Freeze on overdose prevention sites engages Charter rights

News conference following 2011 Supreme Court ruling with Insite's supporting partners. Photo: Vancouver Coastal Health/Flickr

On August 10, 2018, the Ontario Ministry of Health and Long‑Term Care announced a freeze on new overdose prevention sites (OPS) in the province. The freeze was effectively immediately, meaning it has impacted three OPS slated to open in Thunder Bay, St. Catharines and Toronto.

A new OPS in Toronto was scheduled to open on August 13, 2018 in the city's Parkdale neighbourhood, just days after the freeze. Activists, organizers and members of the community were outraged by the news, especially in light of a safety warning issued by Toronto Police on August 14, 2018 about a spike in overdose deaths. The opioid crisis is a national public health emergency, and the Government of Canada supports supervised consumption sites, including OPS, as part of its national strategy to address the crisis.

OPS are temporary sites where clients are provided with clean equipment when they consume drugs by injection (and sometimes other forms) and are supervised and monitored by health professionals for overdose. The aim of these and similar sites is harm reduction, but clients also are referred to other support services if they wish.

The Ministry has indicated that the freeze will be in effect while they review evidence. The aim, they say, is to ensure that people struggling with addiction get the supports that they need.

The Toronto Overdose Prevention Society and the Toronto Harm Reduction Alliance issued a joint press release on August 15, 2018, condemning the decision by the province and calling for an immediate reversal. The statement points to the fact that the evidence and data collected to date for these types of sites, nationally and internationally, has been overwhelmingly positive. In response to the Ministry's justification of needing more evidence, the statement argues, "you can't evaluate sites that are not allowed to open, or sites that have been forced to close because of an ideologically driven agenda that is hostile to evidence‑based interventions."

In the meantime, an unsanctioned OPS opened up a few blocks away from the planned OPS in Parkdale, and continues to operate in spite of the freeze.

Supreme Court ruling on supervised injection sites

In the 2011 case of Canada (Attorney General) v PHS Community Services Society, the Supreme Court of Canada considered Insite, the supervised injection site in Vancouver. Insite had been approved by the federal health minister as qualifying for an exemption under the Controlled Drugs and Substances Act (CDSA). The exemption allowed people to possess and consume prohibited substances at the site. Clearly, without this exemption the site would not fulfill its function, since staff and clients would fear criminal repercussions from possession of narcotics at the site. When the minister did not extend the exemption after several successful years in operation, an application was commenced arguing the decision violated the Charter of Rights and Freedoms.

The Supreme Court found that the minister's decision not to grant the exemption under the CDSA infringed on the life, liberty and security of the staff and clients of Insite, violating Section 7 of the Charter. Without the exemption allowing them to be in possession of these drugs, they were denied the life-saving services at Insite, and were potentially denied liberty with criminal charges. The limitation on Section 7 was not in accordance with principles of fundamental justice. The decision was arbitrary because it undermined the purpose of the CDSA of upholding health and public safety, and it was grossly disproportionate because the effect of denying these services was far worse than any benefit of having a uniform position on narcotics.

Implications

The Supreme Court decision arose out of a different context than the situation Ontario faces now. In the Supreme Court case, the program was supported by the province, and the province's power to administer such a program was not disputed, only the ability of the federal government to attach criminal sanctions to it. The current situation in Ontario is of a provincial government that is opposed, at least for the time being, to new OPS operating at all.

Provinces have constitutional control over how health-care services are provided, but they still must operate within the framework of the Charter. If denying access to supervised injection sites was found to be an infringement on Section 7 of the Charter by the Supreme Court, the same may be said of the Ontario government's decision to halt the opening of OPS in the province.

The right to life, liberty and security of the person could be engaged by the federal health minister's decision because injection drug users were being denied access to life-saving services. The effectiveness of OPS and similar initiatives has been studied across Canada and in many parts of Europe and Australia. OPS in Canada have prevented many overdose deaths, while at the same time reducing health-care costs. The Supreme Court of Canada upheld the finding of the effectiveness of these programs in its 2011 decision on Insite as well.

The Ontario government's decision could similarly be said to be arbitrary and grossly disproportionate. It is arbitrary because denying access to OPS does not conform to the Ministry's objective of providing drug users with the support that they need, and of adequately responding to the opioid and overdose crises. It is disproportionate because the negative effects of higher incidents of overdose and death far outweigh any benefit that would come from waiting on further research, especially considering the broad body of evidence already available in support of these initiatives.

Given that the federal government, other provinces, the municipality, police services, and the Supreme Court are all actively in favour of OPS and other supervised consumption sites, the justification of Ontario requiring further research is suspect. One Toronto city councillor described her reluctance to the sites as being "a fear factor in the neighbourhood" because parents and children are afraid to "go for a Sunday stroll." Although not explicitly espoused by the Ontario government in their reason for the freeze, it is important to question how much stigma and unfounded fears of higher crime rates have played into the decision. Protecting residents' discomfort from being confronted with a crisis affecting the country must not be regarded as proportionate to saving the lives of people in need.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: Vancouver Coastal Health/Flickr

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