Ontario judge grants injunction to keep consumption sites open for now

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TORONTO — An Ontario judge has granted an injunction to keep 10 supervised consumption sites open while he considers a Charter challenge of a new provincial law that bans the sites from operating within 200 metres of schools or daycares.

Justice John Callaghan of the Superior Court of Justice said all sites slated to close by April 1 under the new law can remain open until 30 days after he decides the case.

“The constitutional issues in this application are complex,” Callaghan wrote.

“My decision will require some time. Thus, I have reserved my decision on the Charter and other constitutional issues and the judgment will be released in the coming months.”

But the provincial government quickly signalled after Friday’s ruling that it intends to move forward with an abstinence-based treatment model already set to begin on April 1.

A spokesperson for Health Minister Sylvia Jones suggested provincial funding for new homelessness and addiction recovery treatment hubs will be withheld if they continue to offer supervised consumption services.

Nine out of the 10 sites affected by the injunction were set to receive the funding, and without it they may not be able to operate at all. At least one has already closed as it prepares to convert to a new hub.

The decision to grant an injunction came as part of a legal process initiated by The Neighbourhood Group, which runs the Kensington Market Overdose Prevention Site in downtown Toronto — the only site out of those facing closure that is not slated for conversion.

It launched a lawsuit against the province in December along with two people who use the space.

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They argued in court earlier this week that 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.

The Kensington Market site will stay open, the organization’s CEO said. It is not provincially funded — it operates on donations, and will now welcome more in order to keep going.

“We actually didn’t have a closing plan because we were hopeful and optimistic that we would stay open on April 1st, and now we will,” said Bill Sinclair.

“We’re so glad to be providing life-saving services beyond next week.”

Health officials and harm reduction advocates have said that drug users’ lives are routinely saved at the sites, and warned people will die as a result of the closures should they proceed.

The province has argued the new law does not violate the Charter or the Constitution and that the legislation is necessary to protect the public, particularly children, from disorder and violence near the consumption sites.

The judge said he granted an exemption to all supervised consumption sites so they can continue operating as usual. He said the harm to users of the sites that could result from closures outweighed the harm to the public on a time-limited basis while he considers his decision.

“Exempting the existing (supervised consumption sites) will have a substantial public benefit of preventing serious health risks and deaths which, in my view, outweighs the harm caused by the continued public disorder,” Callaghan wrote in his decision about granting the injunction.

The Neighbourhood Group is celebrating the decision that grants temporary relief to its clients.

“Today’s decision means people will be allowed to stay alive at least a little bit longer,” said Carlo Di Carlo, the lawyer who represented the site and its two users in court for two days of arguments earlier this week.

Last summer, Jones announced a fundamental shift in the province’s approach to the deadly and decade-long opioid crisis. The new rules, which prevented the operation of sites within a certain distance of schools and daycares, would mean 10 sites out of 23 across the province would have to close.

As part of the new approach, the province is investing $529 million, including towards creating 540 highly supportive housing units.

It is funding 18 new homelessness and addiction recovery treatment hubs, or HART hubs as the province calls them, in addition to the nine supervised consumption sites that agreed to become HART hubs rather than face imminent closure.

Jones’s office said that despite the injunction, its plan for those nine hubs will go ahead next week.

“Our priority is to protect children and families from violent crime and dangerous public drug use occurring at drug injection sites located near schools and daycares,” said Hannah Jensen, a spokeswoman for Jones.

“The transition of the nine drug injection sites to homelessness, addiction and recovery treatment hubs will proceed as planned on April 1st. Provincial funding for HART Hubs cannot be used for drug injection services and will be contingent on the organization not seeking to continue those services.”

If sites do not get provincial funding, “that will summarily keep them closed,” said Angela Robertson, executive director of the Parkdale Queen West Community Health Centre, which operates one of the nine sites.

“I feel elated and despondent all at the same time,” she said of the injunction, adding the decision affirms that serious health risks and deaths would result from closures.

She said there’s an opportunity for the province to rethink things.

“In the middle of (an) unregulated toxic drug and overdose crisis, we cannot take a zero-sum approach. We need (supervised consumption sites), and all the supports enabled by the HART hubs.”

During the legal arguments that Callaghan heard on Tuesday, lawyers for the province had argued the law only regulated a supervised consumption site’s location and that they could simply move.

However, Jones immediately rebuffed the province’s lawyers by saying the province would not allow new ones to launch, nor will they allow existing ones to move.

The legislation says municipalities and local boards cannot apply for a supervised consumption site without approval from the provincial health minister.