On January 31, 2022, the Alberta government will implement new restrictions on delivering and accessing supervised consumption services in the province. Among the restrictions is the requirement that to access these services, individuals will be asked to provide their Personal Health Number and other identifying details. This information will then be logged and stored in Alberta’s electronic medical records systems and shared with others without any further consent.
Currently, around 5 people a day are dying of overdoses in Alberta, meaning it is more important than ever that supervised consumptions services have low barriers to entry in order to provide life-saving benefits to as many individuals as possible. Surveys of individuals who access supervised consumption services, as well as academic research, demonstrate that if the personal identification of substance users is requested, even on a voluntary basis, they will stop accessing these services. They have well-founded concerns that if they provide personal identification they will be outed as users of illegal substances in the health care system, and to police agencies and others, which could result in discrimination in the health care they receive and an increased risk of being investigated and arrested for their substance use. Given the valuable role supervised consumption sites have in in reducing the the high risk of overdose death and other harms associated with unsupervised substance use, this disengagement comes with potentially fatal consequences.
Moms Stop the Harm Society (MSTH) and Lethbridge Overdose Prevention Society (LOPS) sued the Alberta government on the restrictions it imposed on supervised consumption services in the province. They allege that the measures breach the rights of substance users under the Charter of Rights and Freedoms; frustrate the purpose behind the federal government’s framework for regulating supervised consumption services; and are ultra vires to the provincial powers enumerated at section 92 of the Constitution Act, 1867.
In the lawsuit, the MSTH and LOPS asked the Court to delay the implementation of the personal identity requirements until the constitutionality of the measures as a whole can be decided. Although the personal identity requirements form only a portion of the overall framework, experts and substance users agree that these requirements specifically will cause immediate, serious harm to a large number of Albertans, leading to mass death that will exceed the current record overdose death rates.
On January 10, 2022, the Court of Queen’s Bench of Alberta issued its decision on MSTH and LOPS’s request that the Alberta government’s personal identity requirements to access supervised consumption sites be delayed until the legality of the new law is decided.
Although the Court agreed that people will die as a result of the personal identity requirements, it found that preventing the deaths of marginalized, vulnerable Albertans did not provide a greater public benefit than allowing the Alberta government to formulate addictions policy in an unrestrained manner. Allowing the Alberta government to proceed with its restrictions mattered more than avoiding the preventable deaths of Albertans through the same measures that the Court also accepted could be unconstitutional based on MSTH and LOPS’ legal arguments.
The Court’s finding is remarkable, and in the opinion of MSTH and LOPS, made on a series of legal and factual errors. A major error is that the Court did not correctly balance the right substance users have to life against Alberta’s ability to regulate addictions policy. The Court did not even refer to the harm that the identity requirements will cause to substance users as part of its balancing exercise. Instead, it looked at how strong one of the eight arguments MSTH and LOPS advanced to claim Alberta’s conduct was unconstitutional, which was the paramountcy argument, and balanced it against whether Alberta has the jurisdiction to develop addictions policy, not what public benefit the identity requirements would specifically achieve.
The Court also failed to appreciate the paramountcy argument advanced by MSTH and LOPS, conflating it with something entirely unrelated. It also appears to have misunderstood the doctrine of paramountcy on a foundational level.
The most striking error is the finding that preventing the deaths of many vulnerable Albertans through delaying the implementation of the identity requirements until their constitutionality can be determined provides a lesser public benefit than allowing Alberta to formulate addictions policy in an unrestrained manner. Avoiding the preventable deaths of countless Albertans — our friends, family members, and neighbours — grants a far greater public benefit than the temporary delay in implementing the identity requirements and the minor inconvenience an injunction would cause to the Alberta government.
The decision diminishes the personal worth and dignity of Albertans who use substances. It instills the notion that the lives of substance users do not matter. It reinforces their vulnerability and marginalization. It brings our system of justice into disrepute.
For this reason, MSTH and LOPS are seeking an expedited appeal of the Court’s decision to the Alberta Court of Appeal. An emergency appeal must be heard by January 31, 2022 or the requirements will come into effect and lead to the deaths of countless Albertans until an appeal can be heard on the standard time frames (which can take months).
MSTH and LOPS’ appeal materials are complete and submitted to the Court for filing. MSTH and LOPS has written to the Alberta Court of Appeal for an expedited hearing date, outlining the exceptional circumstances necessitating an expedited appeal hearing date. All that needs to happen for an expedited hearing is for the Alberta government to file its written argument and for the Alberta Court of Appeal to provide a date for a hearing.
Below are links to the decision and the appeal materials we have submitted to the Alberta Court of Appeal for Filing. MSTH and LOPS encourages you to review them to understand the situation and the exceptional circumstances and bases for the request made to the Alberta Court of Appeal to hold an expedited hearing in this matter: