DECEMBER 10, 2024 – Toronto, ON – Today, The Neighbourhood Group Community Services (TNGCS), located in Toronto’s Kensington Market, has taken legal action against the Community Care and Recovery Act, which was recently passed in the Ontario Legislature as part of Bill 223. The Act will force the closure of at least 10 supervised consumption sites (SCS, also known as consumption and treatment services) across Ontario, and result in increased toxic drug deaths and devastating health outcomes for people who use substances.
This deadly bill was hastily passed on December 4th with no debate, nor input from those with lived experience and other experts, including those who provide this life-saving healthcare. The Kensington Market Overdose Prevention Site (KMOPS), operated by TNGCS, will be forced to close by the end of March 2025 because the Act prohibits SCS from operating within 200 metres of schools and childcare centres. At a time when overdose deaths are at record levels, the closure will prevent service providers from providing healthcare where it is most needed.
Yet the evidence in support of SCS is clear:
• Preliminary data from Toronto Public Health shows the extent of the crisis: in 2023, 523 people died from opioid toxicity in Toronto, a staggering 74% increase from 2019.
• A recent policy paper from the Association of Municipalities of Ontario showed that overdose deaths declined by 42% since the introduction of SCS.
• There have been zero overdose deaths at KMOPS since its inception in 2018, despite the fact that it has been in continuous operation.
“The closure of the sites will undoubtedly result in a significant loss of life,” says Katie Resendes, one of the applicants in the lawsuit. “Those of us that use the sites do not have a death wish as some may think. Please be aware of the devastation that will occur when those who rely on the sites are unable to access them.”
TNGCS and Ms. Resendes along with another applicant, Kitchener-based Jean-Pierre Aubry Forgues, are bringing an application seeking an order from the Ontario Superior Court of Justice that the Act violates the Canadian Charter of Rights and Freedoms, or, in the alternative, that it is otherwise unconstitutional because it encroaches on Canada’s exclusive jurisdiction over criminal law. Specifically, the application seeks an order that the Act violates sections 7, 12, and 15 of the Charter for the following reasons:
• Section 7 of the Charter provides that every Canadian has the right to life, liberty, and security of the person and that they cannot be denied those rights unless it happens in a manner that is consistent with fundamental justice. By closing SCS, the Act will infringe on the life, liberty, and security of the person of the people who depend on these services. People who no longer have access to these services face a dramatically increased risk of death by overdose; they will be forced to resort to unhealthy and unsafe consumption — this engages their life interest. Second, individuals who will be forced to consume outside of these sites will be exposed to a higher risk of criminal sanction — thereby engaging their liberty interest. This is because SCS are protected by a federal exemption from the application of criminal laws related to the possession of drugs. Finally, the Act infringes SCS service users’ security of person interest. Without supervised consumption, the data is clear that they will be exposed to a higher risk of infectious disease and other harms to their health, including their mental health.
• Section 12 of the Charter protects Canadians from cruel and unusual punishment. People who use drugs have come to rely on these services for their daily survival. Without these services, people who use drugs will be exposed to substantially increased risk of death, disease and a variety of other harms. Ontario knew this when it passed the Act but proceeded to pass it anyway. By doing so, Ontario knowingly increased the likelihood of death and grievous bodily harm.
• Section 15 of the Charter guarantees the right to be free from discrimination. It is clear that the Act discriminates against people who use SCS. People who use SCS are accessing services critical to their survival and health. Under the Act, the only reason they will be denied these services is because of an immutable characteristic that they have: they have a substance use disability. Denying them real and meaningful access to these services will exacerbate real disadvantages that individuals from this group already suffer from. Most service users are marginalized and disadvantaged. These disadvantages are even more pronounced for service users who also identify as women or who are Indigenous or are otherwise racialized. Denying these individuals access to these services will only make it harder for them to get the health services they desperately need for no reason other than the fact that they suffer from a disability that the Government of Ontario has targeted.
Even if the Act does not violate the Charter, it still violates the Constitution. Only the Government of Canada can make criminal law; only the federal government can try to supress conduct that it deems to be socially undesirable. But that is exactly what Ontario is attempting to do with this Act. Ontario cannot try to usurp Canada’s powers in this way. At the very least, the Act frustrates the purpose of the exemption regime that the federal government established to allow for SCS.
The Applicants are represented by three law firms:
• Rahool Agarwal from Lax O’Sullivan Lisus Gottlieb LLP;
• Carlo Di Carlo and Olivia Eng from Stockwoods LLP; and
• Avnish Nanda from Nanda & Company.
There is near-unanimous consensus about these impending closures’ negative effects, which the Government of Ontario knows and is choosing to ignore, including through leaked advice from their own counsel. Numerous studies, including internal government reports and independent evaluations, consistently demonstrate the public health and safety benefits of SCS. SCS in Ontario have recorded 1.12 million visits from 178,000 unique clients since March 2020, according to a recent report, and have successfully reversed 22,000 overdoses and facilitated more than 530,000 service referrals to housing, case management, substance use treatment, and more.
“First and foremost, we are service providers committed to the health and well-being of members of our community,” says Bill Sinclair, CEO of The Neighbourhood Group Community Services, which houses KMOPS. “We are doing what we need to do to save lives and deliver the best care possible to those who depend on us. Our care for and responsibility to them has led us to take this legal action.”
Data from Toronto demonstrates that neighbourhoods with SCS experienced 67 percent reductions in overdose mortality, while other neighbourhoods showed no significant decreases. SCS also reduce public drug use and discarded drug use equipment and a recent study found decreases in rates of homicide, assault, and robbery in the vicinity of an SCS after opening — directly contradicting the Ontario government’s claim that crime has increased in neighbourhoods with these sites compared to others.
“We are seeing a troubling trend within public discourse and public policy — the vilification of people who use drugs,” says Sandra Ka Hon Chu, Co-Executive Director of the HIV Legal Network. “We have seen a desire to use the law to punish the most marginalized among us and remove their access to healthcare. Today, we are using the law to try to support, rather than punish, our community members.”
The Government of Ontario’s decision to push this bill through the legislature shows a complete disregard for the health and lives of people who use substances in this province. People will die because of the Community Care and Recovery Act. We cannot allow this to go unchallenged and our legal action today seeks to reverse this dire course.
2024 12 09 – Issued Notice of Application -The Neighbourhood Group
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For further information, please contact:
Bill Sinclair – President and Chief Executive Officer of The Neighbourhood Group Community Services
(T) 416 925 2103 x1239 | CEO@tngcs.org
Sandra Ka Hon Chu – Co-Executive Director, HIV Legal Network
schu@hivlegalnetwork.ca
Rahool Agarwal – Lax O’Sullivan Lisus Gottlieb LLP
(T) 416 645 1787 | ragarwal@lolg.ca
Carlo Di Carlo – Stockwoods LLP
(T) 416 593 2485 | carlodc@stockwoods.ca
Avnish Nanda – Nanda & Company
(T) 780 916 9860 | avnish@nandalaw.ca