Rule & Exemption in Action

Emmett Macfarlane has an interesting post for Maclean’s discussing the legal and constitutional complexities of the brewing confrontation between the Mayor of Montréal, Denis Coderre, and the federal government about the possible opening of a number of supervised-injection centres in the city. In a nutshell, prof. Macfarlane points out that the federal government’s proposed (although still not enacted!) legislation setting out criteria for the granting of exemptions from criminal drug laws, Bill C-2, actually does a decent job of tracking language from the Supreme Court’s Insite decision, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, on when such exemptions ought to be granted. And yet the bill “lays out an amazing list of criteria the federal health minister is required to consider when approving future exemptions,” which the government may well be able to weigh and manipulate to deny exemptions. As a result, prof. Macfarlane writes, while “[i]t’s pretty obvious the federal government is intentionally making it as difficult as possible to get approval for new supervised-injection sites,” it is by no means clear that C-2 is unconstitutional.

Prof. Macfarlane observers that

[i]f the federal government refuses to provide exemptions for new proposals and defends its decision-making with reference to the court’s own criteria, it would be interesting to see the justices untangle this knot.

This brings to mind a post I wrote a few months ago, in which I argued that the Court’s approach in Insite was at odds with that which it had taken in another case involving a prohibition-and-exemption regime, albeit one dealing with abortion, R. v. Morgentaler, [1988] 1 S.C.R. 30. In Morgentaler, the majority did not consider the constitutionality of a decision to deny an exemption from the general prohibition on abortions to a particular woman. Instead, it held that, although it was intended to further legitimate governmental concerns, the exemption regime itself was unconstitutional. For the Chief Justice Dickson and Justice Lamer, its criteria were vague and generated considerable uncertainty, and indeed had the effect of making the purported availability of an exemption illusory. For Justices Beetz and Estey, the delays generated by the process were unfair because they created an additional danger to the health of the women concerned.

The federal government’s approach to granting supervised-injection sites exemptions from drug laws seems to raise all of these concerns. It is impossible to know whether an exemption will be granted, but the public statements of the ministers involved suggest that its availability may well turn out to be an illusion in practice. In the meantime, the process of applying for an exemption is long and complicated, even when all the stakeholders agree, as seems to be the case in Montréal.

To answer prof. Macfarlane’s question, then, regarding the way in which the Supreme Court might “untangle the knot” that the enactment of C-2 would create, Morgentaler suggests that, if an eventual challenge is framed so as to admit of this solution, and if the Court is so inclined, the knot could be cut by holding that the procedure for granting exemptions, although set up in response to legitimate concerns, was designed in a way that rendered it unconstitutional. Whether the Court would indeed choose this solution is an open question, not least because it is not clear why it decided Insite differently from Morgentaler. As I suggested in the post linked to above, the difference may have been the result of a different framing of the constitutional challenge. It may also have to do with the nature of the constitutional harm involved, abortion being a more obviously time-sensitive matter, and thus calling for bright-line rules ― though the risks that people prevented from using a safe-injection facility run every day they are denied access to this service should not be neglected. The Court might also have been concerned by the sheer number of abortion cases, which meant that decisions concerning them could not realistically be judicially reviewed. Depending on which, if any, of these factors was the most important one, the Court may, or may not, be amenable to changing its approach to injection-site cases.

Prof. Macfarlane is right, of course, that “[a]cross the country, others wait for the service the court protected for Vancouver addicts. They shouldn’t have to wait for another round of prolonged litigation to get it.” But, as Yves Boisvert observes in La Presse, for the current federal government “to fight a war on drugs is not enough; one must also fight a war against the drug addicts” (translation mine). Indeed, the war on drug addicts may well be a substitute rather than an addition to the war on drugs, since it seems to have the perverse effect of keeping drug consumption up instead of down. But it’s a war that the government seems intent on fighting to the bitter end. The Supreme Court should understand this, and take this sad fact into account in its decision-making.

Rule and Exemption

Here’s something that has been bothering me since I’ve recently re-read the Supreme Court’s decisions in R. v. Morgentaler, [1988] 1 S.C.R. 30 and in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 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, [93]), 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, [2013] 3 S.C.R. 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, allow courts to revisit that conclusion.