Chinatown & Area Business Association v. Canada (Attorney General)

Chinatown & Area Business Association v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-02-27
Neutral citation
2019 FC 236
File numbers
T-1764-17, T-1765-17, T-1766-17
Decision Content
Date: 20190227
Docket: T-1764-17
T-1765-17
T-1766-17
Citation: 2019 FC 236
Ottawa, Ontario, February 27, 2019
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CHINATOWN AREA BUSINESS ASSOCIATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA and
ACCESS TO MEDICALLY SUPERVISED INJECTION SERVICES EDMONTON
Respondents
CANADIAN DRUG POLICY COALITION
Intervenor
JUDGMENT AND REASONS
I. Introduction
[1] The Applicant, Chinatown and Area Business Association (hereafter CABA), seeks judicial review of exemptions to the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] issued by Health Canada which allow for the operation of three supervised consumption sites (SCSs) within close proximity in their community, in addition to a separate in-patient facility at a local hospital.
[2] The present application in file T-1764-17 is the consolidation of three applications for judicial review, one for each exemption decision: T-1764-17 for the SCS at Boyle Street Community Services (Boyle Street); T-1765-17 for the site at the premises of the George Spady Society (George Spady); and T-1766-17 for the Boyle McCauley Health Centre (Boyle McCauley). The records filed with respect to each application are essentially the same, save for particulars that are specific to each site. The applications were heard together and a copy of these reasons and judgment will be placed on each file.
[3] CABA submits that they are not opposed to injection drug users getting help, or to the hospital site, but contend that as representatives of a community directly affected by the decisions, they were not properly consulted on the exemption decisions. They further contend that opening three sites within six city blocks of each other, in addition to the nearby in-patient hospital site, will impose an unfair burden on the community. At the hearing, they suggested that if the applications for judicial review were granted, the order with respect to Boyle McCauley should be stayed for six months in order for supervised consumption services to continue at that location while the Minister reconsidered these matters.
[4] The Respondents – the Attorney General of Canada and the organization that applied for the exemptions, Access to Medically Supervised Injection Services Edmonton (AMSISE) – defend the decisions. AMSISE argues that Health Canada did not violate CABA’s procedural fairness rights and rendered reasonable decisions. The Attorney General makes similar arguments and contends, in addition, that CABA does not have standing to bring this application. The Canadian Drug Policy Coalition (CDPC) was granted leave to intervene to argue that third party community groups are not entitled to procedural fairness in the exemption process.
[5] From the record before the Court, it is understandable why the individuals and businesses that belong to the Applicant association believe that their concerns were not taken into account by Health Canada in the decisions to grant the exemptions and, further, that the outcome of the application process was preordained. Nonetheless, for the reasons that follow, I find that the minimal requirements of procedural fairness owed to CABA were met and the decisions were reasonable. The applications for judicial review will, therefore, be dismissed.
II. Background
A. The Parties
(1) CABA
[6] CABA is a provincial corporation created under the Municipal Government Act, RSA 2000, c M-26 and City of Edmonton Bylaw 12370 entitled Chinatown and Area Business Revitalization Zone Bylaw, adopted in 2005. The boundaries of the revitalization zone, varied from time to time, are set out in Appendix “C” to the Bylaw. The corporation represents approximately 200 retail stores, restaurants, professionals and others carrying on business in and around Edmonton’s Chinatown.
[7] CABA’s purposes, as set out in the Bylaw, are to improve, beautify and maintain property; to develop, improve and maintain public parking; and to promote the area as a business and shopping district. According to the evidence of its Executive Director, CABA also seeks to ensure that the Chinatown area is a safe and suitable environment for its members to live and work. To this end, CABA advocates on behalf of its members with government and other public officials, including the police.
[8] During the exemption application process, CABA participated in an unincorporated coalition of resident groups and business owners in downtown Edmonton which communicated with Health Canada through legal counsel (not CABA’s present counsel) as the “Urban Core Coalition” (the UCC). CABA also communicated its members’ concerns directly to AMSISE and to the Minister of Health. The UCC took no part in these applications. I accept that when the UCC communicated with Health Canada and AMSISE, it did so on behalf of the Applicant and its other members. I draw no inferences from the absence of the UCC’s other members from these applications.
