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Political Decisions now reviewable by the Courts – What happened to Parliamentary Supremacy?

The discretion vested in the Minister of Health is not absolute:  as with all exercises of discretion, the Minister’s decisions must conform to theCharter.  If the Minister’s decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter, then the Minister’s discretion has been exercised unconstitutionally.  In the special circumstances of this case, the Court should go on to consider whether the Minister’s decision violated the clamaints’ Charter rights.

There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather than government action.  The ability to make some choices does not negate the trial judge’s findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance.  Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.  Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions.  While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter.  The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with Charter.

The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice.  The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it.  The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives.  It thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights.  Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice.  It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety.  It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada.  The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed.  The goals of the CDSA are the maintenance and promotion of public health and safety.  The Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights.

As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy.  In the special circumstances of this case, an order in the nature of mandamus is warranted.  The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.  A declaration that the Minister erred in refusing the exemption would be inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite’s current constitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate.

On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety.  In accordance with the Charter, the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice.  Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.

Source: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44

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