COURT FILE NUMBER 2003 15090

COURT COURT OF QUEEN’S BENCH OF ALBERTA

JUDICIAL CENTRE EDMONTON

PLAINTIFFS TAYLOR ANTHONY MAXEY, AMANDA FRANCES MARIE ERVIN, BYRON BIRD, CAITLYNN WESTGARD, DUSTIN WESLEY ANDERSON, FABIAN POLE, GARY WAYNE FIDDLER, GREGORY LORNE CREOR, KEIGAN TIERNEY, MICHAEL SHANE CARSON, and SHANE PAUL MONETTE

DEFENDANT HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA

DOCUMENT WRITTEN SUBMISSIONS OF THE PLAINTIFFS

ADDRESS FOR SERVICE NANDA & COMPANY AND CONTACT ATTN: Avnish Nanda INFORMATION OF DJ Janjua PARTY FILING THIS Manraj Preet Sidhu (Student-at-Law) DOCUMENT 10007 – 80 Avenue NW Edmonton, AB T6E 1T4 Telephone: 780-916-9860 Facsimile: 587-318-1391 Email: [email protected] File No.: 289.00001

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TABLE OF CONTENTS

PART I: OVERVIEW AND RELIEF SOUGHT 1

PART II: STATEMENT OF FACTS 3

A. Opioid Use Disorder 3

B. The Opioid Overdose Crisis 5

i. The Origins of the Crisis 5

ii. The Crisis in Alberta 6

C. Treatment Options for Opioid Use Disorder 9

D. iOAT 11

E. iOAT Therapy in Alberta 13

F. The Impact of iOAT on Albertans Living with Severe Opioid Use Disorder 17

1. The Plaintiffs 17

i. Taylor Anthony Maxey 17

ii. Amanda Frances Marie Ervin 21

iii. Byron Bird 24

iv. Caitlynn Westgard 27

v. Dustin Wesley Anderson 29

vi. Fabian Pole 31

vii. Gary Wayne Fiddler 34

viii. Gary Lorne Creor 36

ix. Keigan Tierney 39

x. Michael Shane Carson 42

xi. Shane Paul Monette 44

2. The Clinical Staff at iOAT 46

i. Dr. Krishna Balachandra 46

ii. Dr. Susan Bornemisza 48 ii

iii. Patty Wilson 49

G. The Closure of iOAT, Denial of Treatment for Severe Opioid Use Disorder 50

H. The Harms Resulting from the Closure of iOAT 51

1. The Plaintiffs 52

i. Taylor Anthony Maxey 52

ii. Amanda Frances Marie Ervin 53

iii. Byron Bird 53

iv. Caitlynn Westgard 54

v. Dustin Wesley Anderson 55

vi. Fabian Pole 55

vii. Gary Wayne Fiddler 56

viii. Gary Lorne Creor 57

ix. Keigan Tierney 57

x. Michael Shane Carson 58

xi. Shane Paul Monette 59

xii. iOAT Patients Never Informed of End Date 59

2. The Clinical Staff at iOAT 61

i. Dr. Krishna Balachandra 61

ii. Dr. Susan Bornemisza 61

iii. Patty Wilson 63

3. Expert Evidence on the Impacts of iOAT’s Closure 65

i. Dr. Meera Grover 65

ii. Dr. Donald Scott McDonald 66

iii. Dr. Rupinder Brar 68

iv. Dr. Haitham Kharrat 69

v. Dr. Elaine Hyshka 70 iii

vi. Dr. Susan Boyd 71

4. The Evidence of Harm: Consistent, Uncontested, and Overwhelming 73

5. HMQA’s Alternative Proposal to Closing iOAT 74

I. HMQA’s Proposal is not iOAT, Will Impose Harm on iOAT Patients 74

PART III: APPLICABLE LAW AND STATEMENT OF ARGUMENT 76

A. The Test for Injunctive Relief 76

1. The Appropriate Threshold is a Serious Issue to be Tried 76

2. The Plaintiffs Seek a Prohibitive Injunction 78

i. The Plaintiffs Seek an Injunction to Preserve the Status Quo 79

B. The Charter Claims Advanced Raise a Serious Issue to be Tried 79

1. Section 7 of the Charter 80

i. The Anatomy of a Section 7 Charter Claim 80

ii. The Section 7 Charter Claim Advanced 82

2. Section 12 of the Charter 86

i. The Anatomy of a Section 12 Charter Claim 86

ii. The Section 12 Charter Claim Advanced 88

3. Section 15 of the Charter 89

i. The Anatomy of a Section 15 Charter Claim 89

ii. The Section 15 Charter Claim Advanced 90

C. iOAT Patients Will Face Immediate and Serious Harm if the Therapy is Ended 92

D. The Balance of Convenience Strongly Favours Granting an Injunction 93

PART VI: TABLE OF AUTHORITIES 97

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PART I: OVERVIEW AND RELIEF SOUGHT

1. Alberta is in the midst of an unprecedented overdose crisis. Approximately 3 Albertans die each day of an opioid overdose. The surge in opioid overdose deaths is linked to the rise in contaminated street opioids. Most opioid users access opioids through the illicit street market, exposing them to extremely potent and dangerous opioids, fueling the opioid overdose crisis.

2. Opioid use disorder is a chronic medical condition that is characterized by a dependency on opioids and a range of debilitating mental and physical impairments. The inability to access opioids leads individuals with opioid use disorder to suffer withdrawal symptoms, which include chills, insomnia, diarrhea, nausea, vomiting, severe aches and pains, increased heart rate, anxiety, and premature death. For these individuals, the need to consume opioids is not a choice but a mental and physical necessity, compelling them to procure and use street-sourced opioids despite the risks they pose.

3. The Defendant Her Majesty the Queen in Right of Alberta (“HMQA”) presently offers individuals suffering from opioid use disorder a range of treatment options to address the varying levels of severity associated with the condition. For instance, Albertans with the most severe form of opioid use disorder are able to access injectable opioid agonist treatment (“iOAT”). iOAT therapy is reserved for individuals who have failed all other forms of treatment or for whom other forms of treatment are unlikely to be effective. In Edmonton and Calgary, where iOAT is delivered through specialized medical clinics operated by Alberta Health Services, there are approximately 100 patients who access this specialized form of daily treatment.

4. However, in March 2020, HMQA announced the closure of iOAT effective March 2021. The closure of iOAT will occur notwithstanding the fact that there are patients in the program who still require the therapy and for whom there are no other effective treatment options. Further, the closure would occur despite the ongoing need for iOAT in Alberta, as the number of opioid overdose deaths continues to soar and the need for effective treatment options for those with severe opioid use disorder grows. HMQA’s decision to stop iOAT therapy will relegate Albertans with severe opioid use disorder to ineffective treatment options and street-sourced opioid use, significantly increasing their likelihood of overdose death and other harms.

5. As a result of HMQA’s announcement, 11 patients of the iOAT programs in Alberta commenced this action, asserting that the decision to shut down iOAT breached their rights and -2-

the rights of others requiring iOAT therapy in Alberta at sections 7, 12, and 15 of the Charter of Rights and Freedoms.

6. At the same time of commencing this action, the Plaintiffs filed and served upon HMQA an injunction application seeking the following in relief:

a) an Interlocutory Injunction pursuant to section 24(1) of the Charter, the common law, or any statutory authority, prohibiting and restraining the Respondent from denying iOAT to the Plaintiffs, existing iOAT patients, and future iOAT patients until the final determination of this action;

b) an Interlocutory Injunction pursuant to section 24(1) of the Charter, the common law, or any statutory authority, declaring that individuals in iOAT are entitled to receive treatment through the program while this action is being determined;

c) an Order pursuant to section 24(1) of the Charter, the common law, or any statutory authority, directing the Respondent to provide iOAT to individuals enrolled in the program until the final determination of this action. 7. In support of its application, the Plaintiffs tendered 31 affidavits from program participants, medical staff working in Alberta’s iOAT clinics, the public health researchers who helped develop Alberta’s iOAT program, the world’s leading researchers and medical providers of iOAT, and a health care economist who has researched and published on the economic impacts of offering iOAT therapy in Canada. Their evidence is consistent: the closure of iOAT will cause serious, irreparable harm to existing participants and others who may require the therapy, with no net cost savings to the government and society at large.

8. HMQA has tendered no evidence to challenge or contest the evidence set out in the Plaintiffs’ record. Instead, HMQA advances a proposal that confirms that iOAT therapy in Alberta will come to an end in March 2021, but that patients will still be able to access an injectable opioid in a safe clinical setting. HMQA claims that offering hydromorphone in a supervised setting is essentially iOAT therapy, and therefore, this action and injunction application are moot. However, iOAT is a medical treatment regime that is defined by medical guidelines and a number of core features. What HMQA proposes as a resolution to this matter fails to conform with the requirements of iOAT as set out in established medical guidelines for the treatment. For this reason, the treatment proposed by HMQA cannot be characterized by iOAT. On this basis, the Plaintiffs rejected HMQA’s offer and proceed with the injunction application.

9. The manner and consequences of HMQA’s decision to cease iOAT therapy in Alberta, and the extent to which it breaches section 7, 12, and 15 of the Charter, are serious issues to be tried. -3-

Further, allowing HMQA to implement its decision to deny the Plaintiffs and others lifesaving and life sustaining medical treatment while the constitutionality of the decision is being reviewed by this court would impose serious, irreparable harm on the claimants, including premature death. The harm that is likely to be inflicted on individuals who require iOAT therapy if this injunction is not granted far exceeds the potential harm that may be imposed on HMQA in granting this injunction.

10. There is a real possibility that the Plaintiffs or others who require iOAT therapy will die of an opioid overdose or suffer other serious harms if they are denied access to iOAT while this matter is being litigated. As such, an injunction is required to ensure that Albertans with severe opioid use disorder can continue to live and manage their condition through effective medical treatment while the constitutionality of HMQA’s conduct is being reviewed. Otherwise, in many instances, the remedy sought in this action will never be realized if it is granted, as those seeking it will have already succumbed to their illness and become another life lost in the opioid overdose epidemic.

PART II: STATEMENT OF FACTS

A. Opioid Use Disorder

11. Opioid use disorder “is a chronic, relapsing condition estimated to affect more than one million people in North America.”1 Opioid use disorder refers to a dependency and addiction to opioids. Medical guidelines define the disorder as requiring an individual to suffer from 2 or more of the following criteria over a 12-month period:2

a) opioids are taken in larger amounts or over a longer period than was initially intended; b) there is a persistent desire or unsuccessful efforts to cut down or control opioid use; c) a great deal of time is spent in activities necessary to obtain the opioid, use the opioid, or recover from its effects;

d) craving or a strong desire to use opioids; e) recurrent opioid use resulting in a failure to fulfill major role obligations at work, school, or home. f) continued opioid use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of opioids;

1 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020, at ¶7. 2 Affidavit of Haitham Kharrat, sworn September 17, 2020, at ¶12. -4-

g) important social, occupational, or recreational activities are given up or reduced because of opioid use; h) recurrent opioid use in situations in which it is physically hazardous; i) continued use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by opioids;

j) tolerance, as defined by either of the following: 1. need for markedly increased amounts of opioids to achieve intoxication or desired effect. 2. markedly diminished effect with continued use of the same amount of opioid.

k) withdrawal, as manifested by either of the following: 1. characteristic opioid withdrawal syndrome. 2. opioids (or a closely related substance) is taken to relieve or avoid withdrawal symptoms.

12. An individual’s opioid use disorder is measured on a scale of severity:3

a) mild if there are two to three of these symptoms present,

b) moderate if there are four to five symptoms, and

c) severe if an individual is suffering from more than six symptoms.

13. The development of opioid use disorder often follows the same trajectory.4 Individuals may start experimenting with opioids recreationally or misuse prescribed opioids, enjoying the feelings of euphoria experienced through consumption.5 However, they acquire a tolerance to their initial opioid dosage, requiring them to consume a greater amount at each usage to continue to experience the desired effect.6 Simultaneously, a severe withdrawal syndrome develops upon cessation of use, which results in debilitating symptoms, such as chills, insomnia, diarrhea, nausea, vomiting, aches and pains, increased heart rate, anxiety, and even death.7 By the time severe opioid use develops, the pattern has changed to one of compulsive use and a desire to avoid withdrawal.8

3 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶9. 4 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. 5 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. 6 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. 7 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. 8 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. -5-

There is also significant psychosocial dysfunction, a desperate search for opioids, engagement in riskier forms of use, including intravenous, and engagement in criminal activity to obtain opioids.9

14. If left untreated, individuals living with opioid use disorder experience a range of health and social harms, including but not limited to:10

when untreated, the personal risks include fatal overdoses, infections such as endocarditis (spread through your bloodstream and attach to damaged areas in your heart), human immunodeficiency virus (“HIV”) and Hepatitis C, social disintegration, violence and crime. The burdens on communities include medical care, public health and criminal justice costs resulting from public disorder and crimes against property.

B. The Opioid Overdose Crisis

i. The Origins of the Crisis

15. North America is in the midst of a historically unprecedented opioid overdose crisis: 11

Between 2016 and 2018, more than 11,000 Canadians and 136,000 Americans died from an opioid-related overdose. The magnitude of mortality associated with overdose is so severe that it has surpassed that experienced at the height of the HIV/AIDS epidemic, and led to observed declines in life expectancy amongst general populations in both the United States and Canada.

