A judge deciding the fate of several supervised consumption services (SCS) sites has asked lawyers for both sides to bring the facts of the case in line with reality.
Ontario Superior Court Justice John Callaghan is currently considering a Charter challenge seeking to overturn a Ford government law that outlaws supervised consumption sites within 200 metres of schools or child-care centres. He issued an injunction last month allowing the sites to stay open while he considers the case. But news outlets soon reported that nine of the 10 sites shut down their SCS services anyway after the government threatened to cut their HART hub funding if they continued allowing drug use on-site.
Last week, Callaghan took the unusual step of calling the lawyers back to court. On Monday, he outlined why he did so.
He said the argument, as he understood it, was that the sites would close because of the legislation — not because they chose to become HART hubs. Then, he read the newspaper.
“I would’ve thought, given the magnitude of the matter, that there’d be some obligation to ensure the facts the court relies upon are somewhat accurate," he told lawyers representing Ontario and the charity running the one SCS site that didn't shutter, The Neighbourhood Group.
It's important to be clear about why the sites closed, Callaghan said, especially if the case is appealed.
"It’s not going to look good on anybody if we proceed … further up the judicial chain, and there’s not an accurate record," he said.
“I might resemble a potted plant, but I do live in the real world," he added.
Lawyers for both sides argued, in different ways, that the facts of the case as argued are correct.
Zachary Green, Ontario's lawyer, said the record is correct as of when the evidence was submitted. The case has a lot of moving parts — it's not like a car crash that's over and done with, he noted.
Green added that the judge is only seeing "one small piece" of the landscape. He suggested it was impossible to say why the sites closed, noting that the sites' Health Canada exemptions to federal drug laws also expired after the hearing — though he later said he was "not insinuating anything."
Carlo Di Carlo, arguing for the SCS side, said the sites closed because of the Ford government's law. They could have continued offering supervised consumption services, but the government would've cut their funding — it wasn't a real choice, he argued.
Ontario's lawyer argued courts should err on the side of deferring to government, pointing to a previous case where a judge noted he had far less information than the government and didn't want to “constitutionalize one small part" of the health-care system.
Also at issue was Health Minister Sylvia Jones' contradiction of her own lawyer. Last month, while Green was arguing that sites caught in the "buffer zone" close to schools and child-care centres could simply move, Jones' office said she wouldn't let that happen.
“The minister of health knows exactly what happened,” Callaghan noted.
A lawyer for the applicants noted that the government chose not to call a Ministry of Health witness to clarify the facts of the case.
Green insisted that the only issue in the case is the buffer zone, and the law doesn’t limit SCS sites outside those zones, he said.
The judge now has a "conundrum" about whether to consider the government's stated plans, or only rule on the law itself, said Derek Finkle, who lives near a former SCS site in Toronto and contributed to the government's case.
Callaghan told the lawyers to talk amongst themselves and let him know soon how best to all get on the same page. Lawyers will discuss whether they want to make additional submissions, lawyer Andrew Max said. The court was adjourned before lunchtime on Monday.
Bill Sinclair, CEO of The Neighbourhood Group, said he's "seen a lot of new faces this week" as clients from other sites migrate to his.
"I'm very worried about other cities, where there is only one site to begin with, and now there are zero sites. And so there's no care and no options for those people at all," he said.
Toronto harm reduction worker Zoë Dodd said she and her colleagues are being left to deal with the toxic drug "emergency."
"As the sites have closed, people have responded to people dead outside. People have responded to people overdosing outside," she said. She apologized for tearing up. "It's extremely emotional, because we have to fight health policy in the courts when we should be just getting the funding we need."