Ontario judge seeking clarity on facts in supervised consumption site legal challenge

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The Ontario judge overseeing the legal challenge of the province’s ban on supervised consumption sites that are within 200 metres of schools and daycares unexpectedly recalled court Monday in a bid to understand whether he had all the facts to decide the case.

Justice John Callaghan heard arguments in late March from The Neighbourhood Group, which runs a consumption site in downtown Toronto. The organization, along with two of its users, argued the new law violates the Constitution and the Charter of Rights and Freedoms because the sites save lives.

The province says the legislation violates neither and its lawyers argued the case is merely about regulating the sites’ locations.

The case drew numerous interveners, including neighbours who supported the government’s new law and some who disagreed with the province’s approach. Among the interveners was another supervised consumption site in Toronto, harm reduction workers and the City of Toronto’s board of health.

But at issue for the judge are comments from Health Minister Sylvia Jones, whose office told The Canadian Press while the case was in court that the province would not allow new sites to open or allow current ones to move to comply with the new law.

Callaghan granted an injunction to allow 10 sites slated for closure because of the new rules to remain open while he considers his decision.

But nine of 10 sites slated for closure shut down anyway because they had agreed to transition to government-approved homelessness and addiction recovery hubs for about four times the amount of funding.

That caught Callaghan by surprise.

“I am a little concerned the record does not reflect some of the facts, such as nine of 10 sites didn’t close because of legislation, but because of funding,” Callaghan said.

He asked the lawyers if he needed more facts to properly decide the case.

Zachary Green, a lawyer for the province, said the judge had all the facts because the case doesn’t focus on all the consumption sites or the minister of health, but rather on one site: The Kensington Market Overdose Prevention Site run by The Neighbourhood Group.

The judge asked that group if they wanted to update the submitted evidence, particularly to answer the question as to why the consumption sites closed despite his injunction.

Carlo Di Carlo, the lawyer representing The Neighbourhood Group, said he would need time to consult with his client. But the group said it would try to get some new evidence into court, namely an article by The Canadian Press that quotes Jones’s office.

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The news organization had contacted the health minister’s office about the provincial lawyers’ argument that consumption sites were free to relocate so long as they abided by the new buffer zone law near schools and daycares.

“Our government has been clear, we will not approve any new or relocating drug injection sites,” Hannah Jensen, a spokeswoman for Jones, told The Canadian Press at the time.

The judge asked the lawyers several times on Monday why he did not have more facts to consider in the case, especially why nine of 10 sites closed despite his injunction allowing them to remain open.

“The minister of health knows exactly what happened,” Callaghan said.

The judge and lawyers agreed to discuss whether they need a case conference or if he has enough information in the court file to decide the case.

“I think I’m entitled to a set of facts that’s accurate,” the judge said.

More than 2,600 Ontarians died of opioid overdoses in 2023, the last full year of data available from Ontario’s chief coroner.

Court heard last month that more than 21,000 overdoses have been reversed at supervised consumption sites across the province since they became legal in 2019.

The province is investing $550 million to fund a total of 28 HART hubs across Ontario, along with 540 new, highly supportive housing units.