(2) AMSISE
[9] AMSISE is an unincorporated alliance formed in 2012 to “document the need, develop a tailored response, consult, and garner support” for SCSs in Edmonton. The alliance includes some 25 individuals and groups, such as community agencies, people who have used injection drugs, academic researchers and local and provincial agencies. It includes officials of the City of Edmonton, employees of the University of Alberta and physicians and policy advisors within Alberta Health Services, a provincial agency.
(3) Attorney General of Canada
[10] The Attorney General of Canada is named in these proceedings as the representative respondent to defend Health Canada’s decisions and process.
(4) The Intervenor – CDPC
[11] CDPC describes itself as a civil society coalition of over 70 organizations and 3000 individuals from across Canada that has been active since 2010. Its membership includes people who use illicit street drugs, their families, medical professionals, drug policy experts, research institutes, legal organizations and service providers.
[12] CDPC was granted leave to file a brief memorandum of argument by the case management judge and, subject to the discretion of the hearing judge, the right to make brief oral submissions. In deciding that CDPC should be permitted to intervene, the case management judge held that the organization’s prior involvement in hearings relating to the legislation gave them a unique insight not shared by the Respondents. I allowed counsel for the CDPC to make oral submissions at the hearing and found their input helpful, particularly with regard to the legislative history of the CDSA exemptions.
B. The Statutory Exemption Framework
[13] The CDSA is the federal legislation that implements Canada’s international obligations and domestic policy to regulate certain drugs, their precursors and other substances. Among other provisions, it contains criminal offences that prohibit the possession and trafficking of controlled substances. CDSA section 56.1 allows the Minister to exempt persons or controlled substances from the provisions of the CDSA to permit activities at an SCS, subject to any terms and conditions that the Minister considers necessary if, in the opinion of the Minister, the exemption is necessary for a medical purpose.
[14] The exemption provision has been part of the statute for many years. As it read from 1996 to 2015, in CDSA section 56, it simply required that the Minister be of the opinion that an exemption was necessary for a medical or scientific purpose or was otherwise in the public interest.
[15] The exercise of that discretion, in the context of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] was addressed by the Supreme Court of Canada in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 [PHS]. PHS arose from a decision by the Minister of Health to refuse to renew an exemption for a safe injection facility in Vancouver’s Downtown Eastside district.
[16] In PHS, the issue was whether Insite, Vancouver’s safe injection facility, was exempt from the CDSA, either because Insite is a health facility within the exclusive jurisdiction of the Province, or because the application of the CDSA’s criminal law provisions would violate the Charter. Insite had operated under a CDSA section 56 exemption since 2003, but an extension was not granted by the Minister when it came up for renewal in 2008.
[17] Building on the decisions of the court of first instance and the British Columbia Court of Appeal, the Supreme Court concluded that the CDSA is applicable to Insite, and that the CDSA scheme conforms to the Charter. The Minister’s actions in failing to extend Insite’s exemption violated Charter section 7 and could not be justified under section 1. Accordingly, the Court ordered the Minister to grant Insite an extended exemption.
[18] In coming to this conclusion, the Supreme Court described the life of street injectors as follows, at paragraph 10:
For injection drug users, the nature of addiction makes for a desperate and dangerous existence. Aside from the dangers of the drugs themselves, addicts are vulnerable to a host of other life-threatening practices. Although many users are educated about safe practices, the need for an immediate fix or the fear of police discovering and confiscating drugs can override even ingrained safety habits. Addicts share needles, inject hurriedly in alleyways and dissolve heroin in dirty puddle water before injecting it into their veins. In these back alleyways, users who overdose are often alone and far from medical help. Shared needles transmit HIV and hepatitis C. Unsanitary conditions result in infections. Missing a vein in the rush to inject can mean the development of abscesses. Not taking adequate time to prepare can result in mistakes in measuring proper amounts of the substance being injected. It is not uncommon for injection drug users to develop dangerous infections or endocarditis. These dangers are exacerbated by the fact that injection drug users are a historically marginalized population that has been difficult to bring within the reach of health care providers.