16. Although the sources of the epidemic are complex and varied, there is agreement that the development of synthetic opioids with greater potency, extended-release processes, and long- acting pharmaceutical formulations along, which were marketed as “safe and effective for the treatment of chronic noncancer pain, led to substantial growth in prescription opioid dispensing and diversion, exposing large proportions of the population to opioids for both medical and non- medical use.”12

17. In 2010, more than 1 in 20 adults and as many as 1 in 6 adolescents in Canada reported using prescription opioids for non-medical purposes.13 Increasing consumption of these medications corresponded with growing population prevalence of opioid-related harms, including fatal overdoses.14 In response, beginning around 2012, officials in both the United States and Canada implemented new interventions designed to curb the availability and diversion potential

9 Affidavit of Krishna Balachandra, sworn September 9, 2020, at ¶10. 10 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020, at ¶7. 11 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶8. 12 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶9. 13 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶10. 14 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶10. -6-

of prescription opioids.15 This primarily consisted of new constraints on prescribing and dispensing.

18. However, limiting the ability of individuals with opioid use disorder to access opioids through legal means fueled an illicit market. The pharmacological formulation of street sourced opioids was unregulated, resulting in more potent and toxic concoctions, leading to a dramatic increase in opioid related overdose deaths starting in 2015:16

The dramatic increase in overdose mortality around 2015 is directly attributable to the emergence and proliferation of clandestinely-produced synthetic opioid products. Fentanyl, an opioid more potent than heroin or morphine, is the main chemical amongst a growing number of synthetic opioid analogues in circulation.

Fentanyl and other analogues are manufactured and distributed as counterfeit opioid or benzodiazepine pills; loose powders mixed with various cutting agents (e.g. caffeine); or as adulterants in other illegal drugs such as heroin or cocaine. As a result, in illegal markets where synthetic opioids dominate, it is extremely difficult for people who use drugs to know exactly what substances they are purchasing and consuming.

The sophistication of processing methods, potency, and toxicity of fentanyl and other synthetic opioid products varies widely from batch-to-batch, impeding dose titration, and further compounding overdose risk.

Mortality associated with illegal synthetic opioids has increased by 300% since 2015 in the United States far outpacing deaths from other opioids. Fentanyl is also currently implicated in over 77% of all opioid overdose deaths in Canada, and was detected in 94% of all opioid overdose deaths in Alberta during the first half of 2020…

North America’s current unprecedented synthetic opioid overdose epidemic is best conceptualized as the “evolutionary consequence of prolonged high [prescription opioid] availability and exposure” followed by a gap in supply and persistent demand for opioids at the population level. The illegal market innovated to meet this demand clandestinely- producing and distributing new highly-toxic opioid products which have caused a surge in overdose deaths. Put simply, proliferation of prescription opioids set the kindling for the overdose epidemic, but the introduction of illegal synthetic opioids was the match.

ii. The Crisis in Alberta 19. Since 2014, Alberta has witnessed a rapid increase in opioid overdose related fatalities. Researchers have tracked this the trend from 2011 to 2019:17

15 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶10. 16 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶¶15-18 and ¶24. 17 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶¶13-14. -7-

20. However, the release of opioid overdose death figures from December to June 2020 in Alberta demonstrates that this year will be the deadliest on record for opioid overdose related deaths. In the first 6 months of 2020, 449 Albertans have died of an opioid overdose, with 301 of these deaths occurring from March to June 2020, which tracks with the onset of the COVID-19 public health pandemic.18 From March 2020 onwards, the government’s data establishes that more than 3 Albertans are dying each day of an opioid overdose:19

18 Affidavit of Patty Wilson, sworn October 3, 2020 at ¶10. 19 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶69. -8-

21. In addition, the data establishes that the increase in deaths corresponds with an increasingly toxic street-sourced opioid supply, with the rates of fentanyl and carfentanil-related deaths (synthetic, highly potent opioids) far exceeding all prior records.20

22. For public health experts who research the opioid overdose epidemic in Alberta, there is a correlation between the COVID-19 public health pandemic and an increase in opioid overdose related deaths in the province from toxic, street-sourced of opioids:21

Several Canadian cities, including Edmonton, have recently reported large spikes in overdose coinciding with the onset of the COVID-19 pandemic.

In Alberta, between April 1 and June 30 of 2020, a staggering 301 Albertans died of opioid overdose. This number far exceeds the previous record of 211 deaths in one quarter, and represents a 100% increase over Quarter 1 of 2020 (148 opioid deaths).

This increase in deaths is believed to be at least in part driven by disruptions in illegal drug supply chains (caused by border closures, travel restrictions and other factors).

In British Columbia, these disruptions have led to increased adulteration of drugs in circulation and an increase in the proportion of fatal overdose cases with extreme fentanyl concentrations (>50 micrograms/litre) detected in post-mortem toxicology.

Similar drug market changes are believed to be occurring in Alberta. Over the past three months, there have been eleven separate advisories issued by Health Canada’s Drug Analysis Lab warning about the appearance of new synthetic opioids and other potentially dangerous novel substances in circulation in the province. In this context, iOAT patients

20 Affidavit of Patty Wilson, sworn October 3, 2020 at ¶10. 21 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶68-72. -9-

who return to illegal opioid use and others living with severe opioid use disorder are at extreme risk of harm.

23. There has never been a deadlier time to use street-sourced opioids in Alberta’s history.22

C. Treatment Options for Opioid Use Disorder

24. Opioid use disorder is a manageable condition. There are a variety of options to stabilize and treat individuals living with opioid use disorder. Treatment options range from “abstaining of all street drugs (with or without medications to support it) or opioid agonist treatment (“OAT”), with or without concomitant psychosocial support or psychiatric therapy.”23

25. The appropriateness of a treatment option is dependent on the severity of one’s opioid use disorder.24 For instance, while abstinence may be an effective treatment option for individuals suffering from mild opioid use disorder, it will not be effective for individuals with severe opioid used disorder. As such, treatment options must reflect the severity and specific factors of an individual’s opioid use disorder.

26. If treatment options do not align with anany individual’s severity of opioid use disorder, they are likely to experience withdrawal syndrome and return to street opioid use.25 Withdrawal symptoms consist of intense cravings generated by physiological and physical dependence on opioids. Patients receiving ineffective treatment are compelled to revert back to consuming street- sourced opioids, fully aware of the risks they will be exposed to if they do, because the cravings and withdrawal symptoms are too powerful to overcome. However, effective treatment options for opioid use disorder allows patients to address their cravings, ridding themselves of the compulsions they have to use street-sourced opioids. As such, the availability of effective treatment options based on the severity of an individual’s condition is critical to deterring them from consuming street opioids.

27. Medical studies on effective treatment options for opioid use disorder have established that “overall abstinence-based therapies for severe opioid use disorder have shown low effectiveness, with less than a 30% response rate after one year.”26 In these scenarios, more participants than not

22 Affidavit of Patty Wilson, sworn October 3, 2020 at ¶10. 23 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶8. 24 Affidavit of Haitham Kharrat, sworn September 17, 2020 at ¶18. 25 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶¶7-31. 26 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶9. -10-

are returning to street-based opioids to self-medicate their condition rather than remaining in abstinence-based programs that do not effectively address their needs.27

28. In 2018, a Canadian medical guideline on the management of opioid use disorder was published (“CRISM National Guidelines”). The CRISM National Guidelines advise against an abstinence only treatment regime for opioid use disorder because the:28

abrupt discontinuation of opioid consumption amongst people with opioid use disorder can produce debilitating withdrawal symptoms. Even if these symptoms are managed and abstinence from opioids is attained, without sustained engagement in effective long-term treatment an estimated 88% of people with moderate to severe opioid use disorder will relapse within the first six months. Risk of overdose death is significant when relapse occurs, because periods of abstinence lead to a loss of tolerance to opioids. As a result, withdrawal management alone (short term medical support to achieve abstinence from opioids) is not considered effective nor safe for patients with opioid use disorder. 29. Instead, the CRISM National Guidelines recommend medications as “first line therapy.”29 Medications to treat opioid use disorder are generally classified as agonists, as they are opioids and serve the same physiological function as opioids that are abused.30 However, they differ in the long-term duration of effect, which allows the person to avoid withdrawal symptoms, overdose deaths, and rehabilitate other aspects of their lives.31

30. The specific agonist medications set out under the CRISM National Guidelines for opioid use disorder include buprenorphine as first line medication, methadone as second line medication, and slow-release oral morphine as third line medication.32 These are all opioid-based medications. However, there are many patients who are unable to effectively manage their opioid use disorder through abstinence only treatment, buprenorphine, methadone, or slow-release oral morphine.33 For these patients, who are considered to suffer from the most severe form of opioid use disorder, there remains a final treatment option: injectable opioid agonist treatment (“iOAT”).

27 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶¶7-31. 28 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶22. 29 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶12-13. 30 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶12-13. 31 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶12-13. 32 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶12-13. 33 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶12-13. -11-

D. iOAT

31. iOAT is an intensive medical treatment option that is restricted to individuals with the most severe forms of opioid use disorder.34 The CRISM National Guidelines for opioid use disorder limits access to the therapy to those individuals who have failed all other treatment options or for whom alternative treatment options are unlikely to be successful.35 It is the last available treatment option for individuals suffering from opioid use disorder.

32. iOAT is a form of opioid agonist treatment. Opioid agonist treatment can include medication that is consumed in either oral or injectable form.36 iOAT refers to opioid agonist treatments that consist of injectable medications.

33. For a treatment option to be considered iOAT therapy, it must adhere to the requirements set out in the CRISM National Guidelines. The requirements of iOAT therapy are as follows:37

a) 7 day a week access for up to 3 doses of intravenous (“IV”) hydromorphone a day; b) 7 day a week access to a prescriber experienced in iOAT; c) an open-ended treatment date (i.e. no set end date); d) co-location or access to primary care through the iOAT provider; and e) the ability of patients to move between oral agonist treatment and iOAT. 34. In iOAT, patients are provided a dosage of opioids (diacetylmorphine or hydromorphone) that is enough to satisfy their cravings but also allows them to be fully functional. The focus is on stabilizing an individual’s opioid use disorder with the aim of allowing them to live full and functional lives, including having relationships with family and friends, working or studying, and addressing their broader health and social needs. Once an individual’s opioid use disorder is stabilized, then the individual and their medical and social support team can determine how best manage or overcome their opioid dependency. For some, that may involve ceasing all opioid use, while for others, it may mean managing their opioid dependency in a safe manner for the long- term.

34 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶51-59. 35 Affidavit of Haitham Kharrat, sworn September 17, 2020 at ¶¶12-24. 36 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶¶17-18. 37 Affidavit of Patty Wilson, sworn November 20, 2020 at ¶6. -12-

35. iOAT has been available in Europe for many years and has been used to treat patients in British Columbia since 2005.38 iOAT has also been subject to considerable academic research and study regarding its effectiveness to stabilize and treat patients with severe opioid use disorder in the Canadian context.39 Successive studies have found that:40

a) participants in iOAT have higher rates of treatment retention compared to those on other forms of opioid use disorder treatment, report reduced drug cravings, and achieve significant reductions or complete cessation of illegal drug use;

b) participants in iOAT experienced significant and sustained improvements in physical, mental, and psychosocial health, including fewer drug-related risk behaviours (such as injecting with non-sterile syringes), engaging in health and social services such as HIV and Hepatitis C treatment, and improvements in self-care;

c) iOAT reduces premature mortality, blood borne infections, medical complications associated with overdose, violence, and arrest among participants;

d) participants in iOAT report enhanced interpersonal and social functioning, including: reduced participation in illegal activity; renewed relationships with family members and friends; improved financial stability; housing acquisition and maintenance; and for some, legal employment;

e) participation in iOAT is associated with reduced rates of incarceration and imprisonment; decreased participation in property crime; and decreased possession and trafficking of illegal drugs; and

f) participant in iOAT, both men and women, also report reduced participation in sex work while engaged in treatment, due in part to the reduced need to seek money to purchase illegal drugs.

36. iOAT is part of the continuum care for individuals suffering from opioid use disorder and is “effective at attracting and retaining people into treatment,” specifically those living with the most severe form opioid use disorder.41 This is critical because this is a sub-population of individuals living with opioid use disorder who have failed all other forms of treatment for their condition. While oral opioid agonist treatment is highly effective for reducing all-cause mortality

38 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶19. 39 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶¶7-31. 40 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶51-59. 41 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020 at ¶18. -13-

associated with opioid use disorder, oral medication is not an appropriate treatment option for this sub-population:42

oral opioid agonist treatment is less likely to be effective for patients with severe opioid use disorder who inject opioids. This is problematic because this population is at a higher risk of experiencing overdose death, other health harms, and structural vulnerability (e.g. poverty, homelessness, and/or unstable housing) relative to those with less severe opioid use disorder. 37. The CRISM National Guidelines identifies iOAT as the only form of effective treatment for this sub-populations of individuals suffering from severe opioid use disorder: “for this population of patients, iOAT is a necessary and life-saving treatment that cannot be replaced with any other form of treatment.”43 Without access to iOAT, this sub-population is forced to self- medicate their condition through street opioids and expose themselves to the range of health and social harms associated with street-sourced opioids.

