Court hears Ontario consumption sites free to relocate contrary to past statements
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Ontario’s new law on supervised consumption sites does not ban them entirely and those deemed too close to schools and daycares are free to relocate farther away, government lawyers argued in court Tuesday.
That’s contrary to numerous public comments from Health Minister Sylvia Jones, who has said no supervised consumption sites will open after the closures of 10 sites located within 200 metres of a school or daycare.
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The Neighbourhood Group, which runs the Kensington Market Overdose Prevention Site in downtown Toronto, launched a lawsuit in December along with two people who use the space. They argue the new law violates both the Charter of Rights and Freedoms and the Constitution, including the right to life, liberty and security of the person.
Closing supervised consumption sites violates that right by forcing people who use them to resort to unhealthy and unsafe drug 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 province is moving to an abstinence-based treatment model. Ten consumption sites will cease operations by April 1, when new rules take effect banning them within 200 metres of schools and daycares under the Community Care and Recovery Act.
“The purpose of the act isn’t to shut down supervised consumption sites or prohibit them, it’s just to regulate their location,” Zachary Green, a lawyer with the province, said Tuesday.
On Aug. 20, 2024, the health minister announced the province’s fundamental shift away from its approach to the deadly opioid crisis.
“There will be no further safe injection sites in the province of Ontario under our government,” Jones said at the time.
The legislation says municipalities and local boards cannot apply for a safe consumption site without approval from the provincial health minister.
Ontario Superior Court Justice John Callaghan asked the province’s lawyers to address the contradiction between the legislation and the health minister’s comments.
Government lawyer Andrea Bolieiro said the Supreme Court of Canada has held that speeches and declarations by political figures “should not be received as evidence.”
The judge seemed skeptical.
“I’d always thought when the minister speaks, it is advising parliament of the government’s view of why the enactment is coming into force,” Callaghan said.
Green said safe consumption sites might need to think about different ways to offer services.
“We say if that’s an inconvenience to them, they have to look at more adaptable ways to offer these services,” the lawyer said, pointing to a mobile consumption site in Sudbury that operates out of a trailer.
The province argues the new legislation is needed to protect the public, particularly children, from disorder that erupts near the consumption sites.
“Is there sufficient evidence in this case that could support the legislature concluding there is a reasonable apprehension of harm having supervised consumption sites located within 200 metres of schools or daycares?” Green said.
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The answer is yes, he argued.
He said the province’s case includes several people who live near some sites and have witnessed drug deals, outdoor drug consumption, violence and strewn needles. The province also has videos of similar issues as well as expert testimony, including that of a criminologist who said supervised consumption sites act as a magnet for drug dealers.
The applicants are seeking an injunction that would put off the April 1 site closures until the court can decide the case. Ultimately, they want the law struck down.
The province said the application should be dismissed.
The possibility of safe consumption site relocation was news to several site operators who were in court Tuesday and said they took Jones at her words, including in their follow-up dealings with the Ministry of Health.
Outside court, Angela Robertson, director of the Parkdale Queen West Community Health Centre, said the government lawyers’ comments were “confusing and confounding.”
Yet Green’s remarks gave her hope.
“I can now go home to my community health centre and look at if there is a way that we can plan to relocate outside of the 200-metre radius to continue to provide consumption support services,” she said.
“I think a trailer is a great idea in light of what we’re facing, because what we were facing is an extinction.”
The province’s abstinence-based approach will invest $529 million into a plan that also includes 540 highly supportive housing units.
Nine consumption sites will be converted to homelessness and addiction recovery treatment hubs — HART hubs, as the province calls them — to go along with 18 new hubs across Ontario.
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