What I would like to speak to is exactly what my hon. member is shouting about from across the way, a little bit about constitutional law and the constitutional values that are impacted by this bill.
Let me begin by mentioning that in 2011, the Supreme Court of Canada, in the PHS Community Services case, did make clear that section 7 of the charter, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, did apply.
Health and life itself are at stake when the federal government decides to treat as criminal, under federal jurisdiction over criminal law, a health initiative by a province. This decision to treat it as criminal, and in that way not permit the provincially approved activity, occurs by way of the Minister of Health declining to grant an exemption from the ordinary application of, in this case, the CDSA, the Controlled Drugs and Substances Act.
The Supreme Court ruled that the government had indeed violated the charter in the following terms. Let me please read the key paragraph, which is paragraph 136 of that judgment:
The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision...would have been to prevent injection drug users from accessing the health services offered by Insite, threatening the health and indeed the lives of the potential clients. The Minister's decision thus engages the claimants's s.7 interests and constitutes a limit on their s.7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary, undermining the very purposes of the CDSA, which include public health and safety. It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease for injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on the possession of illegal drugs on Insite's premises.
I would remind everybody in this House today that this was a unanimous decision by the Supreme Court of Canada. I would also note two key shorter passages, which I will turn to briefly, that make clear that the combination of the legal effect of section 7 of the charter and the guidance for the exercise of discretion in the CDSA itself means that ministerial discretion is not unfettered. It must be undertaken in accordance with the rule of law, which refers, of course, to both the Constitution and the statute itself.
Let me draw everybody's attention to the last sentence in paragraph 151, which says:
As always, the minister must exercise that discretion within the constraints imposed by the law and the Charter.
The court then goes on, in paragraph 152, to say:
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.
The court went on to order the minister to grant such an exemption in this case, which leads us, of course, to the present bill, which is, in effect, an attempt to do either an end run around the Supreme Court judgment or to perhaps even overturn and resist that judgment.
Now, it may be that the government is hoping that it can do an end run around, or even circumvent, the Supreme Court judgment by downplaying, in the new amendments to the CDSA, references to the positive health effects of a system like the injection site system and to public health, despite the fact that public health remains one of the two purposes of the CDSA. They cannot get away from that.
Also, the Conservatives have written into the act that in the final analysis, when the minister ultimately decides whether she is going to accord an exemption, this is to be done only in exceptional circumstances.
The government may think that by writing the law in this way, it would escape the scope of the Supreme Court ruling. However, the government would really be throwing the question back to an inquiry that will eventually end up in the courts over whether the amended act itself violates section 7 of the charter for totally failing to give the health of users the kind of priority that section 7 of the charter would suggest is necessary.
Here I would like to believe that the Minister of Justice has had thorough advice from his officials on the constitutionality of the bill so as to exercise the duty he has under section 4.1(1) of the Department of Justice Act.
Regrettably, we have all come to learn in the last year that the standard of review that goes on in the Department of Justice these days, and perhaps for longer than we realize, borders on the farcical. A whistleblower has come forward to tell us that instructions have been sent to lawyers to say that if there is a 5% chance that a provision or law would pass muster in the courts under the charter, then it is fine to recommend that it go ahead as being constitutional from the perspective of introducing the law.
I have no confidence at all that the mere fact that this is before the House means that some kind of analysis has been undertaken that suggests that it is presumptively constitutional. Under the current government, that is not the case.
Apart from the fact that on the face of the text it might be unconstitutional, there are two other ways in which the bill would almost certainly be found constitutionally suspect.
The first is that the very intention of a statute under our constitutional law, of course, cannot be to infringe upon a constitutionally protected right. Here, and very unusually, there is every sign that the very intent of the government is, in fact, to block approval of any safe injection site anywhere in this country.
Now, it is very rare for courts to find such direct intent to actually infringe a right, but in the situation at hand, judges will find a good deal of evidence, including in speeches made prior to this House rising for a break and in speeches made by Conservative members of Parliament. It can also be found, I would say, by inference from two things. In clause 5 of the bill, there is a listing of no fewer than 26 criteria the Minister of Health would need to consider by way of information sources if he or she was going to grant an exemption. It is not just 26; a number of these have subsections. Well over 30 separate kinds of detailed information would have to accompany an application for such a safe injection site before the minister even decided whether she was going to look at the issue.
There is also the excision of all public health references and individual health benefits from the guiding principles listed in proposed subsection 56.1(5) of the amended act.
The second thing that might cause this to be looked at suspiciously, from a constitutional point of view, is that there is a constitutional principle of fundamental justice under section 7 according to which it is unconstitutional to hold out a defence or an exemption from a criminal law prohibition if that defence or exemption is arbitrary or illusory. Such a defence or exemption is arbitrary if it is available to some but not to others. This was essentially part of the basis for the Morgentaler ruling. A defence or an exemption is illusory if nobody will be able to access the defence or exemption or where access is so uncertain or unlikely that the defence or the exemption is essentially unavailable.
On that basis alone, given the structure of Bill C-2, I would go so far as to predict that there will be courts finding that it is unconstitutional under section 7 of the charter.
