Insite: Right Answer, Wrong Question

Gillian Calder


I have entitled my five-minute comment: “Insite: Right Answer, Wrong Question.”1 The focus of my comments is on the division-of-powers approach used in the reasoning of Justice Huddart of the British Columbia Court of Appeal. Although asked to determine whether the legislative regime at issue was enacted validly, that is, whether it was either federal or provincial—the question that she wanted to answer, and did answer, was whether the matter should be federal or provincial. My reading of the majority reasons is that Justice Huddart (with Justice Rowles concurring) used the doctrine of interjurisdictional immunity (“IJI”) to reach the conclusion that she deemed to be the just outcome—that “the supervision of self-injections of illegally-possessed drugs in a provincially authorized and supported health care facility is dictated by the public interest in health care”2 and thus falls exclusively within provincial jurisdiction.

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