by Sheila Jennings - Families ask: Why Can’t We Sue?

Member of MSTH since January 2018, she is a non-practicing Barrister and Solicitor member in good standing with the Law Society of Ontario. Sheila has taught legal studies and criminology at the university level, has an MA in Critical Disability Studies. She completed a PhD at Osgoode Hall Law School in the areas of family law, constitutional law, and care and support law.

Sheila’s blog post conveys complex legal matters that not everyone wants to explore in detail. She has provided this summary to help us understand the issues.

Summary.

Can we sue the government? In summary, it is not easy and it is very costly, but there are a few situations where legal action is warranted and have shown success.

Societal change can lead to legal change:

Looking back at a history of law in Canada, prior situations concerning common perceptions that certain things were immoral, that were stigmatized, and that were criminalized illustrate that societal change has led to legal change. Situations that became more widely socially accepted became protected through law.

In this blog post Sheila explores the matter of legal claims of People Who Use Drugs (PWUD) and their loved ones in the following areas: individual rights; constitutional rights; tort claims; administrative law, provincial human rights tribunal processes and socially contextualized defenses used in criminal law.

First, Sheila explores the concept of relational rights theory, which helps in understanding the expression of the desire to bring claims of families and friends of PWUD. Sheila gives examples of legal cases, focussing on areas where there is promise in the realization of their rights by PWUD and their families (including families of choice). In this regard the promise of the now twelve-year-old Portland Hotel Society (PHS) Supreme Court of Canada legal precedent that ensured the continued operation of the Insite consumption site, is examined.

In a hopeful decision PHS recently assisted Ophelia Black’s constitutional and judicial interest in obtaining a temporary injunction against the Alberta government to be able to continue to receive safe supply after access to safer alternatives were abruptly halted in Alberta. For more on Ophelia’s story see Drug Data Decoded Ophelia Black versus the UCP.

It is suggested that PHS will continue to provide a strong foundation upon which other cases will also be built. Sheila also highlights section 12 of the Charter in realizing the rights of substance users and their families not to experience cruel treatment. She comments on the efforts to have rights recognized and suggests that advancing the rights of PWUD is happening in a staggered manner while acknowledging the significant legal barriers present to those who seek justice for their loved ones and who seek to hold governments accountable. A more recent example is the Drug User Liberation Front (DULF), whose cofounders have been charged with trafficking, but who plan to challenge their arrests on constitutional grounds. Barriers to challenging government decisions doing so include those of justiciability issues and the high costs of litigation.

Sheila suggests that small “wins” across legal domains may be much greater than the sum of their parts, with the hope that at some point there will be a critical mass reached and there won’t be the same need to sue in civil law, to bring a human rights application, or bring a Charter rights infringement claim, because drug user rights will have been legally recognized at last.

This blog does not address rights protected in International Law, such as the International Covenant of Civil and Political Rights, the United Nation Convention on the Rights of Persons with Disabilities, or other such instruments. It is widely understood however that international rights lend weight to court findings in domestic court decisions and would do in decisions made in favour of the rights of PWUD and those who love them.

To read more and to download a copy of the document.