E. iOAT Therapy in Alberta

38. In 2017, after a significant rise in opioid related overdose deaths in Alberta, HMQA declared a public health emergency regarding “the unprecedented rise in opioid morbidity and mortality.”44 HMQA enacted the Opioid Emergency Response Regulation (“Regulation”)45 under the Public Health Act.46 Section 3 of Regulation established the Minister’s Opioid Emergency Response Commission (“MOERC”), which had the mandate to “develop recommendations for, and facilitate or monitor the implementation of, as the case may be, urgent coordinated actions to effectively combat the opioid crisis.”47

39. A Ministerial Order was issued in relation to MOERC, establishing its terms of references and composition.48 HMQA appointed leading public health experts and representatives from a variety of stakeholders in Alberta concerned with opioid use disorder and increasing mortality

42 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶46. 43 Affidavit of Meera Grover, September 23, 2020, at ¶15. 44 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶28. 45 Alta Reg 99/2017. 46 RSA 2000, c P-37. 47 Opioid Emergency Response Regulation, Alta Reg 99/2017, s. 3 and 4(2), Book of Authorities of the Plaintiffs, (“Plaintiffs’ Authorities”), Tab 1. 48 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶30. -14-

rates.49 The co-chairs of MOERC were Dr. Elaine Hyshka and Alberta’s Chief Medical Officer (initially Dr. Karen Grimsrud, and then Dr. Deena Hinshaw).50

40. Section 4(3) of the Regulation directed MOERC to:51

a) obtain the best information and evidence available respecting opioid use and responses to the opioid crisis, including, without limitation, information and evidence obtained through consultation with stakeholders; b) make recommendations to the Minister for timely coordinated actions to address opioid use and related issues, including, without limitation, actions in the following strategic areas: 1. harm reduction initiatives; 2. treatment; 3. prevention; 4. enforcement and supply control; 5. collaboration; 6. surveillance and analytics. 41. In addition, MOERC was required to create and submit a proposed plan and budget for implementing recommended actions to HMQA, including to monitor the implementation, expenditures, and outcomes of its recommendations and consider possible additional actions on an ongoing basis.52

42. MOERC was also directed that its recommendations “must be based on expert guidance from multiple stakeholders,” including “officials in a range of government ministries (e.g. Health, Justice and Solicitor General, Indigenous Relations), key agencies (i.e. Alberta Health Services), community service-delivery organizations, first responders, municipalities, First Nations and other indigenous groups, health professions regulators, the Alberta Medical Association and Alberta College of Family Physicians, Health Canada, and people who use drugs and their families, among

49 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶30. 50 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶30. 51 Opioid Emergency Response Regulation, Alta Reg 99/2017, s. 4(3), Plaintiffs’ Authorities, Tab 1. 52 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶32. -15-

other stakeholders.”53 This requirement was imposed to ensure that MOERC’s recommendations allowed HMQA to make “timely and well-informed decisions.”54

43. MOERC was initially constituted for a one-year term, but its mandate was extended on May 29, 2018 for an additional year ending on November 29, 2019.55

44. Over the course of its term, MOERC made 32 recommendations “for urgent actions to address Alberta’s opioid overdose epidemic.”56 HMQA accepted all the recommendations made by MOERC.57

45. A number of recommendations made by MOERC focused on ensuring Albertans living with opioid use disorder were able to access the type of treatment required to effectively manage their condition based on its severity, including introducing and expanding the availability injectable opioid agonist treatment in Alberta:58

With access to effective treatment and follow-up care, many people are able to achieve sustained remission from opioid use disorder and avoid fatal overdose or other serious complications associated with relapse. Accordingly, a significant proportion of MOERC’s recommendations focused on strategies to increase the number of Albertans with opioid use disorder actively engaged in treatment…

In Canada, opioid agonist treatment (e.g. provision of oral medications including buprenorphine/naloxone or methadone) is considered the standard of care for opioid use disorder.

A large body of scientific evidence demonstrates that opioid agonist treatment “is significantly more effective than non-pharmacological treatments in retaining individuals in treatment and suppressing [illegal] opioid use”. Further, these medications reduce overdose mortality by 3-4 fold; halve incidences of HIV and HCV; double HIV treatment retention; and are associated with reductions in drug-related crime. Economic studies have found that provision of oral opioid agonist treatment is less costly and more beneficial than restricting access to these medications, or not treating opioid use disorder at all.

However, access to opioid agonist treatment has been historically inconsistent and highly variable in Canada primarily due to long-standing bias amongst many physicians, members of the public, and decision makers who negate the important role these medications play in supporting recovery and reducing a host of opioid-related harms…

Albertans have historically had limited access to opioid agonist treatment relative to Canadians in other provinces. At the onset of the current provincial overdose epidemic, most opioid agonist treatment was centralized in urban centres, particularly in Edmonton

53 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶33. 54 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶34. 55 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶35. 56 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶35. 57 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶35. 58 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶37-40 and ¶48. -16-

and Calgary, where AHS operates two long-standing provincially-funded opioid dependency programs. These AHS clinics were supplemented by fee-for-service, office based opioid agonist specialty practices in some cities, and on rare occasions by prescribers in primary care.

A 2017 overview of opioid agonist treatment across the provinces published in the Canadian Journal of Psychiatry ranked Alberta behind all other provinces except Manitoba and Quebec in terms of the per capita rate of patients being prescribed these medications…

A range of substance use disorder interventions tailored to patient severity are required to effectively meet needs across the population. In the context of opioid use disorder this should include: (1) universal prevention programs targeted at the general public; (2) early intervention and self-management functions targeted to people at risk of developing opioid use disorder; (3) treatment planning, crisis intervention, and other support for people diagnosed with opioid use disorder; (4) specialized care (e.g. oral opioid agonist treatment) for people with moderate opioid use disorder; (5) highly specialized, intensive care for people with severe opioid use disorder who may also be experiencing other complex health problems (e.g. injectable opioid agonist treatment).

46. As such, MOERC’s recommendation to HMQA placed opioid agonist treatment “as a key strategy to reduce risk of death and improve health outcomes for Albertans living with opioid use disorder.”59 MOERC made the following recommendations regarding the implementation of opioid agonist treatment in Alberta:60

Recommendation #5: use available financial resources to expand the number of opioid agonist treatment spaces instead of implementing universal drug coverage for people accessing methadone or buprenorphine/naloxone…

Recommendation #8: support Alberta’s primary care networks to train family physicians to engage patients in opioid agonist treatment;

Recommendation #10: increase capacity for opioid agonist treatment initiation in hospital emergency departments;

Recommendation #12: support Calgary’s Punjabi Community Health Services to provide culturally safe opioid use disorder programming;

Recommendation #15: support Health Canada’s proposal to ease restrictions on methadone prescribing;

Recommendation #31: support improved training and resources on evidence-based treatments for opioid use disorder for judges and prosecutors in Alberta;

Recommendation #32: work with the Ministry of Justice and Solicitor General to improve access to opioid agonist treatment in Alberta’s correctional facilities and for inmates post- discharge.

59 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶43. 60 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶43. -17-

47. However, MOERC went further and specifically recommended the adoption of injectable opioid agonist treatment for Albertans suffering from severe opioid use disorder:61

Recommendation #9: support the proposal and funding request from AHS for a phased implementation of a supervised injectable opioid agonist therapy program in Edmonton and Calgary.

48. HMQA accepted the recommendations MOERC set out above, including establishing a supervised injectable opioid agonist therapy program in Alberta.62 A dedicated iOAT clinic was opened in Calgary in 2018 and a similar dedicated iOAT facility commenced operations in Edmonton in 2019.63

F. The Impact of iOAT on Albertans Living with Severe Opioid Use Disorder

1. The Plaintiffs

49. Eleven participants of the iOAT program in Edmonton and Calgary commenced this action, and seek interim and final relief on behalf of all individuals requiring iOAT therapy to manage their severe opioid use disorder. This includes existing and prospective iOAT patients in Alberta.

50. In their affidavits, each iOAT participant provided evidence of the significant, life-saving impact iOAT has had on their lives.

i. Taylor Anthony Maxey 51. The Plaintiff Taylor Antony Maxey (“Maxey”) is 31 years old and lives with severe opioid use disorder:64

I was born on June 25, 1989.

I suffer from chronic opioid use disorder, a recognized medical condition that refers to dependence and addiction to opioids, including issues around opioid tolerance, withdrawal, and other aspects associated with opioid use and dependency.

I am a patient of the Injectable Opioid Agonist Therapy Program offered by Alberta Health Services in Calgary to those like me who suffer from chronic opioid use disorder. 52. Maxey had a difficult, trauma filled childhood. After a sports injury, he was prescribed fentanyl to manage his pain and subsequently developed opioid use disorder:65

61 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶49. 62 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶50. 63 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶4. 64 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶1-5. 65 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶6-18. -18-

My father was physically and mentally abusive. He had a cruelness in him that seemed to animate him. He would lash out and try to break us if he thought we were challenging his authority. There was nothing anyone could do to stop him when he got angry.

I remember one incident when I was about 10 years old. I was fighting with my brother who was 8 years old at the time. We were just playing around, but my father got upset. He told us to stop. We did not, so my father decided to teach us a lesson.

My father went out and purchased boxing gloves, and came back home. He made my brother and I put them on, and led us to the backyard. My father then forced my brother and I to fight until one of us couldn't fight anymore.

I remember beating my brother until he was bleeding and couldn't stand back up. We both were crying, and I felt so much shame and pain from seeing what I was doing to my brother…

I developed significant mental health issues as a child... I had Attention Deficit Disorder ("ADD"), Attention Deficit Hyperactivity Disorder ("ADHD"), social anxiety, and trust, intimacy, and self-esteem issues.

At the age of 12, I was sexually abused by an educational aide. The abuse went on for some time. The experience had a major impact on my life. It changed me completely. I became angry and frustrated because I felt trapped. I felt like I couldn't share what happened to me to others. I felt violated. I felt a great degree of shame. I didn't know how to deal with it. The experience left me fearful of others and I tried to keep to myself. It worsened my social anxiety and other mental health conditions.

My siblings and I were put in sports at an early age and it was instilled in us that competition brings the best out of people and that we should strive for perfection. I started swimming and excelled in the pool. I started winning competitions and swim meets, and began to be ranked among the top swimmers for my age and stroke style in the world…

I suffered a major injury when I was 17 or 18. I chipped a vertebrae in my neck…. The doctors who I saw prescribed me a number of painkillers to help me deal with my pain, including fentanyl.

When I took fentanyl and the other opioids, my pain went away immediately. Not just my physical pain, but the mental pain I had accumulated over the years. Opioids provided me instant release. I forgot about everything on my mind.

From that period on, opioids became a fixture in my life. They became something I turned to whenever I faced challenges, and in the process, developed a dependency on opioids. 53. At first, Maxey was able to obtain opioids legally from his doctor. But, as time went on, he was forced to buy opioids from drug dealers to support his habit.66

66 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶19. -19-

54. Things spiraled out of control for Maxey as his opioid use disorder intensified.67 Maxey lost control of his life, felt “lost and damaged,” and “developed suicidal ideation,” trying to kill himself multiple times.68

55. After discovering Maxey’s medical condition, his parents were embarrassed and disowned him. Maxey’s mother informed Maxey that he could no longer live with her and dropped him off at the Calgary Drop-In Centre, a homeless shelter in the city.69

56. There, Maxey witnessed what life is like for people on the streets with opioid use disorder:70

Living at the Calgary Drop-In Centre was among the scariest experiences of my entire life. I saw people injecting and using all sorts of drugs on a regular basis. I saw someone get their throat slit for sleeping in a bunk that someone claimed as their own. I saw terrible things at the Calgary Drop-In Centre that will haunt me for life.

I learned quickly that life on the streets is violent and deadly. It is a jungle on the streets, full of danger and uncertainty. I have been assaulted and robbed too many times to count. I have been forced to sleep outside in extremely cold temperature. I have been in all sorts of dangerous and risky situations where I could have died. After a decade on the streets, I am lucky to be alive. I wouldn't wish for my worst enemy to end up on the street.

Life on the streets is even worse when you have an opioid dependency. You spend all your time trying to find ways to buy and use drugs. That was my singular focus when I was on the streets. 57. While on the streets, Maxey’s life revolved around a singular focus: finding and consuming opioids:71

Each day, I would wake up in intense pain. Aches all over, a splitting headache, and feelings of vomiting. These were withdrawal symptoms. I would venture out and try to find a way to buy and use opioids. Only after consuming opioids would my symptoms disappear. The pain would go away until the effects of the opioids wore off. After they did, my opioid withdrawal symptoms would flare up again. I would need to find more opioids. The pain would then go away and re-emerge later on, requiring additional opioids. It was a vicious cycle, where I would consume opioids multiple times a day.

58. Maxey initially panhandled to support his opioid habit, but later resorted to property crime such as shoplifting at the behest of drug dealers.72

67 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶20. 68 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶20. 69 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶20-21. 70 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶23-25. 71 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶26. 72 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶27. -20-

59. Maxey tried a variety of treatment programs but failed them all:73

I knew I had a problem and sought help numerous times. I tried abstinence, suboxone, and methadone. The problem was that I developed a significant tolerance to opioids. The opioids I need on a daily basis are enough to kill other people. For some reason, my body requires a high dosage of opioids for my cravings to be satisfied. If I use a lower amount, I develop serious withdrawal symptoms.

60. The primary reason that Maxey’s attempts to manage his opioid use disorder through these treatments were unsuccessful is because Maxey’s opioid tolerance is abnormally high.74 Prior to being on iOAT, Maxey’s had a $900.00 a day opioid habit.75 Maxey would consume that could kill other individuals.76 However, this means that Maxey’s cravings are intense and he requires agonist medication at levels that he cannot access through oral opioids.

61. Prior to joining iOAT, Maxey was in a difficult place in his life. Maxey had witnessed a number of his friends on the streets die of opioid overdose deaths before his eyes, and had tried to kill himself numerous times to no longer live the life he did as homeless person suffering from severe opioid use disorder.77 Maxey had lost all hope of stabilizing and overcoming his illness.

