Mid-Term Exam Public Law 1
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Miho 1
Mid-Term Exam. Public Law 1
Celine Miho
POLS3135
Danny O'Rourke
November 2, 2023
Miho 2
Section A,1. Answer 1:
The most significant extrinsic evidence that produced itself in the case of Canada vs.
PHS Community Services Society is shown in three ways that I have found vital to the
understanding of the case for readers.
The first piece of extrinsic evidence found in the case is a survey that was conducted
on 1,000 drug users living in the Downtown Eastside (DTES). The respondents have a drug
history of injecting drugs for an average of 15 years and it was generally found that 51%
inject heroin, 32% inject cocaine, 87% have contracted hepatitis C, and 17% have HIV. The
backgrounds of the respondents were 18% Aboriginal, 20% homeless, 80% had previously
been incarcerated, 38% involved in the sex trade, and 59% had experienced a non-fatal
overdose (Canada v. PHS, 2011).
Secondly, the dangerous and desperate practices of drug users are a crucial piece of
extrinsic evidence. It is hard to say if users are fully aware of the safety of injecting drugs but,
the need for immediate use or fear of police catching the user and confiscating the drugs may
disorientate the user to unsafe use. In the back of alleyways addicts share needles, pick up
used ones and inject themselves with them, use dirty water to dissolve their drugs, and often,
in the back of these alleyways there is nowhere for the users to call for help. The shared
needles transmit HIV and hepatitis C and often lead to infections. If the user misses their vien
they can develop cysts and boils around the area (Canada v. PHS, 2011).
The third piece of evidence presented in the case is the individual claimants of Mr.
Wilson and Ms. Tomic. Both persons were residents of DTES and began their relationship
with drugs at a young age. Mr. Wilson began injecting heroin and cocaine when he was 13
and during that time he developed serious health issues such as becoming hepatitis C positive
and over the years has become critically ill. Ms. Tomic has a similar story and was born
addicted to speed. She began injecting cocaine at about 19 or 20 and began injecting heroin
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around the age of 26 and 27. She sometimes would turn to sex work to continue to pay for her
addiction. Both Mr. Wilson and Ms. Tomic had found sanctuary at the insite and both believe
that they saved themselves from a fatal overdose because of the insite. Mr. Wilson and Ms.
Tomic vouch that they have found emotional and psychological support at the insite that is
provided by staff which has played a pivotal role in them getting onto the path of recovery
(Canada v. PHS, 2011).
Gathering these three pieces of extrinsic evidence, which has been shown through
surveys, unsafe precautions taken by the users, and the individual claims made by Mr. Wilson
and Ms. Tomic have shown why it is crucial to have insites in the Downtown Eastside of
Vancouver. These three pieces of extrinsic evidence shall play a crucial role in rendering the
decision of the courts, when it comes to implementing these insites, considering that insites
will allow for safer usage, mental and physical support, and awareness for the community. It
should show the jurisdiction that insights play a pivotal role for drug users. In the case of
Canada Vs. PHS Community Service Society is relevant to jurisdiction as it revolves around
the division of provincial healthcare, division of powers, and federal drug laws which
ultimately will allow the different levels of government to intersect and address the complex
issues that follow with drug usage
Section B, 1. Answer 1:
The main legal issues concerning jurisdiction federalism and the lower courts that
presented themselves in the case are the provincial versus federal jurisdiction, healthcare
versus drug regulation, and constitutional interpretation. The main issues concerning
jurisdiction at the lower court levels, revolved around the division of powers between the
federal government and the provincial government, in this context, it has a focus on
healthcare and harm reduction. The appellate courts addressed key issues related to
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Miho 4
jurisdiction and provincial versus federal jurisdiction. It has been made evident that the
provincial courts of Vancouver want to continue to use these insites as a way to care for its
citizen's health, but the federal jurisdiction (CDSA) finds it unnecessary to have insites and
therefore uses section 4(1) and section 5(1) to deem them unreliable, and irrelevant to the city
of Vancouver as it is another form of possession and trafficking of substances. The PHS
argued that because this is a healthcare and harm reduction matter, this should be exempt
from the federal government (CDSA).
Section B, 2. Answer 2:
The arguments that appellate and trial judges are looking primarily at are the
arguments made to constitutional jurisdiction and the decision of the powers between the
federal and provincial governments. The trial judge, Pittfield, made the adjudication, and he
ruled in favour of the PHS Community Services Society. The government's efforts to shut
down the insite were deemed unconstitutional. Pittsfield determined that the operation of the
insite fell under provincial jurisdiction regarding healthcare and public health. Pittfield then
ruled that the acts on behalf of the federal government were inconsistent with the division of
powers in the Canadian Constitution. Pittfield also rejected the claim that the insite was
protected from interjurisdictional immunity due to the lack of balance between the federal
and provincial governments and it involved an overlapping jurisdiction.
The British Columbia Court of Appeal upheld the trial judge’s decision. In accordance
with Pittfield, the inapplicability of the interjurisdictional immunity and the invocation of
federal paramountcy, it was affirmed that the insite’s operation was a primary matter of
provincial jurisdiction due to it being related to health care. The Controlled Drugs and
Substances Act (CDSA) took precedence over conflicting provincial regulations. The CDSA
also highlights the importance of federal jurisdiction because it is a drug control regulation.
Miho 5
The impact of the CDSA conflicted with the provincial initiatives of healthcare and harm
reduction as the law wanted to prohibit all use of substances.