[19] The Supreme Court noted that while conceived as an experiment, the evidence demonstrated that Insight had proven to be successful: it saved lives and improved health. And it did so without increasing the incidence of drug use and crime in the surrounding area. The decision not to grant an extension of the exemption engaged the section 7 interests of Insight’s staff and clients and, based on the evidence, was arbitrary. In determining that the Minister’s decision not to extend Insite’s CDSA exemption violated the Charter, the Court, at paragraph 131, accepted several factual findings by the trial judge relevant to this judicial review:
(1) traditional criminal law prohibitions have done little to reduce drug use in the [Downtown East Side];
(2) the risk to injection drug users of death and disease is reduced when they inject under the supervision of a health professional; and
(3) the presence of Insite did not contribute to increased crime rates, increased incidents of public injection, or relapse rates in injection drug users. On the contrary, Insite was perceived favourably or neutrally by the public; a local business association reported a reduction in crime during the period Insite was operating; the facility encouraged clients to seek counselling, detoxification and treatment. Most importantly, the staff of Insite had intervened in 336 overdoses since 2006, and no overdose deaths had occurred at the facility.
[20] The conclusion that the Minister had not exercised his discretion in accordance with the Charter was not to be taken as a licence for injection drug users to possess drugs wherever and whenever they wish, the Supreme Court cautioned. Nor was it an invitation for anyone to open a facility for drug use under the banner of a “safe injection facility.” The result, in that case, rested on the trial judge’s conclusions that Insite is effective in reducing the risk of death and disease and has had no negative impact on the federal government’s legitimate criminal law objectives: PHS, above, at para 140.
[21] The Supreme Court noted at paragraph 152 that the CDSA’s dual purposes – 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.
[22] In determining whether to grant exemptions, the Supreme Court held, the Minister’s discretion must be exercised in accordance with the Charter. The Minister should consider whether denying an exemption would cause deprivations of life and security that are not in accordance with the principles of fundamental justice. Evidence on a number of factors was to be taken into account, the Court stated, at paragraph 153:
The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.
[23] Parliament responded to PHS by adding CDSA section 56.1 in 2015: Respect for Communities Act, SC 2015, c 22, s 5. The new provision imposed 26 conditions requiring information to be submitted with any application for an exemption. Among the conditions was a requirement to submit a report on consultations with a broad range of community groups from the municipality in which the proposed site would be located.
[24] The 2015 amendments stipulated that an exemption relating to a supervised consumption site could only be granted in exceptional circumstances: only after 26 prescribed conditions had been met and after the Minister had considered a number of specified principles regarding the risks associated with illicit substance use. Taken together, the 26 conditions and the restrictions on the exercise of the Minister’s discretion constituted a formidable barrier to obtaining an exemption. The legislation also authorized the Minister to issue a public notice of the application to allow the public to provide comments in addition to those gleaned from the consultations which the applicants were required to conduct prior to submitting the application.
[25] Parliament considered the matter again in 2017. Section 56.1 was significantly amended by An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, SC 2017, c 7, section 42, introduced as Bill C-37. The changes, which were quickly adopted and came into force on May 18, 2017, removed the limitations on the Minister’s discretion that had been imposed by the 2015 Act and substantially reduced the information required to be submitted to grant an exemption. Information regarding the intended public health benefits of the site was still required. Additional information, “if any”, relating to the impact on crime rates, local conditions indicating a need for the site, the administrative structure in place and resources available to support the site and expressions of community support or opposition could also be submitted.
[26] The Minister’s discretion to give notice of any application for an exemption was retained. If issued, the notice is to indicate the time – not less than 45 days or more than 90 days – during which members of the public can provide comments.
[27] As stated by the Minister of Health in the House of Commons on May 15, 2017, the intent of these amendments was to streamline the application process for supervised consumption sites so that “communities that want and need these sites do not experience unreasonable delays in their efforts to save lives.” She noted that in the previous year, more than 900 people had died from illicit drug overdoses in British Columbia and close to 500 more had died in Alberta. The conditions required by the 2015 legislation had caused delays in establishing sites. The new process, the Minister said, would “align with the five factors set out in the Supreme Court of Canada decision in 2011.”
[28] The five factors set out by the Supreme Court in paragraph 153 of PHS, cited above, are now captured almost verbatim in CDSA section 56.1. The word “information” was substituted for “evidence” and “administrative” replaced “regulatory” in the third factor. The phrase “if any” was retained, indicating that such information need only be submitted if it is available. In cases of new sites, such as these, information on the impact on crime rates, for example, may not be available before the sites open.
C. AMSISE’s application
[29] AMSISE submitted one single application for CDSA section 56.1 exemptions for each of the three agencies on May 1, 2017, while Bill C-37 was nearing adoption in Parliament.
[30] A separate application was submitted for an in-patient SCS at the Royal Alexandra Hospital, which is also located in Edmonton’s downtown core but is over two kilometres from the three sites in the AMSISE application. CABA does not oppose the Royal Alexandra Hospital site and that application was not subject to this judicial review. But that site’s existence is relevant to CABA’s argument that three other sites were not required.
