Ontario's supervised consumption site law violates Charter, group says in legal challenge
Social services agency argues law infringes on right to life, liberty and security of person
Katie Resendes says she's been a high-functioning addict for the last 16 years, but with Ontario's recent legislation to shutter several supervised consumption sites and prevent new ones from opening, she worries about the consequences for her safety and that of her friends.
"I don't know what I'll do to access harm-reduction supplies. I don't know what I'll do to access naloxone. I don't know what will happen and that's pretty scary," she said Tuesday.
For the last few years, Resendes has benefited from the services of the Kensington Market Overdose Prevention Site, run by The Neighbourhood Group Community Services agency.
Resendes is now an applicant in a legal challenge against Ontario's legislation, brought by The Neighbourhood Group and two people who have used such sites. The challenge argues the law violates both the Charter of Rights and Freedoms and the Constitution, including the right to life, liberty and security of the person.
"I've been able to work and maintain a job and a lot of that has to do with safe consumption sites and being able to use safely.
"Without them, I know that more friends will die."
Closing supervised consumption sites violates that right by forcing people who use them to resort to unhealthy and unsafe consumption, which carries a higher risk of death from overdose and increases the risk of criminal prosecution, the challenge argues.
It also argues the legislation goes against the division of powers between Ottawa and provinces, in that only the federal government can make criminal law and try to suppress what it considers a "socially undesirable practice."
"The research and the experts prove that supervised consumption sites make a positive difference, both for the individuals we meet and for their whole neighbourhood," Bill Sinclair, the organization's president and CEO, said in a news conference Tuesday.
"With this court case, we're demanding our right to continue to provide this care and save lives."
Sinclair said the closure of the sites will cause harm to people who use drugs.
"It will have the opposite effect of what they're saying they're trying to achieve because when you close safe consumption sites, the entire neighbourhood becomes an unsafe consumption site," Sinclair said.
"And that's where the needles will be."
Parks need to be safe for families: solicitor general
Solicitor General Michael Kerzner said he could not comment on the legal action, but added the province has made it clear it wants parks to be safe for children and families.
The Kensington Market Overdose Prevention Site run by the Neighbourhood Group Community Services agency is one of 10 supervised consumption sites set to close by March 31, 2025 under legislation fast-tracked by Premier Doug Ford's Progressive Conservative government and passed last week.
The legislation prohibits any supervised consumption sites within 200 metres of a school or daycare. The Kensington site is next to a child-care centre operated by the same community agency.
The law also requires municipalities to get the health minister's approval to apply for an exemption from the federal government to launch new supervised consumption sites, something Health Minister Sylvia Jones has said she would not approve in any situation.
The government favours an abstinence-based model for treatment, and plans to put in place 19 new "homelessness and addiction recovery treatment hubs," plus 375 highly supportive housing units at a planned cost of $378 million.
Katie Resendes, who has been coming to the Kensington site for a few years, said simply offering more treatment sites isn't the answer. An abstinence-based treatment model won't work, she said.
"If you're not ready, you're not ready, and what these safe consumption sites allow is, for those of us that are not ready, to be safe and reduce harm as much as possible," Resendes said.
She said she takes the subway to the Kensington location because there is no site near her home, and she's not sure what will happen if it closes.
Law will put people who use drugs at risk, court filing says
The legal challenge argues the Ontario government knowingly passed a law that will expose people who use drugs to an increased risk of death and other harms, which violates the Charter right to protection from cruel and unusual punishment
The law also discriminates on the basis of substance abuse disorder, which breaches the right to equality, it argues.
"It also reinforces the unjustified and unsubstantiated stereotype that people who use drugs and who suffer from substance use disabilities are a danger to society, and in particular to children, and are therefore not worthy of the care they need to survive," the court filing reads.
Asked about the legal challenge on Tuesday morning, Premier Doug Ford said he was unaware of it. But he spoke generally about his government's approach to addiction on Monday.
"Actually, we're putting another $360 million in to make sure we have the hubs that take care of people, not just feed them drugs, but make sure they have shelter, they have employment, make sure we have detox beds for them. You can't feed people drugs and expect everything is going to turn around," Ford said.
Lawyers hope to have case heard before end of March
Rahool Agarwal, one of the lawyers representing the applicants in the challenge, said they'll rely on the Supreme Court of Canada decision in a case regarding the country's first supervised injection site as "a strong precedent."
Canada's top court ruled in 2011 that the federal health minister's decision not to exempt the Insite facility in Vancouver from the application of criminal drug laws breached the Charter right to life, liberty and security of the person — one of the rights invoked in the Ontario challenge.
Lawyers for the applicants said they are hoping to have the case heard in Superior Court before the end of March, the deadline to close the sites. They're also seeking an injunction to prevent the restrictions in the law from taking effect until the case is decided.
Last week, Ontario's auditor general said the province's opioid strategy is outdated and a new, comprehensive approach is needed to deal with the ongoing crisis.
In her latest report, Shelley Spence also found that more than 1,600 overdoses were reversed in 2022-23 at the sites slated to close, and no one died of an overdose at those locations in the same time frame.
With files from Lane Harrison