Case Comment: Canada (Attorney General) v PHS Community Services Society

Abstract

In September of this year, the Supreme Court of Canada released its decision in Canada (Attorney General) v PHS Community Services Society (“PHS Community Services Society”).[1] PHS Community Services Society is undoubtedly a landmark decision. Most importantly, the Court ordered the continued operation of Insite, North America’s only supervised injection site, and a health program that has proven to be overwhelmingly effective in addressing addiction drug use in Vancouver’s Downtown East Side (the “DTES”). But the decision is also critically important as part of the Supreme Court’s body of constitutional jurisprudence. In this case comment, I review the Court’s decision, and discuss three important issues raised by the Court’s analysis: (a) the availability of ministerial discretion as an “antidote” for an otherwise unconstitutional law; (b) what insight the decision may provide with respect to the relationship between the Court and Parliament; and (c) PHS Community Services Society’s utility as a precedent for future supervised injection sites.

[1] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] SCJ no 44 (QL) [PHS (SCC)].