The Charter guarantees a right to life, and the Ford government’s actions mean people will die, advocates argued in court Monday.
That was the main point from a lawyer who argued at the Ontario Court of Justice on Monday that Ontario’s closure of supervised consumption sites amounted to a violation of the Charter right to life and security of the person.
Under the Community Care and Recovery Act, 10 sites that are within 200 metres of schools and child care must close no later than March 31, as the province transitions to an abstinence-based “HART hub” model. Advocates, led by The Neighbourhood Group, which operates a supervised consumption site in Toronto’s Kensington Market, are seeking an injunction to keep it open until their Charter challenge of the law is decided.
They argued the closures would mean fewer people would be able to access supervised consumption sites, meaning more people would die. They regularly quoted findings from a report by Dr. Ahmed Bayoumi, a University of Toronto epidemiologist specializing in drug use.
Between March 2020 and March 2024, the sites reversed 21,979 overdoses in Ontario — more than a third of those were at sites that are slated to close under the Ford government’s law. It’s “common sense” that some of those people who overdosed would have died or suffered severe brain damage without the sites’ interventions, lawyer Carlo Di Carlo said.
The government argued in its factum that the Charter “does not guarantee that individuals will not have to travel to access a health facility” — and that it has the right to impose zoning restrictions on health facilities.
Supervised consumption sites can easily go elsewhere — even in Toronto, which “will continue to have among the highest numbers of SCSs per capita in the world” even if some must close, Ontario argued.
But the ban would cover “the entire downtown core” of Toronto, where the need is greatest, Di Carlo said.
“The notion that (supervised consumption sites) can simply move down the street is not real,” he said.
Di Carlo said 38 per cent of clients would lose access to services within 500 metres, and another 20–22 per cent would no longer have a site within two kilometres. In Thunder Bay, which is set to lose its only site, clients would have to travel eight hours to Manitoba, he said.
“All the experts agree” that consuming drugs in a controlled, supervised environment lowers the risk of overdose, he added.
Ontario said public disorder is concentrated near supervised consumption sites.
“Crime and disorder concentrate within a couple of city blocks (usually less than 200m) of criminogenic locations like [supervised consumption sites],” the province said in its factum, citing a criminology professor at Philadelphia’s Temple University.
It added that “people who use illicit drugs are linked to increased crime and disorder” and claimed the sites “[attract] drug dealing.”
No expert called by either side has said the sites have been proven to cause an increase in crime in Ontario, Di Carlo said.
Ontario admitted it couldn’t prove that the sites cause increased criminal activity, Di Carlo said. Applicant experts say the site locations were chosen because they’ve always been places with the most homelessness and drug use, he said.
The law also discriminates against people with disabilities — namely, substance use disorder, lawyer Spencer Bass argued on behalf of the applicants. He argued the closures violate section 15 of the Charter, the right to equality, as it exacerbates the disadvantages of this “deeply marginalized group.”
Ontario argued the law isn’t discriminatory because it “affects all [supervised consumption site] clients the same way, whether they have a disability or not,” it wrote in its factum.
That’s irrelevant, Bass argued, since the only people who need the sites are ones who have a disability, i.e. substance use disorder.
Even if the law did violate the Charter, it would be justified under section 1, which notes that the Charter is subject to "reasonable limits,” Ontario argued.
“The Legislature’s objective of reducing this harm is pressing and substantial, and the [200-metre] buffer zone is rationally connected, minimally impairing, and proportionate,” it said in its factum.
Bill Sinclair, CEO of The Neighbourhood Group, said he hopes for and expects a decision on the injunction “swiftly,” and on the Charter challenge itself in April.
“Lives are depending upon having these answers,” he said.
The challenge could potentially take years, if it’s appealed all the way to the Supreme Court of Canada.
If the Ford government loses, it could pass a new bill and invoke the notwithstanding clause to override any constitutional issues.
DJ Larkin, executive director of the Canadian Drug Policy Coalition, said getting an injunction against the government will prove difficult.
“The starting presumption is that governments are acting in the best interests of people,” Larkin, who intervened in the case on TNG’s side, said.
Sinclair said sites like his are the answer to what the government wants, including fewer needles in parks and less social disorder.
“The whole point of supervised consumption sites is that people can come inside to a place where there's health care, where everything is clean, sterile equipment, everything that people need,” he said. “The opposite of supervised safe sites is unsafe, unsupervised, out-in-public sites where they might have to use in secret, have to use in a laneway, use in a park, use in your neighbourhoods.”
Toronto harm reduction advocate Zoe Dodd said HART hubs haven't been piloted, whereas supervised consumption sites have been proven to save lives — and help people with health care, legal issues or employment services.
"So we're actually closing a service that helps people in this enormous way that we can't even measure, to replace it with something that is not going to be replaced on April 1 and has nothing to do with supervised consumption or addressing the toxic drug death crisis," she said.
Sinclair noted the irony that his supervised consumption site will have to close because it’s 10 metres away from a child-care centre — which his group also runs.
“It's highly rated and a really great spot. We've been providing this other service for eight years, and there's no problem. We can provide safe child care and safe health care. We've proven it,” he said.
The province has provided over $500 million to help open 27 new facilities, dubbed homelessness and addiction recovery treatment (HART) hubs. The new sites are billed as utilizing a model of care that prioritizes treatment and housing, rather than supervised consumption. Some former supervised consumption sites have applied to become HART hubs.
Public interest in the case was high. Dozens of observers and harm reduction advocates chatted, hugged and milled nervously outside the courtroom an hour before proceedings were set to start. The small courtroom was limited to counsel only, meaning observers, including press, were assigned to an overflow room where the case was streamed. That room also quickly filled and a second overflow room was added. Technical glitches left stream observers without audio for about 30 minutes of the applicants’ opening remarks.
The Ford government began reviewing supervised consumption sites after a 44-year-old woman, Karolina Huebner-Makurat, was killed by a stray bullet outside the South Riverdale Community Health Centre in Toronto. The expert appointed by the government to oversee and report on the site after the shooting recommended opening more supervised consumption sites.
The South Riverdale site closed last week, ahead of the province’s deadline, due to staff shortages.
The 10 sites set to close prevented nearly 1,600 fatal opioid overdoses in one year, Ontario’s auditor general found in December. The government made no attempt to determine if anyone will die or not as a result of the site closures, she also found.
No one has died at a safe consumption site in Canada despite the thousands of overdose deaths across the country, according to federal statistics.
Premier Doug Ford has said it’s his “personal opinion” that the sites don’t work and has noted the objections of people who live near the sites.
Health Minister Sylvia Jones has said that "people are not going to die" due to the closure of the facilities.
Ontario’s opposition parties have had mixed reactions to the closures. The Liberals supported the bill that sealed the sites’ fate. NDP Leader Marit Stiles advocated for publicly funding supervised consumption last year but demurred when asked about it in the recent provincial election campaign. The Greens have supported the sites.
