Ontario’s New Drug Policy: Impacts on Safe Consumption Sites and Public Health
Ontario’s new drug addiction policy
Ontario’s new drug policy will close many supervised consumption sites in Ontario.
The Community Care and Recovery Act, 2024 prohibits safe consumption sites from operating within 200 metres of schools and daycare centres. It prohibits municipalities from applying for a federal exemption for a new site or seeking funding for prescription-based supply of safe drugs or supporting someone else’s application. Individuals experiencing addiction, mental health issues and lack of shelter will need to visit Homelessness and Addiction Recovery Treatment (HART) Hubs to request treatment focused services that will not provide supervised drug consumption, safe supply or needle exchange services. Hansard reports the Ontario Minister of Health said the province must move away from “an approach that accepts and promotes the use of illegal drugs over treatment and recovery” because the government “has heard” that the sites do not work, have a negative impact on communities, and users are never referred to treatment (1600-10). An Opposition member quoted the registered nurses association arguing the new legislation will lead to increased deaths, unsafe communities, and rising health care costs and that peer-reviewed literature supports the life-saving effects the sites (1630). Ontario has announced the transition of nine of the sites that will have to close to Hubs.
Community groups have already resorted to the courts.
In 2011, the SCC decided the federal Health Minister’s refusal to grant an exemption to Insite from the Controlled Drugs and Substances Act breached s. 7 of the Charter. The Court accepted the findings of the trial judge that fear of possession charges reduced users’ access to health professionals’ supervision at the safe consumption site and that supervision ameliorated the risk of morbidity and mortality associated with addiction and injection. This engaged users’ rights to life and security of the person. The threat of possession charges engaged users’ and healthcare providers’ liberty. The refusal of an exemption created barriers to access to life-saving healthcare engaging s. 7. The Court then held the barriers were not consistent with the principles of fundamental justice. The trial judge’s findings that criminal prohibition did little to reduce drug use; supervised injection reduced risk of death and disease to users; Insite’s presence did not increase crime nor greater public drug use nor relapse; staff encouraged clients to seek counselling, detox, and treatment; and staff interventions had prevented any overdose deaths at Insite. The Court held the refusal of an exemption was arbitrary because it was inconsistent with the legitimate aims of the criminal prohibition which were to protect health and public safety and grossly disproportionate because “Insite saves lives.”
Parliament then amended the Controlled Drug and Substance Act to add a provision specifically aimed at applications for new safe consumption sites.
There seems to be an ideological divide between conservative and liberal approaches to safe consumption site that turns on the issue in Insite: should a government approve supervised injection sites that ensure many users stay alive before they are able to decide whether to proceed to rehab? The SCC in Insite looked at the testimony of the federal Health Minister before the 2008 House of Commons Committee on Health in considering whether he had refused the exemption. The Court summarized: the Minister thought scientific evidence about supervised injection services was mixed and therefore the site represented a failure of public policy. Hansard reports the Minister drew a clear distinction between the “drug maintenance” offered at safe consumption sites and drug treatment that offers full recovery (1235). This is the same distinction the Ontario government makes in its new policy. Doug Ford said he was “dead against” supervised injection sites in his 2018 election campaign, drawing the line between a place to do more drugs and rehabilitation. Recently the federal Conservative leader’s calling safe consumption sites “drug dens” shows the same bias. This ideological divide creates barriers to a discussion of evidence that would be relevant to a Charter claim.
The Insite case turned on the evidence. A change in the balance of evidence both in respect of Insite or any other new safe consumption site might justify a refusal of an exemption.
But even a cursory review reveals recent expert articles in journals such as Lancet still support the harm reduction effect of safe consumption sites. Policy experts of this view have found that the stringent methodology needed for this issue was lacking in one provincial study to the contrary. After his election, Ford started to defund sites, citing complaints from local residents, opposed by Toronto politicians and its chief medical officer, who assert they provide life-saving healthcare.
No one wants to see children or other members of the public exposed to trauma. But BC legislation meant to achieve this goal in the context of the consumption of decriminalized drugs was based on a 15-metre distance from daycare centres.
Ontario claims an increase in the crime rate around the sites based on some general crime statistics around sites. Journalists have probed the numbers but have often found the opposite or have been unsuccessful in sourcing Ontario’s figures.
The police support drug policy that attacks the problem in a number of ways. The President of the BC Association of Chiefs of Police and the Commanding Officer of the BC RCMP testified before the federal House of Commons Standing Committee on Health in 2024 that supervised consumption sites are “incredibly important” and must be “readily available” as part of a many-sided approach to drug policy (1725-30). There must be a balance between the concern with the risk of overdosing alone, with the safety of all community members (1720). The inspector overseeing the Vancouver drug unit said in 2024 that there has been a decrease in complaints of public drug consumption after decriminalization though noting people rightfully have concerns about some circumstances.
As for minor nuisance caused by the consumption of drugs, the protection of human rights must be carried out with accommodation of the vulnerable.
The SCC showed how important accurate evidence is in supporting an innovative approach to drug policy to meet the healthcare needs of a vulnerable group whose trauma compelled a life-saving service in Insite. The barriers created by the government to allow access to this service were then proved to breach the s. 7 rights of members of that vulnerable group and their healthcare providers. The SCC precedent and the continuing need for safe consumption sites is likely to boost the importance of the accuracy of the evidence needed to prove compliance with the principles of fundamental justice or the adequacy of the Hubs as a reasonable limit to the rights at stake.
About the author
James Hendry
James Hendry was called to the Ontario Bar in 1981. He was in private practice until 1984 when he joined the Canadian Human Rights Commission as counsel providing legal advice and litigation services, appearing at all levels of court, including the Supreme Court of Canada. In 1989, he was recruited by the Department of Justice. He was General Counsel in the Human Rights Law Section until 2011, specializing in civil Charter social policy advice and equality rights, and interpreting and designing human rights legislation. He was Research Director with the Canadian Human Rights Act Review Panel and a Visiting Scholar at Harvard Law School on a Canada-U.S. Fulbright Scholarship. He publishes extensively on Canadian and comparative constitutional issues and has lectured in Canada, Spain, South Africa, the United States, and Hong Kong. He taught Constitutional Law and Charter at the University of Ottawa, Faculty of Law and currently co-teaches a course on “Writing for Social Justice.” He designed and presented lecture series on the Charter, International Human Rights and Aboriginal Rights at Carleton University. He was the Editor in Chief of the Federated Press Charter and Human Rights Litigation journal from 1993 to 2016. He was founding Editor in Chief of the PKI Global Justice Journal, now published by Queen’s Law (2017 to 2022).