[31] AMSISE’s application included:
Written submissions;
An outline of proposed policies, procedures, and protocols;
Schematic drawings of the proposed facilities;
Community engagement study by ibis communications;
Edmonton Drug Use and Health Survey;
Alberta Health Opioids Substance Misuse Report;
A description of wrap-around supports available from the agencies and from Streetworks (a needle exchange program provided by Alberta Health Services);
A proposed budget;
College of Physicians & Surgeons of Alberta Council resolution of endorsement;
College of Licensed Practical Nurses of Alberta letter of support;
Alberta College of Social Workers motion of support;
Alberta Associate Minister of Health letter of support;
Alberta Chief Medical Officer of Health letter of support;
Alberta Minister of Justice and Solicitor General letter of support;
Edmonton Mayor letter of support on behalf of City Council; and
Edmonton Chief of Police letter of support on behalf of Edmonton Police Services.
[32] The April 2017 report of the Community Engagement Study by ibis communications, “What we heard,” was the result of a process meant to provide information to community members on why SCSs were being added to the agencies and to give them the opportunity to ask questions and raise concerns. It involved six 4-hour open house sessions in the agencies, a community questionnaire, attendance at community league and business association meetings and a door-to-door campaign. Of approximately 850 residences visited in the door-to-door campaign, they spoke to people at an estimated 40%, or 340 people. The report indicates that further information sessions with community leagues and business associations, including CABA, were planned.
[33] The report notes that the majority of residents and business owners reacted positively to the idea of decreasing the amount of people injecting in public and decreasing needle debris in the neighbourhood. The report also notes positive community reactions to embedding SCSs in existing centres where drug users already attend and can get additional assistance and services.
[34] Conversely, the report notes some residents were concerned about concentrating yet more services in their neighbourhood, which they felt already had a disproportionate amount of services for marginalized persons. Residents also voiced concerns over public safety and a potential increase in gang or drug dealing activity around the facilities.
[35] AMSISE’s proposal was also based in part on the University of Alberta’s School of Public Health’s Edmonton Drug Use and Health Survey. The survey was conducted in partnership with AMSISE and consisted of a “convenience sample of participants” recruited from in and around three inner-city agencies, including Boyle Street and Boyle McCauley.
[36] To be eligible for the survey, participants had to report using illicit drugs at least once a month over the previous six months, report spending at least two days per week in Edmonton’s inner city, be at least 15 years of age and be capable of providing informed consent. The survey specifically oversampled people who inject illicit drugs. Participants were provided a $20 honorarium in exchange for their participation. The survey findings were based on data from 320 participants, 311 of whom were recruited from Boyle Street and Boyle McCauley.
[37] The survey findings note links between regular illicit drug use and inadequate housing, risk behaviours (such as sharing syringes, injecting in public, binge drug use and injecting alone), violence and health problems (mental, physical and sexual). The survey findings also note a link between illicit drug use and unmet health needs.
[38] Over 90% of participants who had injected drugs over the past six months would use a SCS if one opened, the survey reports. More than 75% of these participants indicated they would walk no further than one kilometre to access a SCS. The majority of these participants were still willing to use a SCS if most of the proposed rules, such as registration, post-injection monitoring, no sharing of drugs and video surveillance, were enforced.
[39] The authors of the survey note several limitations. The results are a “snapshot” study only and cannot help draw causal influences or track patterns or trends; the survey likely overestimates drug users’ willingness to use services as sampling was not random; and it is based entirely on self-reported data. Nevertheless, the survey recommends expanding operating hours for needle exchange programs, implementing SCSs and increasing access to support services.
[40] The application also included Alberta Health’s 2016 Q4 Opioids and Substance Misuse report. The report notes that in 2016, 80% of apparent fentanyl overdose deaths occurred outside the central urban core. In the same period, however, the highest concentration of Emergency Medical Services (EMS) responses to opioid related events in Edmonton were downtown, including Central McDougall, McCauley and Boyle Street, the areas in which the proposed sites would be located.
[41] Letters of support from local politicians, representatives of police services, provincial politicians and health personnel were also submitted. In addition, Health Canada received direct submissions supporting AMISES’s proposal from community members and Edmonton’s police chief. One form letter of support was received 166 times, apparently as a result of AMSISE’s campaign asking the public to email support to Health Canada.
