The lawsuit challenges the Community Care and Recovery Act that the legislature passed on Dec. 4
Thirteen years after the Supreme Court of Canada ruled that the federal Minister of Health acted unconstitutionally when he refused to exempt a Vancouver safe injection site from criminal drug laws, a Toronto supervised consumption site says new Ontario legislation will block access to the same federal exemption.
The Ontario legislature passed the Community Care and Recovery Act on Dec. 4, months after introducing new restrictions on supervised consumption services in the province.
Starting April 1, 2025, the CCRA will ban supervised consumption sites from being operated or built less than 200 metres from a school or childcare centre. The law also prohibits “a municipality or local board” from applying for an exemption under the federal Controlled Drugs and Substances Act to operate a supervised consumption site.
Under s. 56 of the federal law, the Minister of Health has the discretion to issue exemptions that allow people to use drugs at supervised consumption sites without the threat of criminal prosecution or sanction.
The Neighbourhood Group Community Services, which operates a supervised consumption site in Toronto’s Kensington Market, sued the Ontario government this week after receiving notice that the site will have to shut down in April. The site is within 200 metres of a childcare center that TNG operates.
Two individuals who use the supervised consumption site’s services are also plaintiffs in the lawsuit.
“In Ontario, the opioid crisis continues to worsen,” says Carlo Di Carlo, a partner at Stockwoods LLP who represents the plaintiffs alongside other lawyers from Stockwoods, Nanda & Company, and Lax O'Sullivan Lisus Gottlieb LLP. “There are experts… including Ontario-commissioned experts who say the same thing, which is: supervised consumption services will save lives. Supervised consumption services will decrease social disorder.”
Ontario’s CCRA is “going to have very severe consequences for people who use drugs and who use the consumption services,” Di Carlo says, adding, “It’s really an instance of government action that is without any support, and that actually flies in the face of the data that is out there.”
According to the plaintiffs, the CCRA breaches the Canadian Charter of Rights and Freedoms by violating their right to life, liberty and security, imposing cruel and unusual punishment on drug users, and discriminating against people who suffer from substance use.
The lawsuit also alleges that Ontario does not have the authority to enact the CCRA, which encroaches on the federal government’s “exclusive criminal law jurisdiction,” and that it is incompatible with the purpose of the Controlled Drugs and Substances Act.
The plaintiffs cite the SCC’s 2011 decision in Canada v. PHS Community Services Society, in which the high court found that then-Minister of Health Tony Clement violated the Charter when he refused to renew a s. 56 exemption under the Controlled Drugs and Substances Act for Insite. The Vancouver organization was the first government-sanctioned safe injection facility in North America.
Parts of Ontario’s CCRA “effect the very same outcome that was challenged in PHS Community Services Society, namely the closure of supervised consumption sites and the termination of supervised consumption services for the sites’ clients,” the plaintiffs argue. They added that the CCRA, like Clement’s decision to withhold the federal exemption from Insite, violates their right to life, liberty and security under s. 7 of the Charter.
“It’s still good law,” Di Carlo says of the 2011 opinion. “We think that our case very much falls in line behind the PHS decision.”
While Di Carlo believes this week’s lawsuit is the first to challenge the CCRA, supervised consumption sites have been hit by a spate of lawsuits in recent years. Neighbours of an overdose prevention site in Vancouver have fielded multiple legal challenges that alleged the facility increased crime and distress in the area.
In February, neighbours of another supervised consumption site in Toronto filed a proposed class action against the health center that operates the facility, the City of Toronto, and the federal and provincial ministries of health. The plaintiffs argued that the site’s operation has resulted in a series of public and private nuisances, including the killing of a resident during a gunfight between drug dealers in 2023.
That death prompted the Ontario government to commission an audit of the supervised consumption site. Two resulting reports recommended increasing funding for the site and expanding the availability of supervised consumption services.
An Ontario Ministry of the Attorney General spokesperson declined to comment on the lawsuit because it is before the courts.
