Alberta's top court dismisses challenge of ID requirement at supervised drug-use sites

Alberta's top court has dismissed an appeal from harm reduction advocates who tried to stop a provincial policy that requires people who want to use a supervised drug-injection site to provide their health-card number to get inside.

The rule comes into force Tuesday.

The Alberta Court of Appeal heard the emergency request on Friday after a judge denied an application earlier this month that would have immediately suspended the requirement.

The Appeal Court said in its decision that the chambers judge, Justice Paul Belzil, accepted that there is "an opioid epidemic in Alberta," but added that the solutions are not obvious.

An overdose epidemic

"Public health authorities in Alberta are struggling to respond to this epidemic, as are public health authorities in every other province or territory in Canada," the three Appeal Court judges wrote in their decision.

"The challenged regulation is part of an overall strategy to respond to the opioid overdose epidemic within the broader framework of the health-care system."

Moms Stop the Harm and the Lethbridge Overdose Prevention Society, the two non-profit societies that were challenging the Alberta government, argued that the requirement to provide a health-care number could increase barriers to the sites and increase the risk of overdoses.

The health number requirement is part of the United Conservative government's new regulations for existing and future supervised drug-injection sites.

It also obliges service providers to develop "good neighbour agreements" to support community integration and to maintain robust records on clients, adverse reactions to substance use and referrals to treatment. If operators do not meet the standards, they won't get provincial funding.

Threshold not met, court says

Lawyers representing the government said the rule will help service providers guide people to recovery-focused supports and that guidelines afford discretion to operators.

The Appeal Court judges said the central issue is whether the two advocacy groups met the test for an injunction.

"The decision to grant an interlocutory injunction is a discretionary exercise, with which an appellate court must not interfere solely because it would have exercised the discretion differently," the decision reads.

"Appellate intervention is justified only for an error of law or principle, where there are palpable and overriding errors of fact, or where the exercise of the discretion is so aberrant that no reasonable judge could have reached the decision."

The decision also says that while the judge was satisfied the advocacy groups met the burden of establishing that irreparable harm would occur to some users of illicit drugs, he found it is "extremely challenging to estimate how many users might possibly be deterred by the requirement.

"[Government lawyers] have confirmed that Alberta Health has directed that while requesting a personal health number is mandatory at intake, no person will be denied service if they refuse to comply," the decision says.

"It appears the 'soft practice' of the Lethbridge Overdose Prevention Site in making `reasonable attempts' to collect personal health numbers during intake or as clients access service, and in using discretion when deciding when to broach the subject ... has not resulted in any client walking away without receiving service."

Edmonton-based lawyer Avnish Nanda, who is representing the plaintiffs, called the ruling a diminishment of the lives of people with substance use issues.

"It's basically finding that their lives don't matter or matter enough as part of this equation of whether we can stop government action for a temporary period of time in order to stop irreparable harm that consists of the deaths of substances users," Nanda said.

Mike Ellis, associate minister of mental health and addictions, said the regulations are aimed to implement quality standards for supervised consumption services.

"Every Albertan with addiction who accesses the health-care system should have the opportunity to pursue recovery and improve their lives," Ellis said in a statement.

"These quality standards were introduced to ensure that clients are better connected to the health-care system, to improve the quality of services that are being offered to people with addiction and to improve community safety in the areas surrounding supervised consumption sites."

Almost 1,400 people in Alberta died from substance-related overdoses between January and October 2021, which is a 26 per cent increase from the period the year before.