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Progressive police discretion helpful during opioid crisis

Toronto welcomed “The Works” — its first “legal” safe injection site — in August, but as the drugs being injected by the patients are still highly illegal, there is often confusion as to the legal status of these facilities, Toronto criminal lawyer Aaron Harnett writes in The Lawyer’s Daily.

As Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, explains, the Controlled Drugs and Substances Act (CDSA) is federal legislation that creates the illicit-drug prohibition, and provincial health legislation is incapable of superseding the CDSA.

“While the purpose of the CDSA is the protection of health and public safety, it is criminal law in pith and substance and properly falls under federal jurisdiction. So, the Ontario minister of health cannot protect or sanction the safe injection site. So where does that leave health-care workers who run The Works?” he writes.

Harnett notes that s. 56.1 of the CDSA was enacted in 2015 in direct legislative response to this Supreme Court of Canada case, and specifically provides a mechanism for exemption from the application of the CDSA to operate a safe injection site for illicit drugs.

“S. 56.1 sets out the requirement that provincial and municipal political bodies as well as local law enforcement and community groups endorse the exemption,” he writes.

During the Toronto application for CDSA exemption for the three permanent safe injection sites which are under construction, says Harnett, a “pop-up” facility opened in mid-August, which was not authorized by Health Canada. The site, he adds, was opened by staff in response to a sense of genuine urgency and was set up without the CDSA exemption.

“For a week it operated in violation of the CDSA. It was no more legal than the medical marijuana dispensaries that have been vigorously prosecuted and shut down by the City of Toronto and the Toronto Police Service. However, Toronto Police Service, after meeting with organizers, decided not to enforce the law and allowed the illegal site to operate in the interests of public health,” writes Harnett.

As Harnett adds, this is an "appropriate exercise of police discretion."

Ultimately, Harnett writes, recent research suggests that increasing adult access to both medical and recreational cannabis has significant positive impacts on public health and safety as a result of “substitution effect.” Studies have also found that medical cannabis programs are associated with a reduction in the use of opioids and associated morbidity and mortality, he says.

“Given the glacial pace of major legislative reform, sensible and progressive police discretion may be the best way to help those suffering during this opioid crisis. And that discretion should be exercised to allow medical marijuana dispensaries in major cities alongside safe injection sites,” says Harnett.

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