• reconciliactionyeg

The promise of death in the balance of convenience

Tansi Nîtôtemtik,


You may have heard that Alberta is in the midst of an opioid overdose epidemic. In 2021,

Deep in a winter woods by Aaron Paquette

more than 100 people died every single month from an opioid overdose. [1] A disproportionate number of the dead are Indigenous people. Alarmingly, the rate of Indigenous people dying from an overdose rose by 105% between 2019 and 2020. [2]



One of the most successful tools in the fight against accidental overdoses are low barrier supervised consumption sites (SCS). SCS offers individuals a safe, hygienic space to use illegal substances under the watchful eye of trained healthcare providers. These healthcare professionals are specially trained to recognize and reverse overdoses, counsel on safe usage, and, by developing a relationship with clients, provide referrals and support when they are ready to stop using.[3]


Alberta’s experience with SCS began in 2017, and in their first two years of operation staff reversed over 4300 overdoses.[4]


And yet, the current provincial government has undertaken a concerted effort to undermine the success of these programs and reduce the number of SCS within the province.[5] In 2021, one of the three Edmonton sites was closed, effectively reducing the number of booths available in the city from 15 to nine.[6]


Additionally the government produced a one-sided review of SCS which primarily focused on claims of “social disorder”, yet completely excluded any discussion of harm reduction. [7] More recently, the government struck an all-party committee to look at the issue of safe drug supply, but only invited stakeholders opposed to such programs to present to the committee.[8]


The government is also taking more nuanced steps to stem the effectiveness of SCS. As of April 1, 2022, clients at the sites will have to provide their healthcare number in order to receive services.[9] One of the key drivers of SCS success is the assurance of anonymity provided to clients. They are, after all, using illegal substances. Experts, and clients, maintain that collecting and recording identifying information will create a substantial barrier to accessing SCS, not only because of the loss of anonymity, but also because marginalized individuals (especially those experiencing homelessness) will be disproportionately disadvantaged.[10]


Advocates challenge the constitutionality of the Province’s regulations:


Harm reduction advocates are seeking an injunction to prevent implementation of these identification requirements while they proceed to challenge the constitutionality of the regulations in court.


Thus far, they have been unsuccessful at both the Court of Queen’s Bench[11] and the Court of Appeal [12], but on February 16th, they sought leave to appeal at the Supreme Court of Canada (SCC).[13] In their application for leave, they asked the Court to expedite it’s processes so the matter can be resolved before the regulations come into effect on April 1. [14]


At the injunction stage, their argument has highlighted a divergence in Alberta jurisprudence regarding the balance of convenience test that is part of the assessment in deciding whether or not to grant injunctive relief against state action.[15] That test asks “which party will suffer the greater harm from the granting or refusal of an interlocutory injunction.”[16] Both Alberta courts recognized and accepted that creating barriers to access SCS will result in overdose deaths that could have been prevented.[17] Both courts declined to find that this fact tipped the scales in part because the number of deaths that would result is unknown and unmeasurable.[18]


It is in moments like this and reasons like these, that those of us called to the practice of law must ask ourselves - what are we doing here? If the common law is found to actually demand that we answer the question “how many preventable deaths are too many preventable deaths?” - we have much bigger problems than whether or not SCS is good public policy.


For the sake of the those who died today and those who will die tomorrow - all from preventable overdoses, and especially for our Indigenous relations who have this deck stacked against them (not to mention the many others) - we’re grateful for the work of advocates and public interest law lawyers who are taking this question all the way to the SCC.


In closing, we encourage each of you, dear readers, to visit a provider and pick up a free naloxone kit for reversing overdoses. They are small, easy to use, and can save a life.


Until next time,


Team Reconciliaction YEG


 

[1] The Government of Alberta provides a dashboard with frequently updated data on the state of the opioid epidemic in the province. The chart below comes from “Alberta Substance Use Surveillance System”, online: <https://www.alberta.ca/substance-use-surveillance-data.aspx>.



[2] Alberta, Ministry of Health, Alberta Opioid Response Surveillance Report: First Nations People in Alberta (December 2021) , online: <open.alberta.ca/publications/alberta-opioid-response-surveillance-report-first-nations-people-2021>.


[3] Alberta Health Services, “Supervised Consumption Services”, online: <www.albertahealthservices.ca/info/Page15434.aspx>.


[4] Clare Clancy, “More than 4,300 overdoses reversed at Alberta supervised consumption sites since 2017: Report”, The Edmonton Journal (26 August 2019), online: <edmontonjournal.com/news/local-news/more-than-4300-overdoses-reversed-at-alberta-supervised-consumption-sites-since-2017-report>.


[5] Benjamin Perrin, “Alberta’s war against safe injection sites”, Maclean’s (12 March 2020), online: <www.macleans.ca/opinion/albertas-war-against-safe-injection-sites/>.


[6] Caley Gibson, “Advocates raise concern over closure of Edmonton supervised consumption site: ‘It’s puzzling’”, Global News ( 28 April 2021), online: <globalnews.ca/news/7818759/edmonton-boyle-street-supervised-consumption-site-closed/>.


[7] Perrin, supra note 5.


[8] Alanna Smith, “NDP members resign from Alberta safe drug supply committee”, The Canadian Press (2 February 2022), online: <globalnews.ca/news/8595760/alberta-ndp-resign-safe-drug-supply-committee-political-stunt/>.


[9] Application for Leave to Appeal, Moms Stop the Harm Society v Alberta, at para 1. Available online: <static1.squarespace.com/static/55de865ee4b019416bec193c/t/620e810e531f877878035887/1645117711503/%5BFiled%5D+Leave+to+Appeal+Argument+-+SCC.pdf>.


[10] Ibid, paras 26-28.


[11] Moms Stop the Harm Society v Alberta, 2022 ABQB 24 [QB].


[12] Moms Stop the Harm Society v Alberta, 2022 ABCA 35 [CA].


[13] Application for Leave, supra note 9.


[14] Ibid at para 86.


[15] Ibid at paras 56-70.


[16] RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 at 342.


[17] QB at para 54; CA at para 36.


[18] QB at para 52; CA at para 36.

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