This article was first published by TorontoToday, a Village Media publication.
The future of 10 supervised consumption sites across Ontario — including five in Toronto — could be decided next week.
On March 25 and 26, lawyers representing one Toronto site will argue the provincial government’s bill to shutter facilities within 200 metres of schools and child care centres violates rights to life, liberty and security of the person under the Canadian Charter.
The suit was launched in December by The Neighbourhood Group, a privately funded supervised consumption site that has operated in Kensington Market since 2018, and two Ontarians who have used supervised consumption services.
A week before they launched, the provincial government passed the Community Care and Recovery Act, which forces the 10 sites near schools and child care centres to close on March 31.
The group also asked the court for an injunction to prevent the sites from closing.
“Without supervised consumption services, people who use drugs will be exposed to substantially increased risk of death, disease and a variety of other harms, and will be left to face those risks alone,” the group said in a Dec. 9 legal filing.
Next week, a judge will hear arguments on the injunction and the broader issues under the Charter of Rights and Freedoms.
The applicants are seeking an injunction “basically right away” to ensure the sites don’t close and to “give the judge more time to think about the constitutional issues,” said DJ Larkin, executive director of the Canadian Drug Policy Coalition, who was granted intervenor status in the case.
Toronto’s Board of Health is also an intervenor.
However, Larkin said getting one could prove difficult. “Injunctions are really hard to get against legislation,” they said.
Judges follow a three-part test when deciding whether to grant an injunction.
First, the applicant must prove they have a serious case that could succeed at trial. Second, they must prove that closing the sites represents an “irreparable harm.”
“Irreparable harm means something that you can't reverse, something that can't be compensated with money,” Larkin said. “Here, the type of harm that would be argued is that people could die if these services shut down.”
The third, and most difficult step to overcome, is proving the harm faced by the applicants outweighs the government’s interest in passing legislation.
“There's a presumption that governments are acting in good faith, that they're acting in the best interest when they pass a law,” Larkin said. “The starting presumption is that governments are acting in the best interests of people.”
Larkin said a 2023 case in British Columbia could serve as an important precedent. In 2023, the B.C. government rolled back a law that decriminalized small amounts of illegal drugs. The Harm Reduction Nurses Association was granted an injunction to block the law from coming into effect.
The B.C. government “hadn't brought evidence to prove that they needed this law right away, and so [the B.C. Supreme Court] decided, even if you're acting in the best interest in this case, we should put a temporary hold,” Larkin said.
Given the precedent and evidence in the Ontario case, Larkin said they’re hopeful.
No one has died at a safe consumption site in Canada despite the thousands of overdose deaths across the country, according to federal statistics.
That means there is "a good argument” to maintain the status quo, Larkin said.
“Do not force services to close until we can find a better path and decide if this law is constitutional,” they said. “It's a steep hill but the evidence really does demonstrate that there’s a good chance.”
The injunction will be decided shortly after the case wraps on March 26, because the sites are slated to close on March 31. The Charter challenge, however, “could take weeks or months,” Larkin said.
Depending on the outcome, the case could also be appealed all the way to the Supreme Court of Canada, which could take years.
If the Ford government loses, it could pass a new bill and invoke the notwithstanding clause to override any constitutional issues.
In January, Health Minister Sylvia Jones outlined a $500 million program to open 27 new addiction recovery centres instead, including four in Toronto.
"Parents are worried about the discarded needles that their children could pick up. Some parents no longer feel comfortable sending their children to the local elementary school or have pulled them out of their local daycare," Jones said in August when she first outlined the government’s plan.
Despite the possibility of an injunction, one Toronto site announced it will close ahead of the March 31 deadline.
According to posts on the South Riverdale Community Health Centre’s website, staffing pressures forced the site to cease operations on Friday.
