Canada (AG) v PHS Community Services Society

The court found that s 4(1) and 5(1) of the CDSA were valid exercises of the federal law criminal power, per R v Malmo-Levine, where the court held that "protection of public health and safety from the effects of addictive drugs is a valid criminal law purpose".[5] The court rejected the respondents' argument that the provinces could be exempt from the federal criminal law power if they established an activity serving the public interest.[6] The court ruled also that interjurisdictional immunity could not shield the provinces from the federal criminal law power, given the narrowing of that doctrine in the Supreme Court's ruling in Canadian Western Bank v Alberta.

This restraint arises from the SCC's 2010 ruling in Quebec (AG) v Canadian Owners and Pilots Assn, where three related concerns were identified with the doctrine:

1. it is in tension with the dual aspect doctrine,[7]
2. it is in tension with the emergent practice of cooperative federalism,[8] and
3. it may overshoot the federal or provincial power in which it is grounded and create legislative "no go" zones where neither level of government regulates.[9]

The Court further held that the delivery of health care services does not constitute a protected core of the provincial power over health care,[10] because:

1. the proposed core has never been recognized in the jurisprudence, as courts are reluctant to identify new areas where interjurisdictional immunity applies;[11]
2. "the sheer size and diversity of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread;"[12] and
3. "application of interjurisdictional immunity to a protected core of the provincial health power has the potential to create legal vacuums ... [which are] ... inimical to the very concept of the division of powers."[13]

As McLachlin CJ noted,

[70] In summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Quite simply, the doctrine is neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government.

The court found that s 4(1) of the CDSA engaged s 7 of the Charter but operated in accordance with the principles of fundamental justice. Although that provision touched upon Insite users' life, liberty and security of the person by prohibiting drug possession at Insite, the s 56 exemption prevents s 4(1) of the CDSA from acting arbitrarily, overbroadly or grossly disproportionately upon Insite users.

However, the court found that the Minister's failure to grant the exemption limited Insite users' s 7 Charter rights and breached the principles of fundamental justice. The failure to exempt Insite was arbitrary because it undermined the CDSA's purpose; namely, the "maintenance and promotion of public health and safety".[14] The failure was also grossly disproportionate in that it denied Insite's services, which had not had any "discernable negative impact on the public safety and health objectives of Canada during its eight years of operation".[15]

While the court did not consider whether the Minister's failure to grant an exemption could be saved by s 1 of the Charter, they found that there would have been no rational connection between the Minister's failure to grant the exemption and the CDSA's stated purpose.

The court exercised its s 24(1) Charter power and ordered via mandamus the Minister to grant Insite the exemption.[16] The court noted that the Minister ought to grant future exemption requests when the injection facility would "decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety".[17]