62. However, Maxey’s life changed when he entered the iOAT program:78

I was a bit reluctant at first but decided to try iOAT. I started on the program in October 2018. It took a while to determine my stable dosage, which is essentially the amount I need to satisfy my withdrawal symptoms and still remain functional. iOAT determined that I needed 400 mgs of hydromorphone 2 to 3 times a day to stabilize my opioid use disorder. For most other iOAT patients, they are taking 60 to 90 mgs of hydromorphone 2 or 3 times a day. Doctors and researchers come to the iOAT clinic in Calgary from all over the world to see and speak with me. The staff have told me that I have an unusually high tolerance for opioids.

iOAT changed my life. I started noticing the positive impacts immediately. It has allowed me to escape the vicious cycle of street drug use. It helped me overcome the desperation and dangers of opioid drug use on the streets. I am no longer concerned about using street drugs and overdosing or being killed over drugs.

A weight has lifted from my shoulders. For the first time in my life, I not only have an interest in sobriety but I see a path to achieve it. I am focused on building a safe and stable life where I can address my health issues. Not just my opioid use disorder but also addressing the reasons that allowed my opioid use disorder to develop.

73 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶28. 74 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶28-29. 75 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶29. 76 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶28-29. 77 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶30. 78 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶34-41. -21-

iOAT filled an empty space in my heart and soul. It has given me a reason to live. It has provided me a future. I am living the best version of myself, and I owe it to iOAT and how it has helped to stabilize my opioid use disorder.

I have gained weight on iOAT and am healthier. I was approximately 140 pounds on iOAT but now weigh 175 pounds. I am eating regularly and healthier.

I am also addressing my mental health issues. I am tackling my depression and anxiety. My self-esteem is improving significantly. I have confidence back and am looking forward to what my life could be. I feel like I lost a lot of time over the past decade.

I am off the streets and in stable housing. I am starting to make friendships and build a stable and emotionally connected community. I have started to date and am looking for a life partner that will care and support me. I want to start building deep, personal, and emotional connections with other people, which is something I am afraid of doing because of my past. I want to love and be loved.

I have goals now. I want to be an outreach worker who helps kids who are on the streets and are experiencing opioid use disorder. I want to inspire them and show them that there is hope for a better future. I want to show them how I made it off of the streets and stabilized my opioid use disorder. 63. In the words of Maxey: “iOAT has given me a new lease on life and I don't want to lose it.”79

ii. Amanda Frances Marie Ervin 64. The Plaintiff Amanda Frances Marie Ervin (“Ervin”) lives with severe opioid use disorder and receives treatment at the Calgary iOAT clinic.80 Ervin is 32 years old.81

65. As a child, Ervin was “bullied relentlessly as a child, picked on and tormented by other children in school.”82 Between the ages of 6 and 8, Ervin was sexually abused, resulting in trauma and shame that has continued to this day.83

66. After the sexual abuse, Ervin tried to kill herself for the first time.84 Ervin was 8 years old and attempted to kill herself by jumping off of a bridge.

79 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶42. 80 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶1-5. 81 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶2. 82 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶7. 83 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶7-11. 84 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶11. -22-

67. Ervin was abandoned by her parents at the age of 9 and sent to live at a group home.85 Ervin started using alcohol and hard drugs, including opioids, and was in and out of juvenile correctional centres.86

68. Ervin, barely in her teens, started living on the streets, doing whatever she needed to survive.87 Ervin’s opioid use dependency developed further during this time.

69. At the age of 15, Ervin moved to Alberta, living first in Edmonton and Fort McMurray and then on the streets in Calgary.88 There, Ervin’s drug dependency “increased dramatically,” particularly the consumption of injectable opioids such as fentanyl.89

70. While on the streets, Ervin’s main goal, the one that drove her thoughts and actions day to day, moment by moment, was finding and consuming opioids:90

While on the streets in Calgary, my main focus was on finding a way to get and use drugs. That is all I cared about. That was my sole aim… Every day, I would wake up the most excruciating pain. Both emotional and physical. All I could think about is getting rid of that pain by using opioids and other drugs.

71. Ervin committed crimes to fund her opioid habit, and frequently consumed opioids that were toxic and in an unsafe manner.91 Ervin contracted Hepatitis C, developed a spinal cord infection from street drug use that caused her limited mobility, and overdosed a number of times and almost died.92

72. As a teenaged girl on the streets with opioid use disorder, Ervin was routinely sexually assaulted and exploited and subject to other forms of violence – a common occurrence for girls and women who are homeless and suffer from the condition:93

Being on the street as a teenage woman is extremely difficult. I have been sexually exploited and assaulted. I have been robbed and beaten. Every day was terrible. Every day could have been my last. Life on the streets was hell.

85 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶12. 86 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶12-13. 87 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶14. 88 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶16-17. 89 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶17. 90 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶17-19. 91 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶19-27. 92 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶19-27. 93 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶15. -23-

73. According to Ervin, no one seemed to care about street drug users. People considered them less than human and did not care if they lived or died. Ervin describes one particular incident in her affidavit that demonstrated this to her:94

One day, I was kidnaped and brutally raped in Calgary for 3 days. When I made it free, I ran to get help at an A&W I saw near me, and asked to use its washroom to clean the blood and stool dripping down my leg. I was hurt bad and in shock. The employees of the restaurant looked at me in disgust and refused me access. The rape and torture nearly killed me, but the way I was treated by the employees of the restaurant made me feel like my life had no meaning.

74. Another time, Ervin had blacked out in front of people she had purchased drugs from and woke up rolled up in a carpet in the dump, left to die.95

75. Ervin has tried to kill herself numerous times because of her sense of self, informed by life on the streets with opioid use disorder and how others treated her:96

I felt so small and worthless by these incidents. That no one cared if I lived or died. I did not care if I lived and died, and attempted suicide a number of times while living on the street. Drug use ruins you, and having opioid use disorder ruined my life. I wish I could stop using drugs immediately. But, I cannot do that. Using drugs is not a choice for me. It stopped being a choice for me a long time ago. My body and mind need it. There is far too much pain and sickness when I am not using opioids.

76. Ervin tried a variety of other treatment options to manage and overcome her opioid use disorder but nothing worked.

77. However, things changed for Ervin when she started accessing iOAT therapy:97

I was referred to and accepted into the iOAT program in November 2018.

I walked through the iOAT Calgary Clinic a broken person. I had no self-worth and self- esteem. I was dead inside, and so angry at the world. I didn't care if I lived any longer. I was hoping for death. I wanted release from all the hurt and suffering.

iOAT changed my life. It has given me hope. It has shown me that my life has value. It has given me a purpose. It has shown me that I am more than my opioid use disorder. It makes me want to live longer.

78. iOAT saved Ervin’s life (emphasis added):98

94 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶25. 95 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶26. 96 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶28-29. 97 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶30-32. 98 Affidavit of Amanda Frances Marie Ervin, sworn August 8, 2020 at ¶¶32-39. -24-

iOAT changed my life. It has given me hope. It has shown me that my life has value. It has given me a purpose. It has shown me that I am more than my opioid use disorder. It makes me want to live longer.

Since being on iOAT, I have cut my street opioid use. I have gained weight on iOAT, and am much more healthier.

While being on iOAT, I was able to find a stable dose of injectable hydromorphone, and now I have been able to reduce that dose because I am less reliant on opioids. I have also found housing, and am no longer subject to the violence of the street. I am no longer sexually assaulted and exploited. I am not beaten up or robbed. I feel safe and secure.

Before, when I was on the street, I would wake up every day and just do whatever I needed to do to get drugs. I did not think about anything beyond getting my next fix.

For the first ever, I can see a future for myself. A future where I do not use drugs. A future where I can live safely without fear of dying of an overdose, contracting a disease, or being killed or harmed by others on the street. I have plans for my life that extends beyond the next time I use drugs.

I am certain that I would not be alive today if I was not on the iOAT program.

iii. Byron Bird 79. The Plaintiff Byron Bird (“Bird”) is a 52 year old Cree man who receives iOAT treatment in Calgary.99

80. Bird is a survivor of the Sixties Scoop, where the state apprehended Indigenous children from their parents and community, placing them with white families, losing access to their family, heritage, and communities:100

The government taking me and placing me with a white family was part of the Sixties Scoop, where Indigenous children were taken from their families and placed with white families who the government believed were better able to raise us. I was raised white. I had no sense of my Indigenous history or culture. I don't know if the goal was to prevent me from having a strong tie to my culture and identity as an Indigenous person, but that was the effect of my apprehension and placement with a white family.

81. Bird faced a lot of discrimination and racism as a child, growing up in spaces where there were not many Indigenous people:101

I was the only Indigenous person in my school, and started hating myself for being Indigenous. I was picked on all the time for being Indigenous. People would make fun of me for being Indigenous, whisper and say things. I was made to feel like I was inferior because of my Indigenous heritage. It made me hate my own kind. It made me angry. I responded with my fists and would get into fights anytime anyone would say anything to

99 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶1-5. 100 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶9-11. 101 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶12-13. -25-

me. My adopted family treated me very bad. They treated me like someone who didn't belong. I never felt like a member of the family.

82. Bird was abused by his adopted family, and at the age of 12, started consuming alcohol and drugs:102

My adopted parents were mentally and physically abusive towards me. They beat me all the time and ridiculed me at every turn. I did not feel safe at home. I did not feel safe at school. There was nowhere that I could tum. I was exposed to drugs and alcohol at a very young age. I started doing cocaine at the age of 12. I used drugs as an escape. I didn't like myself or my life, and when I was on cocaine, I forgot how much I hated things. 83. By the age of 18, Bird had a serious opioid dependency habit. Bird was living on the streets of Edmonton, injecting opioids daily, and selling drugs to support his drug habit.103

84. For a period of 9 years, Bird abstained from any opioid use. However, after an injury, Bird was prescribed opioid-based pain killers, causing his opioid use disorder to return:104

I was then struck in a hit and run, and was severely injured. I was in the hospital and was prescribed pain killers to manage my pain. My dependency to opioids redeveloped during this period of time. The opioids provided me a sense of relief, and my body just wanted more. When I was cut off from my doctor, I went to the streets and bought opioids to use. I started injecting again and returned back to the streets. I was living that dangerous life that I had managed to escape. I went from not injecting opioids for nearly 9 years to injecting opioids multiple times a day, every day. 85. Eventually, Bird started consuming street sourced opioids and returned to the streets and crime to support his substance use.105 Bird’s life deteriorated as a result, and he overdosed numerous times and witnessed the overdose death of many of his friends:106

I would use fentanyl. It was easy to find on the streets in Calgary and gave me a quick, powerful high. It made me forget my problems and my body craved it. If I didn't consume opioids, I would develop serious withdrawal symptoms. I felt so bad, like I was dying. I needed to take opioids to keep the sickness away. However, street drugs, especially fentanyl, are dangerous. It is impossible to know if what you are using is safe. Things became more dangerous as time went on, as the drug supply became increasingly risky.

I overdosed more times than I can count. After I came back from nearly dying, I went back to injecting fentanyl. My dependency and cravings were so strong. I knew that each use could be my last but there was nothing I could do. I had to get opioids into my system.

I lost nearly all my friends due to opioid overdoses. Fay Fay was one of my good friends. I remember the day she died, and it left a hole in my heart that I haven't been able to mend.

102 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶14-15. 103 Affidavit of Byron Bird, sworn August 25, 2020 at ¶16. 104 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶19-20. 105 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶21. 106 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶21-25. -26-

The week she died, I had 5 more friends die. I am not the person I was before after seeing so many of my friend die of opioid overdoses.

I am basically the last one left. I have seen them die in front of me. It hurts me so much to think about them and not having them with me. It is still too hard to process. I can't think about it to for too long. I just know that I am one of the oldest people around on the streets of Calgary who uses opioids.

86. Bird considers opioids to be a “vile” and “dangerous” thing that destroys lives and communities.107 However, Bird cannot stop using opioids.108 Bird tried to stop using opioids numerous times, attempting a variety of treatment options.109 But, Bird failed each treatment option he attempted.110 The hold opioids had over him was difficult to manage and overcome.

87. However, Bird’s circumstances changed after beginning iOAT therapy:111

iOAT saved my life. After getting on iOAT, I stopped using and selling drugs after 3 weeks. I have a new lease on life. I am in control of my life. I am no longer a victim of the chase or of the constant need for a fentanyl fix. 88. Bird has experienced a variety of health and social benefits that he never thought possible before iOAT, including losing the fear of dying of an overdose death, avoiding the violence of the streets, gaining weight and living a healthier lifestyle, and finding stable housing:112

I no longer have the fear of overdosing and dying on the streets. Or, someone coming up to me to rob or assault me over drugs. I am living a much different life than I did before joining iOAT. I have a will to live now that I never had before. I have gained weight on iOAT and have never been this healthy. I went from 165 pounds to 180 pounds. I eat regularly, and eat healthy food. I am addressing other aspects of my health. When you are on the streets chasing opioids you don't have the attention or time to address your broader health. Your focus is just finding and using opioids. But, through iOAT, I can now focus on my broader health and am working to ensure I am healthy. I have a house after more than 8 years. I am off the streets. I managed to find housing after stabilizing my opioid use disorder through iOAT. Without iOAT, there is no way that I would have been able to find and secure stable housing.

