Context, Choice, and Rights: PHS Community Services Society v. Canada (Attorney General)

Constitutional law cases that revolve around the rights or circumstances of those groups most marginalized in Canadian society are not frequent cause for celebration. Typically, these cases push the boundaries of classical liberal understandings of the rights our Canadian Charter of Rights and Freedoms protects, asking the courts to recognize social and economic dimensions to liberties that are traditionally and popularly more narrowly construed. Such demands are more often than not sidestepped (or rejected outright) by courts, with the result that activist agendas focusing on leveraging Charter rights to achieve significant social change are less compelling than initially imagined. It is simply not clear that the turn to courts as a strategy of social, political, and economic transformation is the best use of sparse resources. However, a recent British Columbia case - PHS Community Services Society v Canada (Attorney General) -complicates simple political assessment of the relationship between rights litigation and social struggle. This case brings together two separate actions, each challenging the constitutional ability of the federal government to criminalize supervised safe injection of prohibited drugs in a provincially established safe injection site, located in Vancouver's Downtown Eastside. Challengers to federal criminalization were successful at both the British Columbia Supreme Court and Court of Appeal. Leave to appeal has been granted at the Supreme Court of Canada. The case engages a wide swath of constitutional issues: legal rights under the Charter and interesting (albeit at times obtuse) division of powers arguments about interjurisdictional immunity and federal paramountcy. While the case is, so far, a victory for the rights claimants, the author argues that the manner in which the way was cleared for that victory may compromise or constrain future constitutional arguments. The framing of the reality at issue and its relevance to the unpacking of the Charter's section 7 rights, retains too narrow a scope for these rights to be positioned as reliable triggers for progressive social transformation. This essay has three sections. First, it begins by providing some context to the case, telling a selective story about the area and the safe injection facility that have spawned the lawsuit. Second, it looks at the two decisions so far rendered in the case, at the section 7 bases of the judgments at each court level, and at the linkage of legal argument and contextual factors key to the outcomes that relate to section 7. While the case also entails division of powers arguments for interjurisdictional immunity and federal paramountcy, these aspects are not considered. Finally, the essay considers how decisions, so positive in outcome for the rights claimants in this case, could nonetheless cast a shadow on possible future cases representing the interests of low-income or disadvantaged plaintiffs. It concludes with a caution. The rejection of individual agency as relevant to resolution of the rights issue in this case demands broader principled extension to all rights analysis. A commitment to social justice and substantive equality demands no less.

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