Here’s something that has been bothering me since I’ve recently re-read the Supreme Court’s decisions in R. v. Morgentaler,  1 S.C.R. 30 and in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,  3 S.C.R. 134. The two cases dealt with different topics: the former is about abortion; the latter, about a safe injection clinic for drug addicts. But the statutory regimes at issue in both had a similar structure ― a general prohibition (on abortion and on possession of drugs, respectively), coupled with the possibility of authorities granting exemptions from these general prohibitions. In both cases, the Supreme Court concluded that the general prohibitions engaged the right to the “security of the person” protected by section 7 of the Charter. But the way it determined whether the statutes were contrary to “the principles of fundamental justice” and this infringed section 7 was very different.
In Morgentaler, the majority of the Court focused on the operation of the statutory scheme and concluded that because the exemption granting process was over-complicated, long, and uncertain ― when it was available at all ― the scheme itself was contrary to the principles of fundamental justice. In the Insite case, by contrast, the unanimous Court had nothing at all to say about the way the exemption-granting process functioned (or, as the evidence perhaps suggested, did not function), and instead chose to review the Minister’s exercise of discretion within that process, which it found constitutionally wanting. Accordingly, instead of finding the whole statutory scheme invalid, it ordered the Minister to grant Insite an exemption. The equivalent decision on Morgentaler would have been to say that every decision as to allow a woman who asked for an abortion would have to comply, and subject to review for compliance, with the Charter. Why the difference?
One reason that comes to mind is that both the activities at issue and the exemption-granting processes involved in the two cases were actually quite different. With abortion, time is of the essence ― delays in the exemption-granting process were not only psychologically distressing, but also increased the danger of the procedure for the women who were ultimately granted the exemption. And the decision on whether to grant one was made by committees of physicians, who presumably had little if any understanding of the relevant constitutional principles. More delay, including delay for judicial review, might be tolerable in the case of exemptions from drug laws, and the decisions are made by a government official who is, in theory anyway, supposed to be mindful of constitutional concerns.
Another possibility is that the two decisions were different because the two cases were argued differently and, in particular, because the evidence available was different. Morgentaler arose out of charges brought against doctors. It didn’t involve a woman who had applied for and been denied an exemption. The focus was accordingly on the way the entire statutory regime functioned, rather than on an individual application. And, importantly, there was a great deal of evidence about how the that regime worked for the many thousands of women (and their doctors) who needed to use it. Insite, meanwhile, was a challenge by a clinic that had applied for and been denied the exemption. There was a lot of evidence about the effects which that one decision would have on Insite’s users, but not about the way in which Ministers of Health handled the exemption process. Indeed, if I understand correctly, there could have been no such evidence, since Insite was unique.
Which is it, though? This isn’t just an academic question. If the second explanation is correct, then it is easy enough to imagine a challenge to the Canadian drug laws being framed to be more like Morgentaler ― an attack on the ministerial decision-making process itself. The government would presumably argue that the Minister is guided by and applies the Charter. But suppose that a few groups went through that process unsuccessfully and could show that Charter concerns were, in fact, ignored; or perhaps that the process just takes too much time and is too uncertain. It might not be an easy case to make, but it may be worth trying.
Of course, this brings to mind the further question, which Justice Wilson raised, but her colleagues in the majority refused to address, in Morgentaler ― whether any exemption process in ever constitutionally adequate. The Supreme Court’s decision in the Insite case suggests that it believes so. But if it can be shown that legalization would likely reduce “the health risks of injection drug use are caused by unsanitary practices and equipment, and not by the drugs themselves” (Insite, ), this would arguably amount to a difference in the available evidence that would, under the test developed in Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, allow courts to revisit that conclusion.