89. For the first time in a long-time, Bird has a future; he has personal goals and finds larger meaning in his life. However, it has only been made possible through iOAT:113

I have a future now. I have goals, the main one being that I want to stop using opioids entirely. I am already on my way to sobriety. Since being on iOAT, I have decreased my

107 Affidavit of Byron Bird, sworn August 25, 2020 at ¶26. 108 Affidavit of Byron Bird, sworn August 25, 2020 at ¶26. 109 Affidavit of Byron Bird, sworn August 25, 2020 at ¶27. 110 Affidavit of Byron Bird, sworn August 25, 2020 at ¶27. 111 Affidavit of Byron Bird, sworn August 25, 2020 at ¶28. 112 Affidavit of Byron Bird, sworn August 25, 2020 at ¶29. 113 Affidavit of Byron Bird, sworn August 25, 2020 at ¶32. -27-

daily intake. The plan is to manage my pain and withdrawal symptoms each day, and gradually reach a point where I no longer need opioids to treat my condition. It is about pursuing recovery in a sustainable and healthy manner.

iv. Caitlynn Westgard 90. The Plaintiff Caitlynn Westgard (“Westgard”) was born in 1988 and receives iOAT therapy in Calgary.114

91. Westgard was born in Calgary and raised in Hanna, Alberta.115 As a child, after feeling she was neglected by her single mother, Westgard fell in with an older crowd who drank alcohol and consumed hard drugs.116

92. At the age of 11, Westgard met an older man, who physically, mentally, and sexually exploited her.117 Westgard started consuming alcohol and hard drugs, including heroin.118

93. When Westgard was 16 years old, she had a baby.119 Westgard split up with her son’s father and ended up losing custody of her son to him.120

94. Around this time, Westgard started using crystal meth.121 Crystal meth ruined Westgard’s life.122

95. Westgard needed crystal meth daily and moved to the streets of Calgary so that it would be easier for her to find and use crystal meth and opioids.123

96. On the streets of Calgary, Westgard was introduced to fentanyl and started injecting fentanyl and heroin daily.124 Westgard developed a severe form of opioid use disorder. Westgard’s life revolved around finding and using opioids:125

114 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶2-5. 115 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶6. 116 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶8-10. 117 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶8-11. 118 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶8. 119 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶14. 120 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶14. 121 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶15. 122 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶15. 123 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶16. 124 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶17. 125 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶19. -28-

My life revolved around satisfying my opioid dependency. I would wake up in the morning feeling sick from opioid withdrawal and immediately look to find a way to buy or get drugs to address my sickness and satisfy my urges.

97. Westgard was forced into survival sex work to support her opioid habit:126

That meant sex work. Growing up, I learned that men would take interest in me and give me things like money for sex. On the streets, I started to have sex with men in return for money and drugs. It was disgusting. I never liked it. It scared me and made me feel really shitty about myself. But, my opioid use dependency was so bad that I would do it. I did not feel like I had a choice. The alternative was much worse. 98. Westgard had a number of close violent encounters with predators. However, life on the streets with an opioid use disorder is marked by violence:127

The streets were also an extremely violent place. Assaults and robberies happened frequently. If you said one wrong word to someone, you could be beaten to death. That was the reality I lived on the streets of Calgary.

I was robbed, assaulted, and harassed regularly. I remember once being assaulted and making my way to a bus stop for help. I was somewhere far away from where I tended to live in Calgary, an area of the city I was not familiar with. A bus came and the bus driver would not let me on despite my visible distress. I did not have enough bus fare because I was robbed. He just left me there and I was so scared and angry. People did not value the lives of people with drug dependencies on the streets. Our lives were worthless to them.

99. Westgard acquired Hepatitis C through unsafe opioid consumption on the streets.128 Westgard also did not see her son throughout this period of time, as she was shamed by the life she was living.129

100. Westgard had resigned herself to the likelihood that she would die on the streets of an opioid overdose or a violent attack.130 Westgard was ready for that fate because it seemed like the natural end to the life she was living, and Westgard could do nothing to escape. However, everything changed when she started iOAT therapy.

101. Westgard started on iOAT in October 2019 and her life changed immediately:131

My life changed immediately. Now, I no longer have to sleep with strangers and risk my life for drugs. I am prescribed injectable hydromorphone and use it in a safe and secure setting.

126 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶20. 127 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶24-25. 128 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶26. 129 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶27. 130 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶28. 131 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶31-38. -29-

I started off taking 3 doses of hydromorphone a day to manage my cravings. Now, I am down to 1 dose of hydromorphone. I have curtailed my use of opioids significantly. I can now imagine a scenario where I am off of opioids entirely. This would not have been possible without being on the iOAT program.

I am no longer on the streets now. I accessed youth housing. Part of the condition to live in the building was that I could not use illicit drugs. Since iOAT and injectable hydromorphone are prescribed by a doctor and part of my opioid use disorder treatment, it is not considered illicit drugs. I can inject hydromorphone from iOAT freely and still keep my housing.

When I was on the streets, I would wake up each day feeling sick from opioid withdrawal, with the only thought in my head being how quickly could I find money to buy drugs. Now, I have time to cook, read, socialize, and develop myself as a human being.

The hydromorphone provided through the iOAT program is safe. I also use it in a safe environment with safe gear. I only receive the dosage of injectable hydromorphone required to satisfy my urges. I am functional after my dosage and able to live my life without being too high or tired. My dosage never exceeds the amount needed to address my withdrawal symptoms.

I have reconnected with my son and am so proud that I can be around him healthy and stable. There is nothing that means more to me in the world than my son, and managing my opioid use dependency through the iOAT program has allowed me to be in his life again.

I am not afraid of dying on the streets. That seemed like an inevitability before iOAT. Now, I am using uncontaminated hydromorphone in a safe and secure environment. I am no longer doing sex work. I am not sharing needles or gear for drug use.

I have gained weight and am so much healthier. I have hope for the first time in a long time, and dreams of a future. I want to be sober and become a peer support worker. I only have these dreams because of iOAT. It has created things for me that I never thought possible when I was on the streets. 102. iOAT built Westgard “back into a person.”132 It provided her hope and a future; that she has inherent dignity and the possibility of a life beyond the violence and dependency that she had experienced on the streets. Westgard wants to have a long and good life, and this has only been possible through iOAT.133

v. Dustin Wesley Anderson 103. The Plaintiff Dustin Wesley Anderson (“Anderson”) is 29 years old and receives iOAT therapy in Calgary.134

132 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶39. 133 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶39-41. 134 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶¶2-5. -30-

104. Anderson was born to a single mother and was homeless for much of his early childhood.135 Anderson was eventually apprehended by the state and placed in foster care until the age of 16.136

105. Around the age of 18, Anderson moved to Alberta and worked in the oil patch in Fort McMurray.137 There, Anderson earned a good living and was financially stable.138

106. Before turning 20, Anderson was involved in a serious motor vehicle accident and was badly injured.139 Anderson was prescribed opioids as part of his recovery. However, Anderson developed a dependency to his pain killers.140 When Anderson could no longer access opioids through his medical provider, he started buying oxycodone and other opioids on the streets.141

107. After Anderson lost his job, he started diverting all his money towards buying opioids. Anderson was missing rent and truck payments, and forgoing food, so that he could buy and use opioids daily, often multiple times a day.142

108. Anderson started living on the streets, and was consumed by one thing: “buying and doing drugs”:143

if I didn’t do drugs, my withdrawal symptoms would destroy me. They would make me go crazy. I would be in so much pain.

109. Anderson started committing property and identify theft crimes to support his opioid habit.144 Eventually, Anderson was arrested, convicted, and served a long sentence.145 After being released, Anderson’s opioid dependency continued.

110. Anderson tried a variety of different treatment options to manage and overcome his opioid use disorder. None of them worked:146

I tried every treatment program out there to manage and overcome my opioid use disorder. I tried abstinence, methadone, suboxone, and the opioid use dependency program. Nothing

135 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶7. 136 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶7. 137 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶9. 138 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶9. 139 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶10. 140 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶10. 141 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶10. 142 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶¶11-12. 143 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶13. 144 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶14. 145 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶15. 146 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶16. -31-

worked. My cravings continued unabated and the withdrawal symptoms were so strong. They consumed me. I continued to buy and use opioids on the street.

111. Anderson overdosed a number of times on street opioids but survived.147 However, after an overdose, he would return to using street sourced opioids despite the risk because his dependency was so strong.148 There was nothing that Anderson could do.

112. In January 2020, Anderson was accepted into the iOAT program and things changed for Anderson immediately.149

113. Anderson credits iOAT for saving his life:150

The iOAT program saved my life. I have not used street opioids since being on the program. I have not committed any crimes since that time. There is no need to because the iOAT program helps me manage my opioid use disorder by providing me clean hydromorphone. Gradually, I have started to use less hydromorphone and see a path towards complete sobriety.

114. As a result of iOAT, Anderson now has a job and is working as a roofer.151 Anderson is able to work full-time despite being in iOAT because the program only provides him enough opioids to quench his cravings and withdrawal symptoms while allowing him to be functional to work.152 Anderson now has goals and a future, including owning his own roofing company.153

vi. Fabian Pole 115. The Plaintiff Fabian Pole (“Pole”) is 23 years old and is receiving iOAT treatment through the Calgary clinic.154

116. Pole is Indigenous and was placed in foster care at 6 weeks old.155 Pole was adopted by a foster family shortly afterwards.156

117. Pole lives with Fetal Alcohol Syndrome Disorder.157

147 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶¶17-19. 148 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶¶17-19. 149 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶22. 150 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶23. 151 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶26. 152 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶24. 153 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶¶25-27. 154 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶2-5. 155 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶7-8. 156 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶7-8. 157 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶9. -32-

118. Pole grew up in Airdrie and had a typical suburban childhood experience.158 Pole was an avid soccer player and had a lot of friends.159

119. Pole started experimenting with drugs at the age of 12 or 13 after his sister was killed in a motor vehicle accident.160 Smoking weed took his mind off of what happened.161

120. However, Pole started doing harder drugs, including consuming fentanyl speedballs — a combination of fentanyl and cocaine — at the age of 16.162

121. Pole was eventually kicked out of his home and started living on the streets of Calgary163. While on the streets, Pole was exposed to a reality he was not aware of until that point:164

Violence and the prospect of death is all around you on the streets when you are using drugs. Someone may rob you or kill you for your clothes, money, or drugs. You may overdose and die. 122. Pole’s opioid use disorder increased in severity doing this time and he was injecting opioids daily.165 Pole’s entire days were focused on finding and consuming opioids:166

When you are on the streets and have an opioid dependency, all you think about is your next fix. You wake up and are suffering from withdrawal, and are immediately searching for a way to buy the drugs you need. You do not think past getting your next fix. It is not possible to have plans or think further into the future. It is all about survival and finding a way to find drugs.

123. Pole shared needles with other drug users on the streets and he has overdosed between 10 to 15 times. Pole accepted the fact that he would die on the streets of an opioid overdose and that it could happen the next time he injected. But, there was nothing Pole could do about it:167

I knew that if I continued on the path that I was on that I would die of an opioid overdose. I have already had 10 to 15 overdoses while using opioids on the streets, and almost died each time. But, I still returned to opioid use after each overdose. There was nothing I could do about it. I needed to use opioids. My body and mind compelled me back to using opioids. Using opioids wasn’t a choice.

158 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶10-11. 159 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶10-11. 160 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶11. 161 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶11. 162 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶13. 163 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶20. 164 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶21. 165 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶22-23. 166 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶22. 167 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶25-26. -33-

124. A sense of resignation and hopelessness developed in Pole because none of the treatment options for opioid use disorder worked for him.168

125. However, once Pole was accepted into iOAT, his life changed. iOAT provided him with a treatment option that is able to help him manage and overcome his serious opioid dependency. As a result, Pole’s health and social well-being has improved significantly:169

My life changed immediately. iOAT provided me injectable hydromorphone that was safe. I did not have to go out on the streets to find fentanyl.

The opioids and amount of opioids I inject at iOAT are safe. I am given an amount that I know my body can handle. The amount given is just enough to quench my opioid dependency and not any more that would prevent me from functioning properly.

I stopped being around all the violence and instability on the streets as a result of being in the iOAT program. I don’t have to be in that environment any more to get opioids. There was no longer any risk of robberies, muggings, or other forms of assaults.

I found housing because I was on iOAT. I accessed youth housing. Part of the condition to live in the building was that I could not use illicit drugs. Since iOAT and injectable hydromorphone are prescribed by a doctor and part of my opioid use disorder treatment, it is not considered an illicit drug. I can inject hydromorphone from iOAT freely and still keep my housing.

On the streets, finding and using drugs was my singular focus. I did not eat regularly or in a healthy manner and lost a lot of weight. I was 115 pounds when I joined the iOAT program and now I am 165 pounds. I eat regularly now and gained weighed because I am no longer fixated on just finding a way to buy and use drugs. I can take care of my health by eating regularly and consuming healthy foods.

I have never overdosed while on iOAT. The hydromorphone I receive through iOAT is safe. I am given only enough to satisfy my dependency and nothing more. I receive an amount that allows me to still function day to day.

After stabilizing my opioid use disorder, I am now working on my other health issues. I have cured by Hepatitis C. I am taking medication to treat my depression. I cannot remember when I was this healthy.

I have significantly decreased my opioid dosage amount and frequency of dosage since being on the iOAT program. I started off taking a high amount 3 times a day. I have managed to decrease my use to a lower dosage once each day. I am gradually decreasing my daily opioid usage to the point where I do not need it anymore.

I now can think about things beyond my next opioid fix. I can plan for the future. I have dreams and goals for the first time since I developed my fentanyl dependency.

168 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶27. 169 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶29-38. -34-

I want to return to school and obtain my GED. I want to reunite with my family. I want to live a normal and stable life. I want to manage and eventually overcome my opioid use disorder. There is more to life than drugs and I want to experience that.

