Pop-up overdose prevention sites are morally – and legally – legitimate

Despite the mounting toll of overdose-related deaths in Ontario, Ottawa’s mayor and certain city councillors are trying to close a “pop-up” overdose prevention site in Raphael Brunet Park. The site, staffed by concerned volunteers with Overdose Prevention Ottawa and funded via community donations, provides life-saving harm reduction services for people who use drugs. There have been more than 1,150 visits and no fatalities since it opened five weeks ago.

Various political “leaders” in Ottawa have criticized pop-up site organizers and been quick to presume the illegality of the site. The site operates without a federal ministerial exemption from the Controlled Drugs and Substances Act, which means that those using illegal drugs at the site can still be charged for possession when using a service that could mean the difference between life and death.

But it is this very absence of sanctioned services — where people can access health services without fear of prosecution — that has mobilized community volunteers where governments continue to dither. Even more shameful are politicians who oppose clearly authorized sites while criticizing community members who took the immediate initiative to save lives, even in the face of bureaucratic barriers.

Pop-up overdose prevention sites are an essential public health intervention. It is both legally and ethically misguided to suggest that these sites run afoul of the law.

First, such assertions fail to consider the constitutional violations that would likely result from closure, and disregard the spirit of the Supreme Court of Canada’s landmark decision regarding Vancouver’s Insite, Canada’s first authorized supervised injection site.

In 2008, Canada’s then-minister of health, Tony Clement, declared that “Insite is an abomination” and indicated he would refuse to renew an exemption for its clients and staff. The Supreme Court concluded that this refusal violated the rights of Insite’s clients to life, liberty and security of the person, contrary to the Canadian Charter of Rights and Freedoms. The Court said the denial of the exemption was arbitrary and that the harms were grossly disproportionate to any purported benefit of maintaining an absolute prohibition of illegal drugs on Insite’s premises.

Shuttering Ottawa’s pop-up site would engage the same interests of the hundreds of people who rely on that service for necessary health care — especially given the lack of adequate alternative local spaces. After months of waiting, Ottawa Public Health finally received an exemption from Health Canada to open an interim site, just days after the pop-up site opened. While the interim site is a step in the right direction, it can only serve two clients at a time; this will not fill the fatal gap in services that currently exists, especially if the pop-up site is forced to close.

It is also worth recalling the Good Samaritan Drug Overdose Act. Under this new federal law, individuals at the scene of an overdose are protected from simple drug possession charges. This protection extends to the person who called 911, the person experiencing an overdose, and any other person present. If emergency services were called to respond to an overdose at a pop-up site, charges for those offences could not be laid against either the people using the site or its volunteer health workers. So why are local politicians tossing around accusations of “illegal” behaviour against these Good Samaritans who are there to prevent harm and respond in the case of an overdose?

It’s also highly questionable whether pop-up site volunteers are criminally liable for the fact that people using the site are in possession of illegal drugs (also known as “constructive possession”). As city authorities have noted when objecting to the pop-up site in the park, Overdose Prevention Ottawa does not have control over the Ottawa’s park property. The volunteers staffing the site don’t exert control over who enters or exits the park, nor do they have control over the substances those individuals might carry. They are Good Samaritans who are present in a public space where people are using drugs and at risk of overdose. It’s absurd to suggest they are indirectly guilty of drug possession for being equipped to help in emergency circumstances.

Those who urge the shutting down of overdose prevention sites are on the wrong side of history. Instead of attacking volunteer health workers, politicians and police at all levels should support and learn from these courageous and life-saving initiatives. It’s neither criminal nor irresponsible to save a life. It is irresponsible and morally repugnant to impede others from doing so.

By Richard Elliott from the Canadian HIV/AIDS Legal Network and Caitlin Shane from Pivot Legal Society
Source: Ottawa Citizen