TORONTO - Canada’s Charter guarantees a right to life, and the Ford government’s actions mean people will die.
That was the main point lawyers for harm reduction advocates attempted to drive home at the Ontario Court of Justice on Monday, arguing that Premier Doug Ford’s law closing supervised consumption sites amounts to a violation of the Charter’s right to life and security of the person.
Under the Community Care and Recovery Act, 10 sites — including five in Toronto — within 200 metres of schools and childcare centres must close no later than March 31, as the province transitions to a new abstinence-based model of care.
Advocates led by The Neighbourhood Group (TNG), which operates a supervised consumption site in Toronto’s Kensington Market, are seeking an injunction to stay open until their Charter challenge of the law is decided.
The closures will mean fewer people are able to access supervised consumption sites, their lawyers argued, which will result in more overdose deaths. 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 facilities 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 told the courtroom on Monday.
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 Queen’s Park has the right to impose zoning restrictions on health facilities.
Following the closures, Di Carlo said many clients will have to travel further to access care, including people in downtown Toronto.
In Thunder Bay, which is set to lose its only site, clients would have to travel eight hours to Winnipeg to receive supervised consumption services, he said.
“All the experts agree” that consuming drugs in a controlled, supervised environment lowers the risk of overdose, he added.
Injunction decision should come within a week
DJ Larkin, executive director of the Canadian Drug Policy Coalition, said getting the court to issue an injunction against the government will be 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 in an interview with TorontoToday.
The injunction decision should come shortly due to the looming March 31 closure deadline. The Charter challenge could take much longer — perhaps 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.
Crime and disorder claims
Ontario’s factum argues that public disorder is concentrated near supervised consumption sites.
Citing a criminology professor at Philadelphia’s Temple University, the filing states that “crime and disorder concentrate within a couple of city blocks (usually less than 200m) of criminogenic locations like [supervised consumption sites].”
It added that “people who use illicit drugs are linked to increased crime and disorder” and claimed the sites “[attract] drug dealing.”
Di Carlo dismissed these arguments, stating nothing in the government’s factum proves the sites cause an increase in crime. The sites were initially established in areas with high levels of homelessness and drug use, he noted.
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 Leslieville.
The expert appointed by the government to oversee and report on the site after the shooting recommended keeping the site open and creating more, albeit with increased security.
Equality arguments
The law also discriminates against people with disabilities — namely, substance use disorder, lawyer Spencer Bass argued on behalf of the applicants. He said the closure law violates section 15 of the Charter, the right to equality, as it exacerbates the disadvantages of this “deeply marginalized group.”
Ontario’s factum contends the law isn’t discriminatory because it “affects all [supervised consumption site] clients the same way, whether they have a disability or not.”
That’s irrelevant, Bass argued, since the only people who need the sites are ones who have a substance use disorder disability, which has been recognized by the courts.
Even if the law did violate the Charter, it would be justified under section 1, which establishes 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.
A high-profile hearing
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 South Riverdale site shuttered 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 empathized with 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.
Some at city hall, including Toronto’s medical officer of health, have spoken out against the closures. Toronto’s board of health was granted intervenor status in the case and provided evidence in favour of the sites.
The sites “are an important tool when it comes to addressing addictions,” said Toronto Centre Coun. Chris Moise, chair of the board of health, in January.
Toronto has 10 sites, and five will be forced to close because of the new law.
The province 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.
The city is set to get four new HART hubs. However, the application process for the new facilities has been marked by uncertainty as to whether they will open by the province’s April 1 date.