[42] Direct submissions opposing AMSISE’s proposal were received from business operators, community members (some of whom indicated they resided in the downtown core), the UCC and CABA.
[43] AMSISE’s proposal was described in the application as tailored to the Edmonton context. In contrast to that in Vancouver, it involved embedding SCSs within the three existing community agencies. It was submitted that sites at the three agencies would complement the proposed in-patient services at the Royal Alexandra Hospital. The hospital would encourage outpatients to attend one of the three community agencies. Instead of a stand-alone facility like Vancouver’s Insite, the three small-scale sites would offer their services in agencies that already provide health, social and harm-reduction services to the targeted population. In 2016, the three agencies were responsible for 98% of the syringes given out in central Edmonton. Building on these existing relationships, AMSISE’s proposal sought to leverage existing services in each agency and make them available to SCS clients. Spreading the services across the three agencies, including overnight staffing at George Spady, would allow for 24/7 access to a SCS. Streetworks, Edmonton’s needle exchange program, would coordinate services between the agencies.
D. The Review Process
[44] Health Canada confirmed receipt of AMSISE’s application for the three exemptions on June 2, 2017 and proceeded to assess it on the basis of the CDSA as it read following Bill C-37’s Royal Assent and coming into force.
[45] AMSISE and Health Canada communicated regularly over the phone and over email during the application’s assessment. On July 5, 2017, for example, Health Canada contacted AMSISE to inquire whether AMSISE was aware of a local community group in Edmonton that did not support the proposed SCSs. In reply, AMSISE submitted a five-page “Community Concerns and Responses” document on July 26, 2017.
[46] As noted above, CABA was a member of the Urban Core Coalition and took part in the UCC’s meetings and communications with Health Canada. The UCC contacted Health Canada on May 20, 2017 and pointed out that, according to the Alberta Health survey, most opioid-related deaths in Edmonton occur outside the downtown core.
[47] The UCC asked Health Canada to withhold approving the exemption until a complete analysis was conducted of the need for and effects of clustering three sites in the distressed downtown core and of the effects of diverting resources from other areas.
[48] The coalition raised a number of specific objections to the AMSISE proposal. The Edmonton Drug Use and Health survey, the UCC argued, was predisposed to its own conclusion, and the results conflicted with public health data indicating the greatest need is outside the city core. The provincial government had placed undue pressure on the City of Edmonton to endorse AMSISE’s proposal despite the absence of a public health emergency. The public consultations were inadequate and the survey samples too small to obtain an accurate picture of public attitudes. The material used to inform participants was only available in English despite the large proportion of residents of the affected area being of Chinese origin. Indigenous people were not involved in the proposal despite their over representation in the drug using community. AMSISE had failed to present convincing evidence of the need for three separate sites. The proposal would contribute to the “spatial concentration of poverty” and would force needy people into the already distressed downtown core, the UCC argued.
[49] Following a series of further communications from the UCC, Health Canada responded on September 15, 2017. Health Canada advised that they were in the process of reviewing the information submitted by AMSISE, including a summary of the community’s views on the proposed SCSs, copies of all written submissions and a description of the steps AMSISE would take to address any concerns raised in consultations. Health Canada invited the UCC to provide specific comments or concerns by September 29, 2017. They later extended this deadline to October 9, 2017.
[50] AMSISE and Health Canada contacted the UCC on September 22, 2017 to provide links and attachments to documents AMSISE had submitted to Health Canada. The UCC acknowledged these communications the same day and raised further objections to the process, contending that Health Canada had prejudged the application and was now trying to justify its conclusion. A further exchange took place on September 25, 2017, in which the UCC reiterated its concerns of prejudgment and bias in the decision-making process.
[51] On September 29, 2017, the UCC wrote again to Health Canada, noting a provincial politician announced that a decision would be made in AMSISE’s application on October 6, 2017. The UCC complained that this would mean a decision would be made mere hours after their submissions (then due by 5 pm on October 4), indicating Health Canada had no intention of properly considering the UCC’s evidence.
[52] On October 1, 2017, the UCC informed Health Canada that they had been provided with an incomplete version of AMSISE’s “Community Concerns and Responses” document and requested that Health Canada provide the public a 45 to 90-day commentary period, as contemplated by CDSA subsection 56.1(4), in light of the novel issues raised by AMSISE’s application.
