A social agency that runs a supervised consumption service (SCS) in Toronto’s Kensington Market has launched a court challenge against new legislation that will see 10 such sites shuttered across the province, arguing that the law violates the Charter of Rights and Freedoms.
Bill 223, the Community Care and Recovery Act, was passed in the legislature on Dec. 4 without committee review, input from affected communities, or debate.
Among other things, it prohibits SCSs from operating within 200 metres of schools and child-care centres. Ten sites across the province, five of which are in Toronto, fall within this radius and must close their doors by March 31, 2025.
Kensington Market Overdose Prevention Site (KMOPS), run by The Neighbourhood Group (TNG) Community Services and kept open through financial donations, is one of those sites slated to be closed. The organization also runs a child-care centre next door to its SCS.
The act also imposes limitations and restrictions on existing SCSs, bans municipalities and other organizations from seeking or supporting federal exemptions to open new ones without the province’s approval, and bars any local initiatives that aim to decriminalize small amounts of drugs for personal use.
Further, it prevents municipalities from seeking federal money for safe supply programs, again without the province’s approval.
On Tuesday, TNG held a news conference to announce the legal challenge.
CEO Bill Sinclair says that for decades, the 110-year-old organization he leads has been “listening and adapting” to meet the most crucial needs of the community it serves.
“Six years ago, in 2018, we were alarmed by the increasing overdoses in our community and we wanted to urgently learn how to prevent death and how to be part of the solution,” Sinclair said, adding KMOPS hasn’t recorded a single death since it opened five years ago.
“We did learn how to make a difference and how to save lives and since then we’ve continued to make a difference and provide life saving health care and health services, housing, employment, and more in Kensington Market.”
Sinclair says with this court challenge, filed this week, TNG, and its two co-applicants, are “demanding our right to continue to provide this care and save lives.”
Rahool Agarwal, a lawyer from Lax O’Sullivan LLP, and Carlo Di Carlo, of Stockwoods LLP, are providing pro-bono services to this case. They said their goal is to get the application up as soon as possible and are prepared to seek an injunction to prevent the restrictions in the new legislation from going into effect until it is decided.
During today’s news conference, Agarwal said they’re committed to scheduling a hearing in Superior Court before the end of March when the 10 SCS sites are set to close.
He said they believe this new legislation violates sections 7, 12, and 15 of the Charter of Rights and Freedoms, which guarantee every Canadian’s right to life, liberty, and security of the person; freedom from treatment and punishment by the state that are cruel and unusual; and thirdly, the right to equality before the law and freedom from discrimination by the Canadian government.
Agarwal argued that people who depend on SCSs will no longer have access to the services they need and as a result will “face a dramatically increased risk of death by overdose.”
“They’ll be forced to result to unhealthy and unsafe consumption, engaging their very lives on a daily basis,” he said, adding that people who use these sites will face an “enhanced risk and threat of criminal prosecution” without them.
“And finally, the law will infringe clients’ right to security of the person, because without supervised consumption, the data is clear that there will be a dramatically increased risk of infectious diseases as well as harms to other aspects of their health, including their mental and psychological well being.”
Agarwal also says the new law discriminates on the basis of “immutable characteristics,” specifically for those who suffer from substance-use disorder, which he noted is a recognized illness under the Diagnostic and Statistical Manual of Mental Disorders.
“Denying them real and meaningful access to those types of services will exacerbate the disadvantages they already face in society, the exclusion they face from Canadian society as a whole,” Agarwal said. “Most service users are already marginalized and disadvantaged in many other ways, and this will only exacerbate those disadvantages.”
He added the Community Care and Recovery Act also “intrudes upon the federal government’s powers over the criminal law.”
“Only the federal government can try to suppress conduct that it deems to be socially undesirable, and that’s what Ontario is trying to do through the back door with this legislation, and that’s why this legislation is also unconstitutional,” he said, adding they’ll be looking to the “strong precedent” set in the Supreme Court’s decision regarding the country’s first supervised injection site in B.C. for this case.
In 2011, the country’s top court ruled that the federal health minister’s decision to not to exempt Vancouver’s Insite facility from the application of criminal drug laws breached the Charter right to life, liberty, and security of the person.
New law plays on ‘heinous’ stereotypes, lawyer says
Di Carlo said this case is “about the Ontario government favouring politics over people’s lives,” and “partnership over data.”
“There’s no science-based evidence to support the idea that closing supervised consumption sites will make anyone safer,” he said, pointing to two Ontario government-commissioned reports that recommended keeping existing drug consumption sites open across the province, increasing funding to stabilize staffing and hiring permanent security guards to boost safety.
Di Carlo said they also found SCSs reduce overdose deaths, improve access to health care services for marginalized community and referrals for addiction treatment, and minimize social disorder.
“This is the science. It’s uncontroverted and overwhelming in support of supervised consumption services,” he said.
Agarwal added that this data shows SCSs “save lives in a way that other forms of medical care and treatment simply do not.”
“We know that if this law is permitted to take effect, the most vulnerable members of our society will be denied a medical service they need to survive, and people will die. And how the Ontario government can simply not only condone that behaviour, but to compel it. That is beyond me,” he said.
“Ontario knew that when it passed this law, it had reports that itself commissioned in its possession that told it that these types of services help people, they save lives, they reduce the risk of death and disease. And despite that information, they decided to pass that legislation, and therefore knowingly increased the risk of death and grievous bodily harm.”
DiCarlo went on to say that this new legislation simply “plays on heinous and pernicious stereotypes about a community that’s marginalized and unable to push back when a government acts capriciously, when it passes laws that have no rational basis and will harm lives.”
“It’s impractical to expect that the vast majority of the individuals that are currently receiving services at one of the sites that’s about to shut down will be able to walk to a clinic that’s kilometers away that might remain open. And for the ones that do remain open, they will undoubtedly become overrun, making it even harder for people to access those services,” he said.
Former Toronto mayors Barbara Hall and John Sewell are also lending their support to the Charter challenge.
Hall said that years ago she, Sewell and many others supported the Toronto Board of Health in opening supervised consumption and they continue to do so.
“We knew there was a need then and we’ve seen incredible results. We heard about the fewer losses of life, but we know that one, aren’t enough (SCS), and two, there aren’t enough treatment spots for those who want them, so we need to help,” she said.
In a statement provided to CTV News Toronto, a spokesperson for Ontario Minister of Health Sylvia Jones reiterated that the legislation is precipitated by “serious concerns” due to the “presence of drug consumption sites near schools and daycares.”
“We’ve heard from families of the harassment, verbal and physical assault they have experienced walking their child to daycare or school. We have also heard about the phone calls parents have received that their child has picked up a dirty needle, or bag of toxic drugs in the school yard,” Hannah Jensen from the health minister’s office said in a written statement.
“Enough is enough and our government is taking action to protect children and their families while taking the next step to create a system of care that prioritizes community safety, treatment, and recovery by investing $378 million to create (19) Homelessness and Addiction Recovery Treatment (HART) Hubs. Each drug consumption site closing will have the opportunity to turn into a HART Hub.”
These hubs are expected to be up ad running before the end of March.
Jensen added that these sites are “similar to existing hub models in Ontario that have successfully provided people with care, will reflect regional priorities by connecting people to more comprehensive care than the support services previously offered at Consumption and Treatment Services. These enhanced services include primary care, addiction care, support, supportive housing, and other social services.”
Solicitor General Michael Kerzner told The Canadian Press 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.
With files from The Canadian Press