Transformative Illegality

Overdose prevention Ottawa, unsanctioned harm reduction services, and ongoing prohibition

Lisa Wright

6 mars 2019

For decades, people who use drugs have organized survival tactics with their communities and worked to dismantle the harm-producing system of prohibition under the umbrella term of the harm reduction movement. Community-organized and -operated overdose prevention sites (OPS) are the latest iteration of this movement, working in the context of the overdose emergency to save lives and effect systemic change. Beginning in 2016 with the opening of OPS in Surrey (briefly) and then Vancouver, this tactic was then adopted by activists in Toronto and Ottawa in August 2017. OPS are supervised consumption sites (SCS) by another name and regulatory model. SCS are legally sanctioned by the federal Minister of Health through an exemption process according to section 56.1 of the Controlled Drugs and Substances Act.

Responding in grief to the ongoing injustice of the criminalization and preventable deaths of people who use drugs, and inspired by the opening of OPS in Vancouver and Toronto, Overdose Prevention Ottawa (OPO) organized and operated an OPS in downtown Ottawa for 78 days. I was one of a small group of people that worked to create a space for people to consume drugs that was sheltered from the constant surveillance and harassment of police and vigilantes and where volunteers were on hand with naloxone to respond in case of an overdose.

In line with the harm reduction movement, OPO’s work was two-pronged: providing a life-saving service while constantly advocating for an end to prohibition as the means for ending the overdose emergency. OPS created by community members are practical—they take action to prevent deaths and overdoses. And they are political—they identify the criminalization of drugs and the people who use and sell them as the catalyst for the overdose emergency.

OPO received much support from the community and neighbours. Our supporters from across the city would visit the site daily; they would bring cash donations, food for service users and volunteers, and responded rapidly to calls for support.

Local politicians, a handful of antagonistic neighbours, and some media, however, constantly denounced OPO and its volunteers as lawbreakers. OPO was perceived to be illegal because it operated without an exemption and outside of the institutional and socio-medical approach to harm reduction. These condemnations not only threatened that the strong arm of the law would shut down the site, they also attacked OPO’s ability to provide a safe place for people to consume drugs.

In response to the critique of OPO’s actions, the Canadian HIV/AIDS Legal Network and Pivot Legal Society released a paper arguing that the service was legally justifiable. Within the context of the overdose emergency, the paper drew on the Supreme Court of Canada’s 2011 Insite decision and the Good Samaritan Drug Overdose Act of 2017 to justify OPO’s operations.

Transformative illegality, Enright and Cloatre (2018) define, is a process of legal change resulting from both everyday and exceptional events and practices that are (perceived to be) illegal. This concept of transformative illegality is a useful tool for understanding OPO’s actions within the trajectory of the harm reduction movement and the multi-level legal reaction, which worked both to support OPS and to limit their accessibility.

At the local level, approximately one month after OPO’s site opened, the local public health unit opened a supervised injection service. This service was sanctioned using the exemption of another agency whose opening had been delayed by bureaucracy. In response, OPO continued to operate, noting this service wouldn’t meet the needs of the community.

At the provincial level, the Emergency Medical Assistance Team was dispatched in early November 2017 to provide the Toronto OPS with a heated tent for continued operation as winter approached. Although the heated tent did not meet the needs of the community, the support fuelled the continued work of the Toronto OPS. By contrast, the City of Ottawa would not give permission to the province to dispatch a similar tent on its property and without this support OPO decided to close its service.

Also in November 2017, the federal government responded to OPS through a change in the exemption process. The Minister of Health created a new process for province- or territory-wide exemptions, moving away from the previous model that relied solely on federal review of individual applications. Ontario was granted a provincial exemption for OPS in December 2017, and before the election in June 2018 more than a dozen sites opened.

The legal response to OPS focused on only the practical aspect of our service: creating spaces where people can consume drugs. These responses were shortsighted. Initially operating outside of the legal exemption process, OPS challenged the legitimacy of law. Law responded by bringing OPS into its scope, which in effect suppressed the need for systemic change. This legal reaction maintained prohibition and opened up the possibility of limiting access to these services.

Moving forward to 2019, the Ontario provincial government is actively limiting access to these services through the creation of the Consumption and Treatment Services program. Under this new program, SCS and OPS funded by the province are limited by the number allowed to operate, a lengthy application process, and short application deadline, all of which is in stark contrast to the needs of the community.

As a process, the transformative illegality of the harm reduction movement does not end with these legal responses. In the face of the Ontario Government clawing back the recent advances of the harm reduction movement, we must focus on what is next. What are the community’s next steps for addressing the harms of prohibition?

Lisa Wright is a doctoral candidate at Carleton University and Co-Founder of Overdose Prevention Ottawa.