126. With iOAT, Pole does not have to worry about overdosing and dying, or spending his days finding a way to buy and use opioids. Pole is provided a dosage of opioids that satisfies his cravings and allows him to function. As a result, Pole has been able to treat his Hepatitis C, and develop goals and consider a future beyond drug use and overdose death.170

vii. Gary Wayne Fiddler 127. The Plaintiff Gary Wayne Fiddler (“Fiddler”) is a 56 year old patient of the Edmonton iOAT clinic.171

128. Fiddler is a residential school survivor who grew up consuming drugs and alcohol.172 Fiddler began using heroin, cocaine, and morphine in his 20s, and the use of hard drugs transformed him.173 They took the pain and trauma of his childhood and youth away, but also unleashed aggression and violence.

129. Fiddler spent much of his life in jail or high off of opioids. Fiddler had been homeless for many years and had been hospitalized for complications from his drug use or due to violent assaults relating to street life and drug use.174

130. In 2016, Fiddler’s son died of a fentanyl overdose.175 Fiddler’s son was 17 years old and had his whole life ahead of him.176

131. The loss of Fiddler’s son changed him:177

I think about the loss of my son every single day. I do not think I will ever recover from the pain of losing a child. Despite all the trauma I have witnessed in my life, losing my son was the hardest thing I have ever experienced. Opioids took my son away from me.

170 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶37. 171 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶¶2-5. 172 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶¶7-9. 173 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶¶12-13. 174 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶¶14-15. 175 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶16. 176 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶16. 177 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶17. -35-

132. In 2018, Fiddler was admitted to the Royal Alexandra Hospital and was at a low point in his life, still coming to terms with the death of his son.178 Fiddler was injecting opioids multiple times a day, placing himself at risk of an overdose death or becoming seriously ill.

133. Fiddler had tried — and failed — numerous treatments to manage and overcome his severe opioid use disorder. Fiddler had tried abstinence, suboxone, methadone and other treatments but none of them worked.179 However, the Addiction Recovery and Community Health Team at the Royal Alexandra Hospital recommended Fiddler try iOAT, which had only recently been made available in the province.

134. As Fiddler deposes that through iOAT, he can see a path towards sobriety for the first time in his life: 180

When I joined the iOAT program, I was prescribed injectable hydromorphone 3 times a day at a particular dosage. After one week of being on the iOAT program, I stopped using street drugs. Two months after starting treatment, my opioid dosage decreased. I am now on a plan to gradually lower my injectable opioid consumption to a point where I am no longer using injectable opioids. Eventually, I want to stop using opioids entirely.

iOAT is a safe place to inject opioids. iOAT provides me clean drugs and I only receive the amount needed to function properly. This allows me to satisfy my cravings but still carry out day to day activities. The program provides a safe basis to use drugs with the aim of sobriety, which is something that is not possible on the street.

For the first time in my life, I can confidently say that I am on the path to sobriety.

135. Fiddler has gained weight and is living a much healthier lifestyle.181 With his opioid use disorder managed, Fiddler has been able to treat his Hepatitis C, asthma, and chronic obstructive pulmonary disease.182 Fiddler did not have the capacity to focus on his broader health when he was on the streets and consumed by his opioid addiction. But, with his opioid use disorder stabilized, Fiddler is now able to address these health issues and live a healthier life.

178 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶18. 179 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶19. 180 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶¶21-22. 181 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶24. 182 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶25. -36-

136. iOAT helped Fiddler reach a point and helped him find stable housing.183 Fiddler is no longer homeless, and his life no longer revolves around drugs. iOAT provides Fiddler “comfort, safety, and stability,” and has granted him a new lease on life:184

My life no longer revolves around drugs. I am able to go out and experience life. Since being on the iOAT program I have started horseback riding and regularly visit Elk Island Park. These are activities I have never experienced before, and they make me so happy. I feel like I am only starting to live life at the age of 56.

iOAT has given me a future. Before the iOAT program, I had never envisioned a future for myself, aside from being on the streets and using opioids. I now have aspirations and goals. I want to become an outreach worker and help other vulnerable individuals on the streets. I know what they experience each day, and that there is the possibility of a better future. I am passionate about helping others with opioid use disorder.

viii. Gregory Lorne Creor 137. The Plaintiff Gregory Lorne Creor (“Creor”) is 45 years old and receives iOAT therapy in Calgary.185

138. Creor was physically and sexually abused as a child by his adopted father.186 Creor has never come to terms with the experiences he endured and trauma he developed during that period of his life.187

139. Creor started using drugs in his teens. By the time Creor was 17, he had developed opioid use disorder and was consuming opioids daily.188

140. Opioids provided Creor a release from his life. They acted as an escape from all that tormented him.189

141. Creor remembers taking heroin for the first time at the age of 17:190

I remember the first time I used heroin. I was 17, and when I took my first hit, it felt amazing. It felt like a warm hug. I felt safe, secure, and loved. I needed that, especially at that time. I was dealing with questions about my sexuality, brought about by my dad sexually molesting me as a child and I had a lot of questions. Heroin helped me forget things and put me at ease.

183 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶28. 184 Affidavit of Gary Wayne Fiddler, sworn September 7, 2020 at ¶27 and ¶¶29-30. 185 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶2-5. 186 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶8-10. 187 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶10. 188 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶11. 189 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶12. 190 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶13. -37-

142. Creor started to inject opioids daily at the age of 18.191 Creor was on the streets of Vancouver at the time and he started engaging in survival sex work to live and support his opioid habit:192

It is a jungle on the streets. As a teenager and young adult, you are particularly vulnerable. There are a lot of predators on the streets. Older men who will exploit your situation to sexually abuse you. I remember one man who used to pick me up, and give me food, a place to stay, and a shower, and in return, he would touch me. I didn't want to do those things with him but I had no alternative. It was about survival.

Being on the streets is hell. I was robbed all the time. Beaten and hospitalized. In constant danger. It was a war zone, and you need to do whatever you can to survive.

143. For nearly 2 decades, Creor struggled with his opioid use disorder, and at various times, managed to keep it hidden or in check, allowing him to have a career as a forklift operator and a son.

144. However, Creor lost his job and his son had moved to live with his mom. Creor returned to injecting opioids daily and ended up homeless.193

145. Chasing opioids became the singular focus of Creor’s life:194

My cravings were so strong. I had really bad withdrawal symptoms and needed drugs to make the sickness go away. My life on the streets was focused on either using drugs or finding a way to use drugs. That is all I could think if when I was on the streets. 146. Creor started selling drugs and committing petty crimes to support his opioid habit.

147. Creor would share needles and other drug preparation and consumption gear with other users on the street.195 Creor knew it was dangerous, but his cravings were so strong that he would ignore the risk in order to get his dosage and take away his withdrawal sickness.196

148. In October 2019, Creor suffered a major overdose.197 Creor almost died. When Creor came to, he realized that he needed to change his life and was accepted into the iOAT program.

191 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶14. 192 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶15. 193 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶19-21. 194 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶22. 195 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶23. 196 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶23. 197 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶24. -38-

149. Creor credits iOAT with saving his life:198

iOAT saved my life. There is no doubt in my mind. It helped me stabilize my opioid use dependency. I use a clean supply of opioids and at a dosage that allows me to function. I no longer risk overdosing, sharing dirty equipment with others, or have to experience the violence of the streets. I have a sense of security I didn't have before. I am not having to chase a fix at every turn, and all the dangers associated with that, including overdosing or dying on the streets as a victim of an assault or robbery. 150. iOAT provided Creor a path towards stabilizing and managing his severe opioid use disorder and the possibility of achieving sobriety:199

The program also provided me a real pathway towards recovery and sobriety. I am gradually weaning myself off of opioid use and have made major strides. I finally see a future where I can stop using opioids all together.

I no longer take opioids to get high or enjoyment. I use it to address my withdrawal symptoms, so that my opioid cravings are managed. This is a big step for me in my management of my opioid use disorder.

151. Creor no longer fears dying of an opioid overdose death, as he is prescribed correct dosages of clean opioids and uses them in a safe setting200. Creor is no longer committing crimes to support his opioid habit. Creor has gained weight and is eating healthier.201

152. Creor has also been able to address his broader health issues after stabilizing his opioid use disorder, something he would never have been able to do without iOAT:202

I am also addressing my other health problems. My mental health and childhood trauma, and even my sleep apnoea. I wouldn't have the capacity to do this without iOAT. I would be consumed with finding opioids to use on the streets and not have the ability to address my broader health issues if was not on iOAT. There was no time to think about these issues because my opioid withdrawal symptoms didn't allow me to do so. I just needed to satisfy my cravings.

153. iOAT has given Creor hope and a sense of purpose. Creor knows that his life has value and that he has things to live for aside from consuming opioids:203

iOAT has shown me that my life is worth living. My life has meaning even if I suffer from opioid use disorder. I am more than some junkie in an alley. My life matters.

198 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶25. 199 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶26-27. 200 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶27. 201 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶28. 202 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶29. 203 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶31-33. -39-

I am not ready to die. I have dreams. I see a future that is beyond my next opioid fix. I want to regain my health, so I am no longer dependent on an oxygen tank. I want to go back to school to learn a new trade or skills. I want to get a new job. I want to start working.

I also just got housed. Finding housing is all due to iOAT. I am stable now because of iOAT and this was integral to finding housing.

I have a much better relationship with my son. I can see him now. I am no longer ashamed and try to avoid him. I want him to be proud of me, and I want to see him grow old and have his own kids.

None of this would have been possible without iOAT.

ix. Keigan Tierney 154. The Plaintiff Keigan Tierney (“Tierney”) is 27 years old and lives with severe opioid use disorder.204 Tierney is treated for his opioid use disorder at the Calgary iOAT clinic.

155. Tierney father is a successful businessman and the family’s home was located in one of Calgary’s exclusive gated communities.205 Tierney and his sibling attended elite private schools, and “never had any want or need.”206

156. Tierney played football during his youth at a high level, including in high school. After an injury playing football, Tierney was diagnosed with moderate-traumatic brain damage and perhaps even had Chronic Traumatic Encephalopathy (“CTE”).207 CTE can only be diagnosed after someone’s death, as their brain needs to be dissected and examined.

157. Tierney’s brain and behaviour changed after the injury.208 No longer playing football and having considerable spare time, Tierney began experimenting with drugs. Tierney’s experimentation with drugs soon developed into a significant fentanyl dependency:209

Fentanyl and other opioids made me feel good. They provided me a sense of purpose. 13. I needed to use drugs daily. If l did not have drugs, I felt sick. My entire life began to revolve around buying and using drugs. It consumed my life.

158. Tierney’s opioid use disorder destroyed his life and relationship with his family:210

My family realized that I was dependent on drugs and forced me into drug rehab. I went 7 to 8 times and promised them that I had beat my habit at the end of each program, but

204 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶2-5. 205 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶7. 206 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶7. 207 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶8-10. 208 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶11. 209 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶12-13. 210 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶14-15. -40-

would quickly relapse. The pull of drugs was too strong for my body and my mind to resist. I needed drugs and I would do anything to find and use them. My drug use had serious negative impacts on my family. I lied and cheated my family in my pursuit and use of drugs. I hurt them in many different ways, and feel shame for what I did to them. My illness got the better of my judgment and love for my family.

159. Tierney ended up on the streets of Calgary, and doing whatever he needed to do to survive and support his opioid use:211

Being on the street and using drugs opened me up to a world I never knew existed. It was as scary and precarious world, where you had to do anything that you could to survive. There was no guarantee that you would make it to the next day, and my singular focus was finding and using drugs by any means possible. I stole cars, sold drugs, and did a lot of things that I am ashamed of to support my drug habit. I discovered a part of me that I never knew existed. A part of me that is scary, that could inflict serious violence on others to get my way. Drug dealers and others would force me to be that person, and I would get the drugs that I badly needed in return.

On the streets, violence and death are reality. You have to do whatever you can to survive. It scared me that I became a violent person. Someone numb to the violence, and willing to engage in that violence for drugs. I experienced a range of violence and brushes with death. From being attacked with a tire iron to overdosing on drugs. This was a normal part of life.

160. Tierney experienced a number of opioid related overdoses, nearly dying each time, but returned to injecting street opioids because the compulsion to consume them was too strong for him to avoid.212 Tierney rather use street drugs and risk his life than give up opioids.

161. Tierney has been arrested frequently and jailed for the crimes he would commit to support his opioid use.213 Tierney described jail as being safer than being on the streets with severe opioid use disorder:214

Jail was a lot safer than the streets but it did not really address my opioid use disorder and I started using opioids again after being released.

On the streets, all you care about is your next fix. You do not care about anything beyond that. You do not care about even waking up the next day. All you care about is getting drugs to get high. This is what consumes your thoughts. Your mind is fixated on just using drugs as quickly as possible.

211 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶17-23. 212 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶21. 213 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶18-22. 214 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶22-23. -41-

162. Tierney tried numerous detox and other treatment programs to treat his severe opioid use disorder, but nothing worked.215 In December 2019, Tierney was referred to iOAT treatment and his life changed immediately:216

When I joined the iOAT program in December 2019, I was prescribed injectable hydromorphone 3 times a day at a particular dosage.

By August 2020, the frequency and level of my dose has tapered off significantly. I can even imagine a life where I am not using injectable opioids and am on suboxone or not dependent on drugs at all.

163. Tierney has also experienced a number of other positive health and social developments as a result of being on iOAT:217

Before I started using drugs, I was 285 pounds. When I was homeless and using drugs, I was 140 pounds. Since being on the iOAT program, my health and appetite have returned, and I now weight almost 200 pounds.