(a) The UCC’s objections to the proposal
[53] On October 9, 2017, the UCC submitted a 66-page letter, along with 38 pages of attachments, setting out its specific concerns with the AMSISE proposal and the review process.
[54] Among other objections, the UCC contended that AMSISE’s application was barred for misrepresentation contrary to CDSA section 46.1, as enacted through Bill C-37. The alleged misrepresentations related to conflicts between statements in the application and information obtained by the UCC through Freedom of Information requests to the City of Edmonton.
[55] The UCC claimed that the public information received indicates that AMSISE had decided on the three-site model, and had even chosen the three specific sites, as early as November 23, 2012. The Edmonton Drug Use survey used to justify this approach was crafted to support this conclusion, the UCC claimed. Thus, AMSISE’s statements about the survey were false or misleading. As were statements, the UCC claimed, about the hours and resources available at one of the sites, George Spady. The statement that none of the agencies could offer 24/7 coverage is patently untrue, the UCC argued.
[56] The UCC further claimed that AMSISE’s use of data relating citywide consumption with drug injection data in the downtown core was misleading. Only three of the last 75 fentanyl-related deaths occurred in the downtown core, it argued; this leaves the remaining 72 deaths, or 96%, unaddressed by AMSISE’s proposal. The proposal did not address other concerns, such as the incidence of Hepatitis C cases. As a result, the UCC argued that the claim that the sites were required downtown to respond to overdose deaths is patently untrue.
[57] Claims by AMSISE that the operators of the chosen sites are responsive to concerns about public disorder at their locations are contradicted by City by-law enforcement records. Reliance on Vancouver data about decreased crime in the vicinity of Insite was not justified as it was dependent on a greater police presence at one site. The three-location model, designed to allow users to travel between the sites, may entrench crime in these pathways, the UCC submitted.
[58] In the result, the UCC argued, AMSISE could not fulfill its promise to operate SCSs to benefit public health, safety, and security. If, despite their opposition, Health Canada decided to approve the exemptions, the UCC argued that the exemptions must include strict conditions, including independent third-party monthly reporting on conditions around the SCSs.
(b) Health Canada’s reaction to the UCC’s submissions
[59] A Health Canada “Alberta SCS Application Summary” document confirms Health Canada received and reviewed the UCC’s submissions. In response, Health Canada proposed an additional exemption condition requiring AMSISE to provide Health Canada with additional data within 90 days of opening.
[60] On October 12, 2017, Health Canada prepared three Memoranda summarizing the applications for Boyle Street, George Spady, and Boyle McCauley. The Memoranda state that AMSISE’s application provides substantial information in relation to the relevant criteria and seeks an approval or a rejection of each exemption application. Attached to the Memoranda are Health Canada’s assessments of AMSISE’s application against the relevant criteria.
(c) CABA meeting with Minister
[61] On October 17, 2017, CABA and other groups were invited to meet with the Minister on October 19, 2017 to “share [their] concerns about the process for approval of safe consumption sites.” CABA’s Executive Director understood from the invitation that she would have an opportunity to discuss CABA’s concerns about the proposed SCS locations.
[62] On October 18, 2017, just before the scheduled meeting, CABA and other community groups learned that Health Canada had already approved the exemptions on October 17. As a result, some of the people invited to attend the meeting chose not to for that reason. CABA’s Executive Director attended to express her concerns. She was informed that the decisions were made and would not change.
E. The Decisions
[63] As noted, on October 17, 2017, Health Canada approved AMSISE’s exemption application. Hand-written notes in the record indicate that Health Canada considered: security information including surveillance cameras; EMS and overdose data; AMSISE’s proposed evaluation plan and liaison committee; community support and concerns; and the evidence of a medical need for SCSs.
[64] Health Canada communicated its decisions to AMSISE the same day. Amongst the exemption conditions was a requirement that, for each site:
[AMSISE] must provide a report of the impacts of the supervised consumption services on the neighbourhood where the Site is located. These impacts could include, but are not limited to, general demographics of the clients served, public complaints, overdoses in the vicinity, drug-related crime, improperly discarded syringes, public disorder, ongoing community engagement and mitigation efforts, etc. The report should be sent to [Health Canada] 90 days after the Site begins offering services to the public and will be made publically available.
III. Issues
[65] Having considered the parties’ submissions, the issues the Court must address are the following:
Does CABA have standing?
Was CABA entitled to procedural fairness? If so, at what level?
Did the exemption process violate CABA’s procedural fairness rights?
