Alberta harm reductionists are reeling as their appeal over an injunction against a new provincial supervised consumption sites mandate was dismissed wholesale on January 31. The new regulations are now taking effect immediately, reducing people’s access at a stroke.
The injunction request, which has been fought over the last six months, concerned new provincial directives from the abstinence-oriented United Conservative Party, which forms the current provincial government. They require that people who wish to enter supervised consumption sites (SCS) must provide a personal health number (PHN).
“It’s incomprehensible how a court and a government can throw away lives without regard for what that means.”
The plaintiffs behind the injunction, Moms Stop the Harm (MSTH) and the Lethbridge Overdose Prevention Society (LOPS), are struggling to make sense of a judgment that they fear will cost lives.
“For those of us who know what it’s like to lose a loved one, it’s incomprehensible how a court and a government can throw away lives without regard for what that means,” Petra Schulz, co-founder of Moms Stop the Harm, told Filter.
The provincial court ruled that despite the mandate’s potential to cause harm and loss of life, it could proceed as planned. In acknowledging the risks, the court did leave the door open to receiving new information about any harms caused. But the plaintiffs say this has little meaning, as it will be near-impossible to document which deaths occur as a result of a person not being able to access SCS due to lack of a PHN.
“To me, it’s an unfathomable response and I feel that the court made an error to make that kind of interpretation, and people are dying… unless you have a report from someone that states they knew someone who needed an SCS and passed away as a result, it will be really hard to prove exactly who is dying and how,” Schulz said.
“What they’ve said is they don’t know exactly how many people will die, and because of that, they’re going to let the law remain in effect.”
Avnish Nanda, the legal counsel representing the plaintiffs, is equally aghast at the outcome.
“The court defined that harm will happen, people will die, they have accepted that; what they’ve said is they don’t know exactly how many people will die, and because of that, they’re going to let the law remain in effect,” he told Filter. “To me, it’s unprecedented and remarkable because the court is saying the lives of substance users don’t matter.”
In response to the possible harms of the mandate, the court told the plaintiffs that there is a voluntary principle attached to the new regulations, giving SCS the option to not revoke entry rights if a participant’s PHN is currently being processed, or even the discretion to admit those lacking PHNs.
But the plaintiffs find this meaningless, as it is merely a suggestion made by the court. It essentially leaves those overseeing Alberta SCS in a state of regulatory limbo—encouraged to bend the rules at their discretion but liable if they do so.
“It’s not outlined, it’s a recommendation, but at the same time providers are penalized for not following the guideline, so it’s left up to the interpretation of service providers, Schulz said.
“I don’t understand it, I’m at a loss, it doesn’t make sense from a legal perspective,” Nanda said.
However, MSTH and LOPS aren’t backing down yet, as the injunction request is only one piece of a larger human rights lawsuit that the two groups have been working towards since last year. The prospect of further proceedings has been recognized by the provincial court, which granted the plaintiffs grounds to proceed if they wish.
“As part of an injunction determination, the court had to find grounds on whether we can sue, and the court has found that there is a basis to do so,” Nanda explained. “So there’s a constitutional argument to be made. That does allow us to continue on; the problem is some people will die, even some of my clients, people who I talk to daily, as a result of this.”
The Hail Mary of potential federal intervention is not impossible, even if it doesn’t seem imminent.
Schulz has been continuing her search for allies over the course of the hearings and has identified potential champions within the Canadian government, such as Canadian Minister of Mental Health and Addictions Carolyn Bennet.
Bennet has not released any official statement on the matter but has been engaging in open correspondence with Schulz. The Hail Mary of potential federal intervention to intercept the verdict and underline that PHNs are not required under federal regulation is not impossible, even if it doesn’t seem imminent.
“I would like the federal government to step up to the plate,” Schulz said. “The federal government regulates consumption services and could issue a clarification [to state] that … in order to deliver and provide low-barrier access to these services, service providers no longer be instructed to collect PHNs.”
While the fight continues, Schultz fears that with looming border closures, the rise of the Omicron variant and wrathful truckers parked outside of the Canadian capital, this issue and its urgency will be a small blip on the political landscape.
“Unless you’re one of the families like us, who is mourning someone you love or desperately struggling to keep a loved one alive, it’s not on your radar,” she said. “Governments are always focused on what’s strictly important to their voters.”
Correction, February 2: An earlier version of this article suggested that a medical referral is also required to enter SCS under the mandate; this is not the case.
Photograph of an overdose prevention center in East Harlem by Helen Redmond