Will the courts stop Doug Ford from banning safe consumption sites?

What might the Charter of Rights and Freedoms say?

The Ford government is forcing the closure of 10 safe consumption sites - including sites his own government authorized - based on their proximity to schools.

Critics of the policy have condemned the move, noting that these sites save lives, and mitigate the spread of disease. Indeed, this decision will kill people.

Yet the fact that the decision is being made in the name of [cue Helen Lovejoy from The Simpson’s voice] the safety of our children might appear to give the government some cover, not just political cover (the general public’s lack of sympathy for people suffering from addiction should never be underestimated, not to mention the NIMBY factor here), but also legal cover. After all, what court in the land won’t recognize school safety as a pressing and substantial objective?

But I want to explain why I think the courts might not look too favourably at this policy under the Charter.

The landmark case on this question was decided in 2011, when the Supreme Court ruled that the federal government’s attempt to shut down Insite, Canada’s first supervised injection facility in Vancouver, was an arbitrary decision that infringed users’ right to life, liberty and security of the person under section 7 of the Charter. The Court recognized the considerable evidence built up to that point (Insite was a pilot project literally designed to test whether its form of harm reduction would help to address the significant drug problem endemic to the city’s downtown east side) that the facility saves lives and reduced the spread of disease.

In the course of the case, the Court also had to confront all of the false fears about safe consumption sites that we still hear about today: that they don’t work; that they encourage drug use; that they will become sites for increased lawlessness and crime. None of these were validated by the evidence. In fact, what the evidence showed - in addition the effectiveness of the site itself for reducing overdose deaths and disease - is that there was no impact on crime rates in the area (in fact, a local business association reported a decrease in crime during the period Insite had opened), and that there was a decrease in public use of drugs.

Since 2011, the evidence for the effectiveness of safe consumption sites is exponentially stronger. In spite of this, misleading statements and outright lies about safe consumption sites persist, including from right-wing politicians like Pierre Poilievre and, now, members of Ford government, as well as anti-science reporting by outlets like the National Post.

The Ford government is justifying this new ban on alleged increases in crime rates near the sites. It has offered no real evidence for this, simply claiming “[c]ommunities, parents, and families across Ontario have made it clear that the presence of drug consumption sites near schools and daycares is leading to serious safety problems.” In other words, the Ford government is reacting to public complaints, not to evidence.

Indeed, studies since 2011 have only reinforced earlier findings: multiple studies have found that SCSs actually lead to a decrease in crime. Others show that crime rates differ for different sites, suggesting that either there are effects relating to differences in implementation of particular sites that need to be accounted for, or that SCSs simply don’t have enough independent impact to dramatically affect crime rates. What’s clear, however, is that there’s no evidentiary basis for thinking that having a SCS in a neighbourhood causes increased crime. If such an effect were the direct causal effect of SCSs, the reverse wouldn’t be possible in many cases.

If this new policy decision is challenged in court, and I hope it will be, the courts will need to weigh whether the government’s reliance on public opinion is a sufficient basis by which to infringe the section 7 rights - indeed, the very lives - of those suffering from addiction.

A key difference from 2011 will be the more specific government objective of ‘keeping children safe’. On this question, the courts will need to assess any evidence before them carefully. While courts are reluctant to hold governments to the level of scientific proof, given the evidence, anecdotes do not demonstrate a reasoned apprehension of harm. Courts must demand that the government adduce evidence showing a link between safe consumption sites and increased crime (hard to do in the face of established evidence to the contrary). Indeed, a reliance on general crime rates will do little good here - crime rates go up and down on an annual basis, for many reasons, so it should not be enough for a government to throw up city-wide statistics.

If not crime, what is the nature of the danger the government is alleging here? What appears to really be pushing this is discourse on The Place Formally Called Twitter that there are more needles on the ground in areas of the sites, another allegation without much evidence (I’m not saying needles aren’t ever found on the ground, I’m suggesting they are more likely to be on the ground where there are higher rates of drug use, something that is independence of whether a SCS exists).

Courts will also need to consider minimal impairment. Note that the government isn’t talking about moving SCSs outside of their arbitrary 200m zone from schools, they’ve simply announced their outright closure. This shouldn’t just raise Charter alarm bells for whether the policy is minimally impairing, but for the rational connection between the policy and its objectives. If your concern is proximity to schools, but your solution is closure rather than moving the sites a bit further away, then you are acting arbitrarily. Moreover, even if there were a demonstrable link between SCSs and needles on the ground, there are almost certainly easier ways of mitigating this than shutting down life-saving facilities.

I think there’s a very strong basis for thinking Ford’s policy is unconstitutional. The problem, of course, is that if he decides to, Ford can protect his policy using the notwithstanding clause. If he does, the debate about the notwithstanding clause will no longer just be about whether it preserves democracy or attacks rights; it will include whether it should be used to kill people.