Section 7 of the Charter and the Principled Assignment of Legislative Jurisdiction

This paper argues that in deciding whether state action is arbitrary, overbroad or disproportionate, contrary to section 7 of the Canadian Charter of Rights and Freedoms, courts should look beyond the relationship between the means and ends of state action and toward broader considerations about the democratic context in which such action occurs. The case of Canada (Attorney General) v. PHS Community Services Society is taken as the paper’s starting point. The re, the Supreme Court of Canada overturned the federal Minister of Health’s decision to deny Insite — a provincially supported safe injection site — an exemption from drug laws. The Court, in finding the denial arbitrary and overbroad, relied heavily on the factual record of Insite’s effectiveness vis-à-vis health and safety: Vancouver’s Downtown Eastside was facing a public health crisis related to drug use; the criminal law was not succeeding in addressing the problem; and Insite, which had benefitted from six previous years of ministerial exemption, had proven itself through multiple scientific studies to be capable of saving lives without threatening public safety. This paper advances the oretical and doctrinal arguments that the Court could have considered Insite’s heightened democratic legitimacy in determining whether the ministerial decision was arbitrary and disproportionate. If one purpose of constitutional rights is to protect those marginalized from democratic processes from an overweening state, the n arbitrariness and disproportionality should be more broadly understood. The analysis should consider, in addition to evidence about a law’s effectiveness in achieving its ends, the relative democratic legitimacy with which decisions are made. Insite, unlike the criminal law and ministerial decisions to deny any exemption, was created through the grassroots efforts of groups and individuals whose interests are least likely to be represented in traditional elected government, and was ultimately endorsed by provincial and municipal government. This pathway from the grassroots to provincial health policy was made possible by a provincial transfer of responsibility for drug services to regional health authorities precisely for the purpose of ensuring locally tailored, evidence-based health policies. The proposed interpretation of section 7 would allow the Charter to effectively play a jurisdiction-assigning function in areas of constitutional overlap between provincial health and federal criminal jurisdiction.

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