Ontario judge temporarily blocks shutdown of 10 drug-use sites

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An Ontario Superior Court judge has temporarily blocked provincial legislation that would have forced the closing of 10 of the province’s 23 supervised drug-use sites next week, siding with a Toronto community group and two drug users who challenged the law on constitutional grounds.

In a decision released Friday afternoon, Justice John Callaghan granted an injunction to allow the drug sites, five of which are in Toronto, to stay open while he considers a Charter challenge of a legislation passed by the Ontario government that bans such facilities within 200 metres of daycares or schools.

The law would have forced the affected sites, including facilities in Kitchener, Hamilton, Guelph, Thunder Bay and Ottawa, to close as of April 1. But the ruling suspends the 200-metre buffer-zone section of the province’s law, and lasts until 30 days after Justice Callaghan issues a final decision in the case, which could take months.

However, the Ontario government has pledged to replace some of the drug-use sites with a new model of facility that focuses on abstinence and getting drug users into treatment. The province insisted on Friday that these plans would go ahead despite the ruling.

“Our priority is to protect children and families from violent crime and dangerous public drug use occurring at drug injection sites located near schools and daycares,” Hannah Jensen, a spokeswoman for Ontario Health Minister Sylvia Jones, said in an e-mailed statement.

“The transition of the nine drug injection sites to Homelessness, Addiction and Recovery Treatment (HART) Hubs will proceed as planned on April 1. Provincial funding for HART Hubs cannot be used for drug injection services and will be contingent on the organization not seeking to continue those services.”

The government’s decision to close some sites went against expert opinions the province sought. Ontario’s Auditor-General found the move was made without proper planning or public consultation.

In a hearing this week, lawyers for two drug users and the Neighbourhood Group Community Services, which operates one of the sites in Toronto’s Kensington Market, argued that the shutdowns would violate the Charter of Rights and Freedoms.

They said the Charter’s guarantee to right to life, liberty and security of the person would be violated, as the closings would force drug users to do drugs in unsafe places – while facing the threat of overdoses and criminal prosecution – and result in more deaths. They also argued the law violates the Charter’s guarantee against discrimination and was an unconstitutional attempt to extend Ontario’s jurisdiction into the federal purview over criminal law.

Lawyers for the Ontario government argued that the province was within its rights to pass laws about where health care facilities are located, in order to protect children and neighbourhoods from crime and disorder. They also argued the evidence that these drug sites were effective was “contested and inconclusive.” And they told court that the law itself does not prohibit clinics from relocating, even though Ontario’s Health Minister has also declared that no new sites will be allowed to open.

Under established law, in order to issue an injunction, Justice Callaghan had to weigh whether there is a serious issue to be tried, whether “irreparable harm” would result without an injunction and whether a “balance of convenience” favoured issuing the order.

In his ruling, Justice Callaghan said that the applicants and drug users would suffer “irreparable harm” if the sites were to close.

“It is foreseeable that many more will overdose, and some of those will die. In addition, it is foreseeable that there will be an increase in the spread of bloodborne diseases,” he wrote in his decision. “Death and disease that would have been prevented will now not be prevented, because those who would have used an SCS [supervised consumption site] will now consume drugs in less safe settings.”

Carlo Di Carlo, a lawyer with Stockwoods LLP who is part of a group representing the applicants pro bono, welcomed the injunction.

“Today’s decision means people will be allowed to stay alive at least a little bit longer,” he said in a statement to The Globe and Mail.

Bill Sinclair, president and chief executive officer of the Neighbourhood Group Community Services, said his site didn’t announce a closing date because he was hopeful an injunction would be granted. His facility is not set to become one of the government’s new HART hubs.

“We’re thrilled to be able to stay open and continue to serve people,” he told The Globe on Friday.

Sandra Ka Hon Chu, co-executive director of the HIV Legal Network, an intervenor in the case, said many sites had been preparing to wind down before the injunction was granted. “We’re very pleased that the judge recognized the enormity of harm that would occur to people who access these sites if they were to close in the next few days,” she said.