I am able to visit my family now. They want me back in their lives because I am not consumed by stealing and deceiving others to get drugs. I can be myself because I am not stressed and focused on finding drugs.

I feel happy and relieved that I can be in my family’s life again. I caused them so much pain and it brings me pain. They mean so much to me. I am scared of losing them again.

Since being on iOAT, I no longer worry about overdoses or using unsafe opioids and drug use supplies. Everything is safe and supplied by iOAT. I can use injectable hydromorphone without fear.

iOAT also means that I can escape that street life. I no longer have to fear the daily violence I was exposed to. I do not have worry about being attacked or being forced to attack others.

For the first time in a long time I can see and plan a future. While on the street and using drugs, all you cared about was your next fix. Now, I have plans that are 6 months into the future. I want to get my own housing. I want to get a job. I want to regain my family’s trust. I want to be in my nephew’s life. I want to coach youth football. I want a normal life where drug dependency does not dictate everything I do. I just want a regular, stable, boring life.

164. Tierney wants to stop consuming drugs entirely. For this first time in a long time, Tierney has goals and ambitions, and is living a life beyond using street opioids.

215 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶14. 216 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶25-26. 217 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶27-32. -42-

x. Michael Shane Carson 165. The Plaintiff Michael Shane Carson (“Carson”) is a 41 year old iOAT patient in Calgary.218

166. Carson was sexually assaulted at the age of 13 by a family friend.219 Carson started using drugs and alcohol to deal with the pain and trauma he endured, including consuming crack cocaine at 16 years old. 220

167. Hard drugs provided Carson a release: way to get away from the pain and shame associated with the abuse he suffered.221

168. Carson used to commit crimes to support his drug dependency, and served prison time for armed robbery.222

169. In prison, Carson started experimenting with opioids and developed a serious dependency to them.223

170. In 2017, Carson witnessed his girlfriend die of an opioid overdose.224 Watching his girlfriend die transformed Carson, causing him to move to Calgary.

171. In Calgary, Carson was homeless, living on the streets, with his days consisting of “trying to find enough money to buy drugs to get high.”225

172. Carson describes life being on the streets with an opioid use disorder as difficult and full of violence:226

Trying to find money to get high and getting die was my sole preoccupation. I would fight, steal, and do whatever I could to find enough money to buy drugs. That is how much I needed drugs. There was something compelling me to do things I knew were not right to earn enough to buy drugs. All I cared about was buying and using drugs. I have overdosed at least 10 times over the course of my life. I do not know how I am still alive based on how many times I have overdosed and all the close calls I had where I did not think that I

218 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶2-5. 219 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶7. 220 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶8. 221 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶8-10. 222 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶11-13. 223 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶14-15. 224 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶17-19. 225 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶22. 226 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶23-25. -43-

would survive. I have shared equipment for drug preparation and use, and acquired Hepatitis C. I knew I could get sick if I shared equipment with others.

173. Carson overdosed a number of times, nearly dying, and contracted Hepatitis C in the process of using street-based opioids with others.227

174. Carson’s opioid use disorder was so strong that he knew his actions could kill him or cause him to catch a serious disease, but he could not do anything to stop using street sourced opioids.228 Carson’s dependency was all encompassing.

175. However, in 2019, Carson was accepted into the iOAT program in Calgary after it was determined that no other form of treatment could address the severity of his opioid use disorder.229 Within a year, Carson had stopped injecting opioids and was strictly on oral medication.230 For the first time since the age of 16, Carson has hopes of a future that is not defined by a dependency on drugs and that he can live a long, healthy life:231

iOAT has made me more confident, safe, and secure. It has provided me the possibility of a future. A future where I can have aspirations and goals, and not constantly in fear if I will survive the next day or next time I used drugs.

I have hope and dreams for the first time in a long time. Before, all I cared about was finding a way to get drugs and using drugs, even if it killed me. Now, I want to find a job and get my own place, and I have made significant strides towards these goals. Had it not been for iOAT, none of this would have been possible.

176. Further, as a result of iOAT, Carson has experienced a number of significant health and social outcomes:232

I entered the iOAT program at 165 pounds and now I weigh 190 pounds. I gained weight because my health improved on the program. I am no longer worrying and struggling to find money for my next drug fix, and instead can focus on my health and eat better.

I no longer have any need to steal or commit crimes to support my drug dependency. iOAT provides me drugs to use, and the drugs are clean and I can use it in a safe environment. Since the drugs are clean, I do not worry about what else is in the drugs.

I no longer have concerns about overdosing. The drugs are clean and the iOAT Calgary Clinic team know the exact amount I need to quench my desire and ensure that I can continue to function day to day. I only receive the amount needed to function properly. The

227 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶24-25. 228 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶26. 229 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶27. 230 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶29. 231 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶37-28. 232 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶30-37. -44-

program provides a safe basis to use drugs, which is something that is not possible on the street.

I was able to treat and cure my Hepatitis C through the iOAT program. The program provided stability and medical conditions necessary for me to treat my illness. Without the iOAT program, it would not have been possible for me to treat my Hepatitis C.

My years of drug use also led to other health issues, including a blood infection in my leg and breathing problems. In iOAT, I was able to treat those issues. I would have never treated these health issues if I was still using drugs on the street. It would not be my priority, as I would spend all my time trying to make enough money to buy drugs. That was my singular focus.

The iOAT program has also allowed me to escape the violence of the streets. Since I am on iOAT, I can avoid those people and crowds that I engaged with before when I used street drugs. 177. Carson describes iOAT as not only saving his life, but providing him “something to live for that is more than just using drugs.”233

xi. Shane Paul Monette 178. The Plaintiff Shane Paul Monette (“Monette”) is 38 years old and receives iOAT therapy in Edmonton.234

179. Monette was abused by his step-father, and was institutionalized as a child and teenager, including at the Edmonton Youth Offender Centre.235

180. In Monette’s late 20s, he started using hard drugs like cocaine and crack cocaine. They helped him overcome some personal challenges in his life and served as an “escape.”236 Opioids, in particular, helped Monette forget his stresses and pain the most.

181. After using oxycodone (an opioid) pills regularly, Monette noticed that he needed a harder opioid or his opioid withdrawal symptoms would persist237:

After a while, I realized that I was not getting as high as I used to on oxycodone pills. I was developing serious withdrawal symptoms and found that oxycodone pills were not working. I needed more potent opioids to address my withdrawal symptoms and maintain me.

182. This led Monette to inject heroin and other opioids, deepening his opioid use disorder.

233 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶39. 234 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶2-5. 235 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶7-9. 236 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶10-11. 237 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶14. -45-

183. Monette describes the moment he started injecting heroin as the point when his life deteriorated.238 Monette spent all his time finding and consuming opioids, committing petty crimes to support his opioid habit.

184. Monette ended up in the Edmonton Remand Centre, where his withdrawal symptoms were so strong that he almost died. Monette’s life continued to deteriorate:239

My life continued to progress down this path, and I noticed a lot of my friends who also used opioids on the street were dying of overdoses at a rapid rate. So many of my friends died in front of me. It filled me with sadness and regret, which I treated by using more opioids. I just wanted to forget what was happening.

I was increasingly isolated. My family and friends who were sober turned their back on me. I was stealing and using drugs all of the time. They didn't want to be around me. I understood why but there was nothing that I could do to stop using.

I had a lot of overdoses in my life. I can't even count the number of times that I have overdosed and almost died. I am surprised that I am still alive.

I had a $400.00 a day heroin habit. My opioid use disorder was extremely severe. I needed to consume a lot of opioids each day to stabilize and manage my withdrawal symptoms. When I was in withdrawal, I felt like I was dying. The pain and sickness was too much.

185. Monette had developed a heart infection related to his opioid use disorder.240

186. Monette tried all forms of therapy, including detox, suboxone, and methadone, but no treatment worked:241

Throughout this period of time, I had periods where I realized that this life was no good and I needed a change. I had these moments of clarity where I convinced myself that I needed to manage and stop my opioid use. I would pick up the phone and enrol in various treatments that were available for people with opioid use disorder. I had already tried abstinence and I failed to quit my habit that way. I enrolled in a detox centre and started treating my condition through suboxone and methadone but it didn't work.

For 4 to 5 years, I was on suboxone and methadone, and my cravings continued. Withdrawal was still too strong despite using suboxone and methadone. I still used street opioids during this period of time to treat my withdrawal symptoms. Each attempt I made towards recovery failed.

187. Monette saw no hope in being able to treat the infection or his broader opioid use disorder. Monette was resigned to the fact that he would die on the streets of an opioid use disorder.242

238 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶15. 239 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶17-20. 240 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶23. 241 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶21-22. 242 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶23. -46-

188. However, Monette’s life changed when he was accepted into iOAT, which in his words, gave him his life back:243

iOAT has given me my life back. iOAT was a wakeup call for me. I realized that I could beat my opioid use disorder. It seemed too good to be true. It was overwhelming.

On iOAT, I was prescribed hydromorphone 3 times a day at a high dosage. My opioid tolerance was very high. Now, I am prescribed hydromorphone once a day with some kadian that I use manage my withdrawal symptoms at night.

189. Being on iOAT has allowed Monette to avoid and overcome a number of health and social ills, including the risk of overdose death. iOAT has provided Monette a future beyond using opioids:244

iOAT has provided me a future. I have aspirations and goals. Before, my life was just about chasing opioids. That's all I cared about. Now, I am driven to be stable and healthy, and to be a positive force in the life of my family and friends. At the end of the day, I want a normal, boring life and to be happy. I don't want to be susceptible to the triggers in my life where I descend back into street opioid use.

I am no longer using dangerous street opioids that could cause me to overdose and die. iOAT provides safe opioids, and most importantly, at a dosage that satisfies my withdrawal cravings and still allows me to function. iOAT for me is not about getting high, but being stable each day to make the most of it.

I haven't been using street opioids for the majority of time that I have been on iOAT. Every other treatment I used to address my opioid use disorder failed. iOAT is the only one that has worked. I am so grateful to iOAT. It has given me my life back.

2. The Clinical Staff at iOAT

190. In addition to collecting the Plaintiffs’ evidence on the impact of iOAT on their lives, a number of clinical staff at the iOAT clinics in Alberta provided their own account of how the therapy has improved the health and social outcomes of patients.

i. Dr. Krishna Balachandra 191. Dr. Krishna Balachandra (“Dr. Balachandra”) is a physician registered with the College of Physicians and Surgeons of Alberta.245

243 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶26-27. 244 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶27-29. 245 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶1. -47-

192. Dr. Balachandra is a specialist in addictions medicine, and has degrees from the University of Manitoba and Western University.246 Before moving to Alberta, Dr. Balachandra completed a year-long fellowship in Addictions Psychiatry at Yale University in New Haven, Connecticut.

193. Dr. Balachandra is President of the Section of Addictions Medicine with the Alberta Medical Association.247 He is certified in addiction medicine and addiction psychiatry by the American Board of Preventative Medicine, American Board of Psychiatry and Neurology, International Society of Addiction Medicine, American Society of Addiction Medicine, and the Canadian Society of Addiction Medicine.

194. Dr. Balachandra has treated patients with opioid use disorder in Connecticut, Ontario, and Alberta.248 Dr. Balachandra has been in clinical medical practice in Alberta since 2005 and holds the rank of Clinical Assistant Professor with the University of Alberta.

195. Dr. Balachandra works at the iOAT clinic in Edmonton, in addition to working at the city’s Opioid Dependency Program (“ODP”) clinic.249 ODP is a medical facility in Edmonton that provides a range treatment to individuals living with opioid use disorder, but does not serve the sub-population of patients that require iOAT to effectively manage their condition. Those patients are treated exclusively through iOAT clinics in Edmonton and Calgary.

196. Dr. Balachandra deposes that he has personally witnessed the benefits that iOAT therapy provides:250

My participation in iOAT has been an incredible period of professional growth and personal fulfilment. For many years, traditional treatments could not retain a subgroup of patients with severe opioid use disorder, who continued to engage in intravenous opioid use. This population was often disengaged in the health system, often involved in criminal activity, suffering from untreated major medical (HIV, Hepatitis C), and major psychiatric conditions (PTSD), and suffering serious psychosocial stressors (homelessness). Given the prevalence of high potency illicit opioids in the community, this population is at risk for overdose and death...

Injectable opioid agonist therapy in Alberta consists of providing medical grade hydromorphone for patient to inject in a medically supervised facility up to three times per day and provide slow release oral morphine or methadone overnight to prevent withdrawal. However, the overall treatment concept encompasses more than that. The team consists of

246 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶2-3. 247 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶7. 248 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶5. 249 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶8 and Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶3. 250 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶¶15-16. -48-

patients in recovery (peer support workers), pharmacists, nurses, social workers, and physicians. The team works collaboratively and with the patient to identify unique goals. It has been rewarding to witness these patients improve. Patients have become housed, started treatment for HIV and Hepatitis C, started working, obtained identification, addressed with psychological suffering, and retained in treatment. Not a single patient has overdosed or died in our care.

ii. Dr. Susan Bornemisza 197. Dr. Susan Bornemisza (“Bornemisza”) is a physician who works at the Calgary iOAT clinic.251 In addition, Dr. Bornemisza is the co-lead for Renfrew Recovery Center, which provides detox and oral opioid replacement treatment to individuals living with various substance use disorders.252

198. Dr. Bornemisza has worked at the Calgary iOAT clinic since it opened in October 2018.253 Dr. Bornemisza also treats the sexual health needs of this unique patient population.254

199. Dr. Bornemisza deposes that she has personally witnessed Calgary iOAT patients receiving the following sexual health and social benefits from iOAT therapy:255

At the Calgary iOAT Clinic, we were able to successfully cure many patients with hepatitis C infections, reducing the burden of Hepatitis C on the street and minimizing the potential for spread to others outside of the clinic. It would not have been possible to cure this population of individuals with Hepatitis C without the iOAT program.