Were the decisions reasonable?
[66] Not all of the parties submitted arguments relating to each issue. The Attorney General raised the issue of CABA’s standing, but not AMSISE. AMSISE also took no position on the standard of review. And as noted above, CDPC’s intervention was limited to the interpretation of CDSA section 56.1.
IV. Legal Framework
[67] The relevant Federal Courts Act and CDSA provisions are attached in Annex “A”.
A. The test for standing
(1) Directly affected
[68] Section 18.1 of the Federal Courts Act, RSC 1985, c F-7 provides that an application for judicial review may be made by the Attorney General of Canada or “by anyone directly affected by the matter in respect of which relief is sought.”
[69] In order to be directly affected by a decision made by a federal board, commission or other tribunal – in this instance, Health Canada’s decision to approve the exemptions – the decision must affect a party’s legal rights, impose legal obligations upon it, or prejudicially affect it in some way: Rothmans of Pall Mall Canada Ltd v Minister of National Revenue, [1976] 2 FC 500 at 506, 67 DLR (3d) 505 (CA); Bernard v Close, 2017 FCA 52 at para 2.
[70] Where a party’s interests are purely commercial and they were not a party before the decision maker, they will not be directly affected: CanWest MediaWorks Inc v Canada (Health), 2007 FC 752 at para 17, 68 Admin LR (4th) 81 [CanWest], aff’d on other grounds 2008 FCA 207; Aventis Pharma Inc v Canada (Minister of Health), 2005 FC 1396 at para 19.
[71] Additionally, where a party has a right to procedural fairness, they must also have the right to bring the matter to Court to establish a violation of that right: Irving Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116 at para 28, [2010] 2 FCR 488 [Irving]. The Federal Court has discussed the interplay between standing and procedural fairness at length: P&S Holdings Ltd v Canada, 2015 FC 1331 at paras 30–39, 23 Admin LR (6th) 32 [P&S].
(2) Public interest standing
[72] Section 18.1 has been interpreted as being broad enough to also allow standing for parties who meet the public interest test: Williams v Canada (Minister of Fisheries and Oceans), 2003 FCT 30 at para 8, aff’d 2003 FCA 484; Canada (Royal Canadian Mounted Police) v Canada (Attorney General), 2005 FCA 213 at para 56, [2006] 1 FCR 53.
[73] To grant public interest standing, the Court must consider three factors: (1) whether there is a serious justiciable issue; (2) whether the party has a real stake or genuine interest in that issue; and (3) whether the proposed suit is a reasonable and effective way to bring the issue before the courts: Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236 at 253, 88 DLR (4th) 193; Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37, [2012] 2 SCR 524 [Downtown Eastside].
B. Standard of review
[74] There is no dispute between the parties on the standards of review to be applied to the decisions at issue in this proceeding. Deference applies to exercises of discretion in the administrative law context, and such decisions are subject to the reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190 [Dunsmuir].
[75] A decision is reasonable if it is justified, transparent, intelligible, and falls within a range of possible, acceptable outcomes defensible in fact and in law: Dunsmuir, above at para 47. The decision maker’s reasons need not be perfect, nor do they need to include all arguments or details the reviewing judge would have preferred; so long as the reasons allow the reviewing court to understand why the decision maker made the decision, and to determine whether the decision is within the range of acceptable outcomes, the reasons meet the Dunsmuir criteria: Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16–18, [2011] 3 SCR 708.
[76] The Federal Court of Appeal has recently clarified that issues of procedural fairness do not involve applying a standard of review; rather, the reviewing court is to determine whether the decision maker followed a fair and just process, in light of the substantive rights and consequences involved: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54.
C. Procedural fairness
[77] Generally, a duty of procedural fairness applies to administrative decisions that affect an individual’s rights, privileges or interests: Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at 653, 24 DLR (4th) 44. This duty can, however, be ousted by clear statutory language or necessary implication: Canada (Attorney General) v Mavi, 2011 SCC 30 at para 39, [2011] 2 SCR 504; Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at paras 21–22, [2001] 2 SCR 781 [Ocean Port].
[78] Where a party is entitled to procedural fairness, the extent of procedural fairness is to be determined case-by-case, according to the following five non-exhaustive factors: (1) the nature of the decision made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute; (3) the decision’s importance to the individual challenging the decision; (4) the individual challenging the decision’s legitimate expectations; and (5) the procedural choices made by the decision maker, especially when the d