Combating drug use while respecting Charter rights

Canada (Attorney-General) v PHS Community Services Society, 2011 SCC 44 (30 September 2011)


The Supreme Court of Canada has held that the failure of the Minister of Health to grant an exemption to allow a safe injecting facility to operate notwithstanding federal anti-drug laws violated the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. This was because the evidence clearly demonstrated that the safe injecting facility was effective in saving lives and reducing drug-related harm.

The Court did, however, uphold the constitutionality of the anti-drug laws themselves.

Prohibitions on possession and trafficking controlled substances are contained in the Controlled Drugs and Substances Act S.C. 1996 and exemptions are permissible at the discretion of the federal Minister of Health.

The Supreme Court of Canada determined that the Act engages some rights contained in the Canadian Charter of Rights and Freedoms but is not in violation of those rights because of the discretion conferred on the Minister.


The opening of North America’s first government-sanctioned, safe injecting facility, Insite, was approved as a pilot research project in September 2003. The Controlled Drugs and Substances Act S.C. 1996, empowers the Minister of Health to issue exemptions for medical or scientific reasons, or for any purpose the Minister deems to be in the public interest. The Minister of Health granted Insite a conditional exemption from possession and trafficking laws. Temporary exemptions were thereafter granted until 2008 when the Minister effectively refused Insite’s formal application for a continued exemption on the basis that the site “represents a failure of public policy”.

The claimants comprised two public health bodies and two individual clients of Insite. They sought declarations that the Act is inapplicable to Insite and that its application to Insite resulted in a violation of the claimants’ section 7 rights under the Canadian Charter or, in the alternative, that the federal Minister of Health, in refusing to grant an extension of Insite’s exemption, had violated the claimants’ section 7 rights.

One question for the Supreme Court was whether the prohibitions in the Act infringed the rights to life, liberty and security of the person guaranteed by section 7 of the Canadian Charter, which can only be limited in accordance with principles of fundamental justice, and, if so, whether the infringement could be justified under section 1, which provides that such rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.


The Supreme Court held that the prohibition on possession in the Act engages the section 7 rights of the claimants but does not violate section 7 because of the discretion conferred on the Minister to grant exemptions for, among other things, health.

The Court further concluded that, while the scheme of the Act conforms to the Canadian Charter, the “arbitrary and unsustainable” actions of the federal Minister of Health in refusing to extend Insite’s exemption were in violation of section 7, and could not be justified under section 1. The Court determined that the exemption provided for in the Act “acts as a safety valve that prevents the Act from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects”.

The conclusion that the Minister had not exercised his discretion in accordance with fundamental principles of justice rested on the trial judge’s conclusions that Insite had, during its eight years of operation, been effective in reducing the risk of death and disease and had not impacted negatively on the legitimate criminal law objectives of the federal government. As such, the Minister’s actions were seen to undermine the very purposes of the CDSA — namely, the protection of health and public safety.

Relevance to Victorian Charter

Supervised injection facilities do not presently operate in Victoria. Earlier this year, Melbourne’s Yarra City Council voted 6-1 in favour of establishing a trial supervised injection facility in Victoria Street, Richmond, which was subsequently dismissed by the state government. A safe injecting site operates in Sydney and health authorities are increasingly recognising that health care for injection drug users is not simply a matter of abstinence or non-treatment.

Sections 1 and 7 of the Canadian Charter correspond to sections 7, 9 and 21 of the Victorian Charter. The rights to life, liberty and security of the person, and the ways in which they may be limited, are in fact outlined more thoroughly in the Victorian Charter, particularly in relation to arrest and detention.

Drawing on this comparative jurisdiction, we see that a law prohibiting possession or trafficking of drugs has the potential both to engage directly the rights to life, liberty and security of the person of clients using supervised injecting facilities and to engage the liberty interests of health professionals providing the supervised services (where the law provides a penalty of imprisonment).

The decision can be found online at:

Isabel Waters is a Solicitor with the Mallesons Stephen Jaques Human Rights Law Group.