Open Letter to Minister Carolyn Bennett
Open letter in response to the Court of Queens Bench’s decision to reject our request for an injunction on the Alberta regulation for consumption services.
Dear Honourable Minister Bennett
As co-litigants in the above-noted case, the Lethbridge Overdose Prevention Society (LOPS) and Moms Stop the Harm (MSTH), together with our allied co-signatories, ask that you urgently intervene in this matter. Doing so is critical to upholding your responsibilities as Canada’s Minister of Mental Health and Addictions and Associate Minister of Health, particularly at a time where multiple crises put people who use drugs at ever-mounting risk of overdose and death. Specifically, we ask that you:
Write to your Alberta counterpart to assert federal jurisdiction over the regulation of supervised consumptions services in Canada, which are legislated and governed by the Controlled Drug and Substances Act (CDSA) and amend class- and individual site-exemption letters issued to service providers to clarify that the mandatory collection of personally-identifying information is prohibited within federally exempted supervised consumption services.
Issue an immediate nationwide exemption under section 56(1) of the CDSA to protect all people in Canada against criminalization for simple drug possession.
In addition, we ask that you meet with us and our legal team to discuss this matter. The lives of the people we love are at risk and while the Province of Alberta is experiencing unprecedented drug poisoning deaths (over 1400 in 2021), every life-saving measure needs to be supported. This includes SCS and other harm reduction services.
As you know, MSTH is a network of Canadian families impacted by substance-use related harms and deaths, and LOPS is a volunteer-run harm reduction organization based in Lethbridge, AB. Taking our province to court was not an easy decision, and was the last resort to save lives.
Our and our allies response to the Court of Queens Bench ruling
Disappointment does not begin to describe how we feel about this incredulous decision by the Court of Queen’s Bench of Alberta. We are angry, we are confused, we are beyond dismayed and most importantly, we fear for the lives of the people who will now no longer have the low barrier access to supervised consumption services that are so essential to saving lives. We need to meet people where they are at as well as establish trusting relationships. Substance use is highly stigmatized and considered a crime in Canada, and people who use have had negative experiences with the health system. Asking for identification is driving people away from the services that save their lives. This, in turn, removes the opportunity to make necessary connections to saving lives. This decision further confirms the lack of understanding and compassion for people who wisely make use of consumption services in our province. This ruling bluntly says “this government’s right to drug making policies supersedes life”. If the policies were effective, we would not need this court case! Petra Schulz and Kym Porter, Moms Stop The Harm
As veteran front liners, the volunteers with LOPS understand well how fragile the trust is between people who use drugs and the government. After enduring years of demonizing rhetoric and watching their friends and loved ones die of preventable causes, people who rely on harm reduction to survive are understandably suspicious of giving the Alberta government any more information which can be used to identify them. This decision, which acknowledges the loss of life sure to follow but considers it of secondary importance to the government's agenda, only reinforces the belief that to those in power in Alberta, some lives are only worth saving if they adhere to a limited, paternalistic, and above all moralizing ideal of recovery. LOPS was founded after the closure of the busiest SCS in Canada with the full knowledge that the Government of Alberta had chosen to abandon people who use drugs to die in their streets and homes rather than reckon with the realities of the drug poisoning crisis. This decision only affirms to us that our mission and tactics are necessary, and we stand with the growing number of Canadians who recognize our right to provide care for our neighbours when our elected leaders refuse their obligations. Timothy Slaney, Co-founder – Lethbridge Overdose Prevention Society
This decision is yet another reminder that the lives of people who use drugs are not a priority of those who hold power in our society. It is devastating but entirely unsurprising that a deadly status quo has prevailed over the health, safety, and liberty of our community. Alberta’s actions are a war on people who use drugs. Caitlin Shane, Lawyer, Pivot Legal Society
With record overdose deaths in Alberta, the government can’t afford to erect more barriers to supervised consumption services. But in the court’s view, Alberta’s ability to make drug policy decisions outweighs the irreparable harm that will occur when people lose access to lifesaving health care – exemplifying tragic disregard for the lives of people who use drugs, especially in the context of the province’s miserable track record. Sandra Ka Hon Chu, Co-Executive Director, HIV Legal Network
There are no words to adequately relay the sadness we feel with regard to this decision, as in the real world this day, in Alberta several human lives will be lost to drug toxicity within the illegal drug market. In our view, the granting of the injunction would in no way impede the Alberta Government from implementing a comprehensive evidence-informed response to addiction and would actually enhance that opportunity based on the significant body of evidence of the importance of barrier-free access to supervised consumption services for those at risk of drug poisoning. Donald MacPherson, Director, Canadian Drug Policy Coalition
Our court challenge: An overview
ABQB decision Moms Stop the Harm Society vs. Her Majesty The Queen, Alberta, 2103 11484
Our understanding of the Court of Queen’s Bench of Alberta (“ABQB”) January 10, 2022 dismissal of our request for an Interlocutory Injunction to suspend portions of the Alberta Government’s recommendations (“Regulations”) regarding supervised consumption sites (“SCS”).
A successful Interlocutory Injunction application requires that the party bringing the application satisfy a three-part test:
Is there is a serious issue to be tried?;
Will the applicants (individuals who use SCS) suffer irreparable harm if the injunction is not granted?; and,
Which party will suffer the greater harm from granting or refusing the Injunction (often called a “balance of convenience”)?
The Government of Alberta conceded that this was a serious issue to be tried, and we met the burden of establishing that individuals who use SCS would experience irreparable harm if the injunction was not granted. It was the third stage of the test where the application was dismissed on grounds that, on a balance of convenience, the Government of Alberta would suffer the greater harm with the outcome of the motion.
Determining the balance of convenience requires weighing the rights that the Regulations would infringe, against the alleged public interest benefits advanced by the Regulations. The Court determined that we had not met the burden of illustrating that the suspension of the challenged Regulations would provide a public benefit greater than the public interest granted by the Regulations.
Despite acknowledging that implementing the Regulations will lead to irreparable harm to people, for instance, increased risk of overdose and death, the Court has ruled that this outcome matters less than allowing Alberta to develop drug policies without constraint. This ruling shows that unregulated state action provides a greater public interest than the prevention of death and harm to Albertans. We decry this logic, which prioritizes government autonomy over the lives of our loved ones.
In Conclusion
In conclusion, we ask that you, Minister Bennett, heed our requests and urgently meet with us to discuss this case.
Signed,
Co-Litigants
Petra Schulz for Moms Stop The Harm and Timothy Slaney for Lethbridge Overdose Prevention Society
And our allies:
Alberta Alliance Who Educate and Advocate Responsibly (AAWEAR)
Boots on Ground Harm Reduction
Canadian Drug Policy Coalition
EACH+EVERY Business for Harm Reduction
Friends of Medicare
HIV Legal Network | Réseau juridique VIH
Pivot Legal Society
Mainline Needle Exchange
Prairie Harm Reduction
Harm Reduction Nurses Association (HRNA)
In August 2021 LOPS and MSTH commenced legal action against the Government of Alberta to ensure that no additional barriers to access and provision of life-saving supervised consumption services are introduced.