide immediate medical intervention.
From 2003 to 2008, the federal Minister of Health continued to issue this exemption. But in 2008, under the Conservative government, a new Minister declined to renew the exemption. This resulted in Insite's operations being deemed illegal. To continue operating, PHS launched a constitutional challenge at the Supreme Court of British Columbia. Ultimately, the Supreme Court of Canada ordered the federal government to continue to renew the exemption.
PHS and the Attorney General for British Columbia (with Professor Jones as lead counsel) challenged the federal government's decision based on two points of constitutional law. One was Interjurisdictional Immunity, advanced by both PHS and the Attorney General. The other was PHS's Charter of Rights and Freedoms section 7 argument.
In Canada's federal system, ss. 91 and 92 divide the distribution of powers to the federal and provincial governments, respectively. The goal is to avoid the federal government asserting authority over a provincial mandate (and vice versa). PHS and the Attorney General of British Columbia advanced the argument that the federal government's criminal power was encroaching on the province's health power. This Interjurisdictional Immunity argument failed at the Supreme Court because the Court declined to narrow the core of the federal criminal power and the provincial health power such that the two cannot overlap. Therefore, the Court found in favour of another constitutional law principle: that, in this case, the more flexible doctrines of double aspect and flexible federalism are more applicable to managing health care that comes in contact with criminal law.
Fortunately for the users of Insite, the Court found in favour of PHS's s. 7 Charter argument; that the federal Minister's decision breached the fundamental principles of justice with no reasonable justification. Section 7 protects the life, liberty, and security of the person of individuals who depend on the clinic. Insite operates to advance valid health concerns; it reduces harm and medical emergencies to individuals and the community. Because Insite operates under the same purpose as the CDSA, to maintain and promote public health and safety, the federal Minister of Health had inappropriately arbitrarily condemned it.
What are your thoughts on harm reduction initiatives in our communities? Do you agree with the government's decision to criminalize Insite's operations? Comment below!
With humble regards,
 2011 SCC 44,  3 SCR 134.
 Supervised Injection, Vancouver Coastal Health, online: <www.vch.ca/your-health/health-topics/supervised-injection>.
 Thompson Rivers University Faculty of Law, "Craig E Jones, QC," Faculty, online: <www.tru.ca/law/faculty-staff/faculty/jones.html>.
 SC 1996, c 19.