A nurse cleans a booth following use by a person at a supervised drug-use site on Jan. 22, 2021 in Ottawa.Adrian Wyld/The Canadian Press
Legal experts and harm-reduction advocates are raising questions about the constitutionality of Ontario’s plan to shutter almost half of the supervised drug-use sites in the province, saying the government’s decision to prohibit new locations breaches Charter rights.
The Ontario government tabled a bill earlier this week that would ban the sites, which in Ontario are called consumption and treatment services, within 200 metres of schools and child-care centres, citing community safety issues and concerns from parents. The change means that 10 of the province’s 23 sites will have to close by the end of March and are not allowed to relocate.
The legislation also prevents municipalities from applying directly to Ottawa for a drug-decriminalization exemption, which is needed to open any new locations. It also prevents them from obtaining funding for the sites and from participating in what the federal government calls its “safer supply” program that sees medical professionals prescribe controlled substances. The bill would first require provincial approval for exemptions, and Health Minister Sylvia Jones said she would not grant such requests under any circumstances.
The debate over how to best treat addictions – coupled with an increasing toxic drug supply – has gripped political leaders in recent months. Ontario’s bill was crafted in response to a deadly shooting that happened outside of a supervised drug-use site in July, 2023, killing a 44-year-old mother of two.
Last year, British Columbia scaled back its drug-decriminalization policy after pushback from municipalities that expressed concern over public drug use.
But there are also legal precedents to keeping sites open. Experts in the field say Ontario’s position may be legally problematic, pointing to the landmark 2011 Supreme Court ruling that ordered the federal government to stop interfering with Vancouver’s controversial Insite clinic. The decision determined that drug addicts are considerably safer administering their own injections under medical surveillance than obtaining and injecting hard drugs on the streets of the city’s troubled Downtown Eastside.
The Insite case referenced Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the life, liberty and personal security of all people, and said denying the exemption for Insite cannot be justified.
It also found that while there is ministerial discretion in denying the exemption, the minister must consider if it would “cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice.”
“Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption,” the ruling said.
Margot Young, a professor in the Allard School of Law at the University of British Columbia who has written about the Insite case, said there is a “strong argument to be made” that the Ontario legislation breaches Charter rights.
“I think there are real constitutional issues here, first about taking away a health care service that is linked to the Section 7 rights to life, liberty and security of the person of the people who use the site to inject drugs and also any staff who might be there doing the supervision,” Prof. Young said in an interview.
“This is one form of harm reduction that is proven to save lives and actually improve the community,” she said, adding that there will be more discarded drug paraphernalia in surrounding communities once sites are closed.
Anaïs Bussières McNicoll, director of the fundamental freedoms program at the Canadian Civil Liberties Association, called the new bill “a step in the wrong direction.”
“It’s certainly a direct attack on Section 7 of the Charter,” she said in an interview.
“The Supreme Court of Canada has recognized that addiction is a disease and that preventing people with addiction from accessing health services offered through safe injection sites threatens their health.”
Ms. Bussières McNicoll added that the province’s pledge to reject applications to the federal government for an exemption is “deeply problematic.”
DJ Larkin, executive director of the Canadian Drug Policy Coalition, said there are three major concerns about legality in the bill: a prohibition on a health service, jurisdictional issues and vague language around whether the ban extends solely to the sites or other services, such as drug testing.
“The Charter is very clear: You can’t limit someone’s ability to save their own health or to have their life saved. This legislation does that,” Mx. Larkin said.
“It’s discriminatory. It’s trying to control municipalities and the federal government in ways that are quite possibly outside the province’s authority and it’s quite vague. It’s open to poor interpretation. And a vague law is often an unconstitutional law.”
Mx. Larkin said there is “no doubt” that the legislation directly parallels the Insite case.
“I would anticipate it would be found unconstitutional in very much the same way.”
Hannah Jensen, a spokesperson for the Ontario Health Minister, did not specifically address questions about the bill’s constitutionality. She said the government has heard from families about harassment and assault near the supervised drug-use sites and that children have picked up dirty needles or bags of toxic drugs.
“Enough is enough and our government is taking action to protect children and their families while taking the next step to create a system of care that prioritizes community safety, treatment and recovery,” she said in her statement.
The federal government has said it is reviewing the legislation.
In Toronto, a spokesperson for Olivia Chow, said the mayor is “concerned that the province’s closure of existing harm-reduction services will have significant public-health consequences,” such as increased overdose deaths and public drug use, as well as increased pressure on the health care system.
Arianne Robinson said Ms. Chow does welcome nearly $400-million in new provincial funding announced for treatment and supportive housing,