Insite and Interjurisdictional Immunity

Osgoode Hall students, Kristen Duerhammer and Daniel Styler, recently posted on The Court an interesting paper regarding interjurisdictional immunity as it relates to the Insite decision,

In the Insite case, the claimants argued that interjurisdictional immunity should be applied to provide exemption for the Insite safe injection facility from federal criminal laws that prohibit the possession and trafficking of controlled substances on the grounds that Insite is a health facility within the exclusive jurisdiction of the Province. While the Supreme Court found a Charter-based exemption for Insite, it determined that interjurisdictional immunity was “neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government” (Insite at para 70)…
the Supreme Court’s ruling in the Insite case has served to further the centralization of powers by overlooking the asymmetrical application of interjurisdictional immunity as a justification for the doctrine’s narrowing scope, declining to apply the doctrine in a case where a federal law would shut down a critical provincial undertaking and by providing little to no framework for future application of the doctrine as it relates to the protection of provincial heads of power.

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.