A recent decision by the Court of Queen’s Bench of Alberta is being praised by the provincial government, but criticized by overdose prevention groups.
On Monday, Hon. Justice R. Paul Belzil dismissed an injunction application filed in September by Moms Stop the Harm and the Lethbridge Overdose Prevention Society which alleged the new rules governing supervised consumption sites are unconstitutional and will worsen the growing overdose crisis.
Under new regulations, service providers were to collect personal health numbers from clients, which critics argue will deter people who use substances from accessing the service.
In a written decision, the justice said while the measure could cause “irreparable harm… some of which may result in death,” an injunction would restrict the province’s ability to create addictions policy.
“The challenged regulation is part of an overall strategy to respond to the opioid overdose epidemic within the broader framework of the health-care system,” Belzil wrote. “Whether one agrees or disagrees with this approach, it cannot be denied that Alberta is responding with a defined policy and not ignoring the issue.”
When the two non-profit groups filed the lawsuit, the province delayed implementing the personal health number requirement until January 2022.
“There’s so much stigma associated with substance use that people don’t want to be identified as using illegal, hard drugs,” said Avnish Nanda, an Edmonton-based lawyer representing the groups.
“We need to ensure that these services are low-barrier, especially given the fact that more than four Albertans die each day of an overdose. We want those folks to use those substances in a supervised consumption site, where there’s never been an overdose death.”
“This will lead to a large number of substance users in Alberta to no longer access these safe spaces to consume substances,” he explained.
“We went to the court to essentially ask for this new measure to not be implemented and it’s going to be implemented on Jan. 31 of this year. We wanted to delay that until our lawsuit can be decided.
“The court said that we have a basis to sue the government and that people will die as a result of this measure, but that was not strong enough to stop the government’s measure from being implemented until the end of the trial,” Nanda said.
“They’re going to allow this to continue, even though it’s going to harm people while this lawsuit proceeds through the court.”
The decision reads: “Alberta concedes there is a serious issue to be tried” and “I am satisfied that the applicants have met the burden of establishing that irreparable harm will occur to some illicit drug users if the interlocutory injunction is not granted.”
So, there are grounds for a lawsuit but not to approve the injunction request, the lawyer explained.
“It’s disappointing, because the court recognizes that people will die as a result of these measures but that’s not enough for it to stop them temporarily until this lawsuit is decided,” Nanda said, adding it will likely take about two or three years until the trial will take place.
He said an appeal is likely.
In his decision, the justice found that approving the injunction would have “severely restricted” Alberta’s ability to formulate addictions policy, which “must be assumed to be contrary to the public interest.”
He explained the groups that filed the lawsuit did not demonstrate that removing the public health number requirement would provide greater public benefit than keeping it in place.
“I conclude that the balance of convenience does not weigh in favour of granting the interlocutory injunction and accordingly, the application is dismissed,” Belzil wrote in his decision.
The other requirements laid out in the province’s supervised drug-use guidelines, including client referrals and physical site requirements, came into effect at the end of September 2021.
The decision outlined that the requirement means service providers will have to collect personal health numbers on intake or help clients obtain a health card — returning documents to the client immediately afterwards and destroying any copies to identity documents when no longer needed — and telling clients about the limited purposes in the Health Information Act that allow the collection and use of a personal health number.
The decision explained the personal health number is also used for social and income support programs and that collecting this information at supervised consumption sites can help clients more easily access these resources.
It did point out that while the new guidelines say no person should be refused access to supervised consumption services if they are in the process of obtaining or renewing their coverage, there is a “noticeable” absence of any reference that people will not be refused access “if they refuse to provide a personal health number or do not have one, and are not interested in obtaining one.”
“The fact that somebody can say: ‘Well, this may result in death’ — it’s infuriating,” said Lori Hatfield, Lethbridge MSTH lead.
“When it happens to your family, you don’t sit back and say: ‘Well, I guess somebody’s going to die from that.'”
Hatfield believes the new measure will deter people from accessing the sites.
“People don’t want to say their name, they don’t want to give out personal information. That is very confidential information.”
Minister of Mental Health and Addictions Mike Ellis issued a statement Tuesday, saying he was pleased the injunction application was dismissed.
It means the “much-needed regulation can move forward,” he said.
“These quality standards were introduced with the intention to improve community safety in the areas surrounding supervised consumption sites, improve the quality of services that are being offered to people with addiction, and ensure that clients are better connected to the health-care system.”
“We will not allow our communities to become chaotic and disorderly.
“We must ensure that while we treat addiction as a health-care issue we are also keeping communities safe and respecting law and order,” Ellis added.
“That is exactly what these quality standards will do and why they are essential to safe and orderly provision of high-quality supervised consumption services as part of a recovery-oriented system of care.
“These services must be provided in a manner that is fair to the community, assertive in dealing with the illness of addiction and compassionate to the person who is struggling. Most importantly, recovery must always be recognized as an achievable goal and clients should be assertively encouraged to pursue it.”
— With files from Erik Bay, Global News and The Canadian Press