Section C, 1. Answer 1:
The Supreme Court of Canada (SCC) endorsed the lower court’s decisions regarding
the “division of powers” issues in the case of Canada (Attorney General) vs. PHS
Community Services Society. The SCC ruled that the federal government's attempt to shut
down the insite was deemed unconstitutional and that the facility's operation fell under
provincial jurisdiction. The CDSA had no leeway to exempt the provinces from its
provisions. The attorney general of British Columbia argued that sections 4(1) and 5(1) of the
CDSA should not be acknowledged by the court. British Columbia argues that the federal
laws are “implicitly constrained for operation and consistency with the public interest”
(Canada v. PHS, 2011), resulting in the province establishing activity that will serve the needs
of the public and exempt any from criminal or federal laws. The SCC did not suggest that the
lower court was “wrong” in any manner, their verdict upheld the lower court decisions. It is
believed by the SCC that the lower courts were right in their beliefs as the federal
government attempted to shut down the institutes which was deemed unconstitutional.
Section C, 2. Answer 2:
In the case of Canada (Attorney General) vs. PHS Community Servies Society,
interjurisdictional immunity refers to the doctrine in Canada of the constitutional law that
protects the vital and core areas of jurisdiction and or level of government (in this case
provincial and federal). It is invoked when a level of government is interfering with the core
powers of the other government. Readers can see the impairment from the federal
government in British Columbia in attempts to shut down insites due to the usage and
possession of controlled substances.
Miho 6
The attempt to use interjurisdictional immunity by British Columbia was due to the
federal government becoming involved in the case of insites. The federal government
interfered with the provincial core of jurisdiction over healthcare and harm reduction. The
SCC’s understanding of the “pith and substance” of this interference was to determine
whether the level of the law was within its jurisdiction or its government. At the trial, PHS
declared that section 4(1) and 5(1) of the CDSA was “only concerned with suppressing the
availability of drugs that have harmful effects on human health” (Canada v. PHS, 2011). This
quote describes the core purpose of the CDSA however, these sections are only concerned
with public health and safety which has led the federal government to believe that they must
regulate the usage and control of substances.
McLachlin argued that the doctrine of interjurisdictional immunity was neither helpful
nor necessary in the case. In her view, the doctrine of interjurisdictional immunity is a legal
concept that strictly provides immunity for some areas of jurisdiction at each level of
government. Due to the CDSA, McLachlin found that it was not necessary to have this
immunity for the federal law and that the provincial levels of government were more than
capable of providing healthcare and harm reduction services. Another point emphasized by
McLachlin was that there is a “double aspect” (Canada v. PHS, 2011) and there needs to be a
balance between the the legitimate legislative objectives of both levels of government.
McLachlin’s argument is quite persuasive in the context of “pith and substance”. The
pith and substance of the CDSA was drug control while the operation of the instie was to
cater to the healthcare of the users. McLachlin found it unimportant to invoke
interjurisictional immunity due to there being no considerable damage or interference to the
provincial government. The understanding from the SCC on pith and substance was used to
determine the constitutional validity of the federal government's actions in this case. The
doctrine of pith and substance used by the SCC identified that the federal government had
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Miho 7
infringed on the provincial health care of British Columbia. The persuasiveness of
McLachlin’s urge to have a harmonious balance on federalism inquired that invoking the
doctrine was not the best solution. The need for cooperative federalism, pith and substance,
and the lack of substantial impairment is what had led McLaclin to make the final decision of
rejection.
Section C, 3. Answer 3:
The remedy that the SCC chose was fashioned by allowing the insite to continue its
services to the public. The SCC recognized that this is a crucial service to have for the public
and the SCC validated the insite importance. The SCC also recognized the importance of
cooperative and evidence-based information that was presented when rendering the decision
to allow this service to continue and to address social issues. The SCC had many other
possible remedies in this case.
First, the SCC could have completely shut down the insite seeing it as a doorway to
promote the usage of illicit drugs and territory for dealers to prey on. If the SCC had gone
with this decision then they would have upheld the federal government’s jurisdiction under
the CDSA however, reduction efforts would be made difficult for the public and the province
of British Columbia. This could also cause a rise in controversy from the general public and
cause more harm to users who do not take the proper safety measures when injecting.
Secondly, the SCC could have granted a provincial exemption for the insite. The
exemption would have allowed the province’s insite to operate and provide their harm
reduction and health care services without violating any federal drug control laws (CDSA).
Allowing a full provincial exemption for the instite is beneficial only in part. While the
intention of the insite is to care for substance users, ensure harm reduction, and healthcare, it
can become grounds for excessive drug use and contradict the insites initial purpose.
Miho 8
Finally, The SCC could have declared for federal paramountcy. This would mean that
the federal law would prevail over all provincial laws reducing the insite’s operation and
deeming it to be illegal. If the final decision was to declare federal paramountcy, the health
care and harmful preventions that the insite implements for society would be no more and the
easy answer would be to incarcerate and take possession of any illicit drugs, dealers, and
substance abusers.
Had the SCC gone with any of these three other provisions, it could have become
quite controversial for the SCC, province, and federal government. This subject of keeping
the insites open is multifaceted. People’s views on how this could change the lives of many
positively or negatively when it comes to the final decision of keeping these insites open
depends on the decision from the SCC. I believe that the ruling by the SCC to keep the doors
open, with restrictions to operation, of the insite was the appropriate decision that could have
been made. It is the appropriate decision because it allows for health care and harm
prevention to continue. Not only do the insites provide bodily health but it is also a beacon of
hope for some people as the insites provide mental health support groups and psychotherapy
which is a step in the right direction for people to get back to who they once were before
substances. Whilst there are some restrictions on the insites, I also believe that this was a
powerful move by the federal government to put some scarce in citizens not to abuse and take
advantage of the federal government and Canada’s jurisdiction. The SCC recognized that the
federal government's attempt to shut down the insite was unconstitutional, and began the
balance between federal and provincial jurisdiction.
Miho 9
Bibliography
Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134.
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