Omar Ha-Redeye at the B.C. Court of Appeal during the Insite hearing

The Supreme Court of Canada released its decision today on the Insite clinic in Canada (Attorney General) v. PHS Community Services,

[148] The infringement at stake is serious; it threatens the health, indeed the lives, of the claimants and others like them. The grave consequences that might result from a lapse in the current constitutional exemption for Insite cannot be ignored. These claimants would be cast back into the application process they have tried and failed at, and made to await the Minister’s decision based on a reconsideration of the same facts. Litigation might break out anew. A bare declaration is not an acceptable remedy in this case.

[149] Nor is the granting of a permanent constitutional exemption appropriate where the remedy is for a state action, not a law. In any event, such exemptions are to be avoided: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. Moreover, the Minister should not be precluded from withdrawing an exemption to Insite should changed circumstances at Insite so require. The flexibility contemplated by s. 56 of the CDSA would be lost.

[150] In the special circumstances of this case, an order in the nature of mandamus is warranted. I would therefore order the Minister to grant an exemption to Insite under s. 56 of the CDSA forthwith. (This of course would not affect the Minister’s power to withdraw the exemption should the operation of Insite change such that the exemption would no longer be appropriate.) On the trial judge’s findings of fact, the only constitutional response to the application for a s. 56 exemption was to grant it. The Minister is bound to exercise his discretion under s. 56 in accordance with the Charter. On the facts as found here, there can be only one response: to grant the exemption. There is therefore nothing to be gained (and much to be risked) in sending the matter back to the Minister for reconsideration.

[151] This does not fetter the Minister’s discretion with respect to future applications for exemptions, whether for other premises, or for Insite. As always, the Minister must exercise that discretion within the constraints imposed by the law and the Charter.

[152] The dual purposes of the CDSA — public health and public safety — provide some guidance for the Minister. Where the Minister is considering an application for an exemption for a supervised injection facility, he or she will aim to strike the appropriate balance between achieving the public health and public safety goals. Where, as here, the evidence indicates that 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.

[153] The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to 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. The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.

Canada (Attorney General) v. PHS Community Services

Liberal Minute Special Report #1 – Insite by JasonLamarche

See more on Slaw.

The case was an appeal of the Ontario Court of Appeal decision in Fraser v. Ontario, which is currently pending judgment at the Supreme Court of Canada.

The moot was judged by Paul Broad, Barry Brown, Aida Gattfield, Bob Atkinson, and Margaret Szilassy.

She spent some time with law students discussing these issues in further depth at a subsequent session.

The Honourable Madam Justice Marie Deschamps of the Supreme Court of Canada

William M. Kaplan

Justice Rand served on the Supreme Court of Canada until his retirement at age 75, after which he moved to London, Ont. and founded the law school at Western.

The first panel was titled, Is there a human right to be free from offence?

Debating the restrictions on free speech in human rights legislation
Grant Huscroft, University of Western Ontario, Faculty of Law
Richard Moon, University of Windsor, Faculty of Law
Philippe Dufresne, Canadian Human Rights Commission, Ottawa

The second panel on Intellectual property law featured Howard Knopf of Macera & Jarzyna, and  Richard Owens of Stikeman Elliot LLP.

The third panel addressed, The legal status of polygamy

Debating whether polygamy should be a Criminal Code offense
Martha Bailey, Queens University, Faculty of Law
Nicholas Bala, Queens University, Faculty of Law
Lorraine Weinrib, University of Toronto, Faculty of Law
Bradley Miller, University of Western Ontario, Faculty of Law

Keynote speaker over the lunch was Supreme Court of Canada Justice Louis LeBel.

Justice Louis LeBel of the Supreme Court of Canada

An afternoon panel looked at the recent decision in R. v. Kapp,  Racial equality, aboriginal rights, and Section 15

Dwight Newman, University of Saskatchewan, College of Law
Bryan Finlay, Weir Foulds LLP, Toronto
Craig Jones, Office of the Attorney General, British Columbia
Jonathan Kay, National Post, Toronto

The kenynote speaker over dinner was George Jonas of the National Post.

Justice Louis LeBel of the Supreme Court of Canada

Omar Ha-Redeye with John C. Major CC QC

Honourable Mr. Justice Ian Binnie of the Supreme Court of Canada, and The Honourable John C. Major CC QC, formerly of the Supreme Court, spoke on “The Role of the Supreme Court in Canadian Government”at UWO Law.

Omar Ha-Redeye asked the panel questions relating to access to justice, and the role of the judiciary in checking the excess of the legislature, especially as it related to minority rights.

Justice Ian Binnie of the Supreme Court of Canada