Ontario's drug-site law violates Charter and Constitution, group says in legal challenge

Recently passed Ontario legislation that will shutter several supervised consumption sites and effectively prevent new ones from opening in the province violates both the Charter of Rights and Freedoms and the Constitution, a community organization argues in a legal challenge filed this week.

The Neighbourhood Group Community Services agency, which operates a privately funded supervised consumption site in Toronto's Kensington Market area, launched the challenge alongside two people who use or have used such sites.

They argue the law infringes on several Charter-protected rights, including the right to life, liberty and security of the person.

Closing supervised consumption sites violates that right by forcing people who use them to resort to unhealthy and unsafe consumption, which carries a higher risk of death from overdose and increases the risk of criminal prosecution, they argue.

The challenge also argues the legislation goes against the division of powers between Ottawa and provinces, in that only the federal government can make criminal law and try to suppress what it considers a "socially undesirable practice."

"The research and the experts prove that supervised consumption sites make a positive difference, both for the individuals we meet and for their whole neighbourhood," Bill Sinclair, the organization's president and CEO, said in a news conference Tuesday.

"With this court case, we're demanding our right to continue to provide this care and save lives."

Solicitor General Michael Kerzner said he could not comment on the legal action, but added the province has made it clear it wants parks to be safe for children and families.

The Kensington Market Overdose Prevention Site run by the Neighbourhood Group Community Services agency is one of 10 supervised consumption sites set to close by March 31, 2025 under legislation fast-tracked by Premier Doug Ford's Progressive Conservative government and passed last week.

The legislation prohibits any supervised consumption sites within 200 metres of a school or daycare. The Kensington site is next to a child-care centre operated by the same community agency.

The law also requires municipalities to get the health minister's approval to apply for an exemption from the federal government to launch new supervised consumption sites, something Health Minister Sylvia Jones has said she would not approve in any situation.

The government favours an abstinence-based model for treatment, and plans to put in place 19 new "homelessness and addiction recovery treatment hubs," plus 375 highly supportive housing units at a planned cost of $378 million.

Katie Resendes, who has been coming to the Kensington site for a few years, said simply offering more treatment sites isn't the answer.

"If you're not ready (for treatment), you're not ready, and what these safe consumption sites allow is, for those of us that are not ready, to be safe and reduce harm as much as possible," said Resendes, who is one of the applicants in the court challenge.

Resendes, a self-described high-functioning substance user for more than 15 years, said supervised consumption sites have helped her maintain a job and stay safe in that time.

She said she takes the subway to the Kensington location because there is no site near her home, and she's not sure what will happen if it closes.

"I don't know what I'll do to access harm-reduction supplies. I don't know what I'll do to access naloxone. I don't know what will happen and that's pretty scary."

The legal challenge further argues the Ontario government knowingly passed a law that will expose people who use drugs to an increased risk of death and other harms, which violates the Charter right to protection from cruel and unusual punishment

The law also discriminates on the basis of substance abuse disorder, which breaches the right to equality, it argues.

"It also reinforces the unjustified and unsubstantiated stereotype that people who use drugs and who suffer from substance use disabilities are a danger to society, and in particular to children, and are therefore not worthy of the care they need to survive," the court filing reads.

Rahool Agarwal, one of the lawyers representing the applicants in the challenge, said they'll rely on the Supreme Court of Canada decision in a case regarding the country's first supervised injection site as "a strong precedent."

Canada's top court ruled in 2011 that the federal health minister's decision not to exempt the Insite facility in Vancouver from the application of criminal drug laws breached the Charter right to life, liberty and security of the person -- one of the rights invoked in the Ontario challenge.

Lawyers for the applicants said they are hoping to have the case heard in Superior Court before the end of March, the deadline to close the sites. They're also seeking an injunction to prevent the restrictions in the law from taking effect until the case is decided.

Last week, Ontario's auditor general said the province's opioid strategy is outdated and a new, comprehensive approach is needed to deal with the ongoing crisis.

In her latest report, Shelley Spence also found that more than 1,600 overdoses were reversed in 2022-23 at the sites slated to close, and no one died of an overdose at those locations in the same time frame.