It is also important to note that these individuals had Hepatitis C for many years without being successfully treated, and that the cost of treatment is estimated around $40,000.00 a patient. Any medical provider must be confident that a patient will be retained for their treatment period of 8 -12 weeks to start treating an individual’s Hepatitis C infection. The major challenge in treating individuals with severe opioid use disorder is that it is difficult to retain and stabilize their opioid use disorder for the length of time needed to treat their Hepatitis C. However, we found that iOAT addressed those obstacles to Hepatitis C treatment, allowing us to cure the infection in many patients.

iOAT is was able to partner with Southern Alberta Clinic (“SAC”) for HIV and to support daily dosing of HIV medications. This is important to improve outcomes and reduce infection rates. With daily dispensing and support of iOAT staff, the clients living with HIV were able to achieve virological suppression which is recognized as non-infectious. This was not possible when they were connected to other programs that also included intensive case management because their severe opioid use disorder was not adequately managed with oral OAT. iOAT helped achieve what other opioid use disorder treatment programs was not able to do.

251 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶1. 252 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶2. 253 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶5. 254 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶5. 255 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶¶7-11. -49-

Women and men who inject drugs are a particularly high risk for continued abuse and are at risk to be reliant on a partner or on income from sex work. In the NAOMI trial, researchers found 13.6 to 18.8 percent of patients participated in sex work. A similar proportion of patients in the Calgary iOAT program are involved in sex work. Sex work is extremely harmful to individuals due to high rates of violence, rape, high chance of murder, and risk of sexually transmitted infections and pregnancy. Providing an environment where patients feel comfortable and have access to birth control, IUDs, STI testing, pre-exposure prophylaxis for HIV ("PrEP"), and medication to treat their addiction can give them the option not to participate in sex work and makes them feel valued and safe. For many of the women we work with this is the only place that can accomplish this for them as it removes the financial burden of buying street sourced drugs.

Further, we have been able to offer PrEP to both female and male patients who are at high risk of acquiring HIV, including through sex work and intravenous drug use. The efficacy of this medication is also linked to daily dosing, and without iOAT it would not have been possible to achieve this result with this specific population.

iii. Patty Wilson 200. Patty Wilson (“Wilson”) was a nurse practitioner at the Calgary iOAT clinic from October 2019 to September 2020, and continues to treat individuals living with severe opioid use disorder in Calgary in the non-iOAT clinical setting.256

201. Wilson is the Chief Fellow of the British Columbia Centre on Substance Use Disorder Addiction Nurse Practitioner 2020/2021 Fellowship.257 Wilson is a primary health care nurse practitioner and has been working with marginalized populations living with substance use disorders for 4 years.

202. Wilson, in her role as a nurse practitioner at the Calgary iOAT clinic, witnessed first-hand the impacts of the treatment on patients. Wilson did intake and provided iOAT treatment to the patients at the clinic on a daily basis. Wilson deposes that iOAT benefitted patients in the following manner:258

The significant social and health benefits that are experienced by the patients at iOAT cannot be understated. Successfully titrating to a sufficient dose of IV hydromorphone allows patients to use less of their time and finances in acquiring street-sourced opioids. This has resulted in significantly less time criminal activity with some clients reporting that their time with the Calgary iOAT Clinic is the longest they have not been incarcerated. From a patient survey: 100% of patients have reported reduced street-sourced opioid use and 67% have reported a reduction in methamphetamine use. No clients reported any increase in non-fatal overdoses and 67% actually reported fewer overdoses.

256 Affidavit of Patty Wilson, sworn September 11, 2020 at ¶1 and Affidavit of Patty Wilson, sworn November 20, 2020 at ¶¶3-5. 257 Affidavit of Patty Wilson, sworn September 11, 2020 at ¶2. 258 Affidavit of Patty Wilson, sworn September 11, 2020 at ¶¶10-14. -50-

At the time of the Clinic’s last report (before announcement of the March 2021 closure), 10 patients had transitioned to oOAT and 7 had transitioned to other treatments such as residential or detox. This is not an expectation of the Clinic but were patient-led decisions and demonstrate the capacity of clients to “graduate” from iOAT if treatment is open-ended and not given a fixed end date. It’s important to note that opioid use disorder is a chronic disease and relapse is a recognized long-term risk factor. Allowing patients to return to Calgary iOAT Clinic in the context of a relapse after they have graduated is an important component of the program so they can return to stability.

Patients at Calgary iOAT Clinic can come up to three times a day for IV hydromorphone and get an oOAT agent to bridge them overnight to avoid opioid withdrawal. This is a very intensive treatment and requires a significant portion of every day of the week be spent at the clinic or near the clinic waiting for their next dose of IV hydromorphone. Calgary iOAT Clinic offers a number of wraparound services as it would be unrealistic to expect extremely marginalized clients to effectively access health care elsewhere given the heavy time commitment. Additionally, we know from their intake appointments, that the majority of our patients did not access health care effectively or have a primary care provider prior to becoming Calgary iOAT patients.

Becoming a Calgary iOAT Clinic patient helps connect people to social work, housing support, psychiatry, treatment for hepatitis C, linkages to HIV care, referrals to relevant medical specialists, treatment for skin and soft tissue infections, access to a Registered Dietician within the same clinic that they spend hours each day. This allows for rapid stabilization of not only their opioid use disorder but many other physical and mental disorders. It also assists them in exiting homelessness, some for the first time in years.

An example of this is a 44 year old patient with a 30 year history of opioid use disorder Prior to Calgary iOAT Clinic he was homeless, lived with chronic pain and hepatitis C, was using fentanyl and methamphetamine intravenously, with a history of methadone treatment that had failed. After his non-fatal overdose he presented to the Calgary iOAT Clinic for an intake. During his first 5 months at Calgary iOAT Clinic he was stabilized on IV hydromorphone and Kadian, received non-opioid pain medications, completed treatment for hepatitis C, received dental care, extractions, and dentures, was housed, referred to the Calgary iOAT psychiatrist, and stopped all street-sourced drug use. This level of stability in his opioid use disorder, mental, physical health, and housing within a 5-month time frame is astonishing in the field of marginalized populations with substance use disorder and would not be possible without the wraparound care

G. The Closure of iOAT, Denial of Treatment for Severe Opioid Use Disorder

203. In March 2020, HMQA announced the closure of iOAT, which would take effect on March 2021.259 The closure would happen notwithstanding that patients of iOAT still required access to the treatment. For reasons that are unknown, HMQA decided that iOAT would no longer be offered to Albertans suffering from severe opioid use disorder, even though this was the only effective form of treatment available to them.

259 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶17. -51-

204. Prior to the closure of iOAT, HMQA offered Albertans living with severe opioid use disorder the full range of medical treatment options that existed for treating the disorder:

205. However, with the announced closure of iOAT, from March 2021 onwards, HMQA will no longer provide a full range of treatment options for individuals living with severe opioid use disorder. HMQA will continue to provide treatment options for those living with mild or moderate forms of opioid use disorder, but will no longer offer iOAT, the only form of effective treatment available to Albertans living with severe opioid use disorder:

206. Denying continued access to iOAT is deliberate and will result in a myriad of negative health and social harms that will be felt on an individual and societal level.

H. The Harms Resulting from the Closure of iOAT

207. The Plaintiffs have provided detailed affidavits of the harms that will manifest if HMQA carries out its proposal of shutting down access to iOAT therapy in Alberta past March 2021. -52-

208. In addition, clinical staff at the iOAT clinics in Alberta have tendered additional evidence of harm that will occur to existing and future patients if iOAT is no longer offered in the province.

209. Finally, the Plaintiffs’ have marshalled the affidavits of leading medical researchers and experts on opioid use disorder and iOAT therapy to provide their perspective on the likely impacts of denying access to the treatment in Alberta.

1. The Plaintiffs

i. Taylor Anthony Maxey 210. Maxey specifically deposes that without iOAT, he will revert back to street sourced opioids and be exposed to the harms, deterioration, and violence that iOAT allowed him to escape:260

I am so scared of what will happen to me if iOAT is shut down.

iOAT has changed my life and put me on a path of stabilization and recovery. I have managed to move past my anger and resentment, and work towards a sustainable, healthy future.

I only use opioids to manage my withdrawal symptoms, which make me extremely sick. Without iOAT, I would be back on the streets and using street opioids, as I cannot manage my sickness any other way. My life would be shorter and much harsher if I returned to the streets and were denied access to iOAT. I would be subject to the violence of the streets, and the unsafe and precarious world of opioid use. I would be exposed to unsafe supplies of opioids, and return to being assaulted and robbed at every tum for money and drugs.

My mental health would deteriorate. The confidence and self-esteem I acquired will evaporate. I may return to thoughts of suicide. The idea that my life is not worth living and that I should end it. I have been in that mindset before, and I don't want to return there, especially after knowing that I can have a better, more fulfilling life.

I am afraid of dying. My life has purpose again, and I want to explore and pursue that purpose. I want to build stable, loving, and close relationships. 1 want to meet someone and fall in love, and build a healthy relationship. I want to travel and see the world.

iOAT provided me hope and now, through its closure, it's being taken away. It's devastating. It's like you are drowning in the ocean and have been thrown a life preserver. But, now the life preserver is being taken away from you. Without iOAT, I will be that person in the ocean who is alone and without a life preserver, treading on my own until I give up. I don't want that to happen to me.

I also have a high opioid tolerance. No other treatment option will cater to someone with my tolerance level. That is why I failed all other treatments and was accepted into iOAT. If I am cut off of iOAT, there is no other treatment that will work. My only options are street opioids, and that will mean all the progress I have made will be lost. I will be forced to return to the life I escaped. Life without iOAT terrifies me.

260 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶¶43-50. -53-

211. Maxey fears losing his life if iOAT is shutdown, which is a real possibility in the circumstances.261

ii. Amanda Frances Marie Ervin 212. Ervin deposes that the following harms would befall her if iOAT is cancelled:262

Most of my life has been hell. It has consisted of mainly instability, violence, and being treated like my life has no value.

That all changed with iOAT. I have a purpose and goals. I have self-esteem and know my life has value. I see a path to beating my opioid use disorder and being stable and healthy.

iOAT has given me a life. It makes me feel like a person again. It makes me feel that my life matters, that it is worthy of dignity and respect and that it should continue.

Shutting down the iOAT program robs me of the hopes and possibilities I have for a better future. A life where I am able to better manage my opioid dependency or beat it entirely.

I need access to opioids still to survive and manage my opioid use disorder. Without iOAT providing me my access to opioids, I will be forced to return to buying opioids on the streets from drug dealers. I know that the supply of these opioids is not safe and that they may be contaminated. My risk of overdose may be higher, and I may die if I use them. However, my dependency is too strong for me to just stop using opioids entirely.

I likely will lose my housing if l start using street drugs again and doing the activities I need to purchase street drugs. I will likely spend any money that I receive on street drugs, like I did before iOAT.

While being on the street, I will be preyed on again. I will be raped and exploited. I will be harassed and assaulted. I will likely die on the street. Dying is frankly better than being forced back on to the street with an opioid use disorder. I know that life and it is worse than anything you can imagine. There is also the risk of catching diseases from using unsafe drugs and gear. Diseases like Hepatitis C and HIV/ AIDS.

There is no future for me without iOAT. I need this treatment to manage and beat my opioid use disorder. 213. Without iOAT, Ervin would be on the streets being sexually exploited and spending her days finding and injecting opioids. Ervin has “no future without iOAT” and is likely to die of an overdose death or through a violent encounter on the streets without access to the treatment.

iii. Byron Bird 214. Bird is “petrified” at the prospect of iOAT’s closure and testifies that if he is no longer able to access the therapy he will be:263

261 Affidavit of Taylor Anthony Maxey, sworn August 25, 2020 at ¶48. 262 Affidavit of Amanda Frances Ervin, sworn August 8, 2020 at ¶¶40-48. 263 Affidavit of Byron Bird, sworn August 25, 2020 at ¶¶33-36. -54-

back on the streets using opioids. I am certain I will die of an opioid overdose like my friends. I will lose my housing, and my health will deteriorate as it did before. I will be exposed to the violence and uncertainty of the streets. I will return to a living a difficult, brutal, and likely shorter life.

There is no chance for me to achieve my goal of sobriety without iOAT. I have tried all sorts of other treatment programs and failed. iOAT is the only one that I have managed to see progress on. There is finally a path towards recovery and now it is being taken away from me.

Shutting the doors to iOAT means closing the doors on me. It is a death sentence to people living with severe opioid use disorder like me who managed their illness through the program. It signals to us that our lives don't matter after months and years on a program that demonstrated to us that it did. The decision to close iOAT is devastating.

215. For Bird, shutting down iOAT is “a death sentence.”264

iv. Caitlynn Westgard 216. The main fear Westagard has regarding the closure of iOAT is that she will die of an opioid overdose or be killed on the streets in a violent encounter over her drug use. Westgard’s housing in dependent on not using street drugs, and without iOAT, she knows she will return to using street sourced opioids and will likely return to the streets:265

If the iOAT program is shutdown, I will go back to using opioids on the streets. I have not yet overcome my opioid use disorder. I am still dependent on opioids. Without the iOAT program providing me hydromorphone, I will have to return to the streets to find opioids to satisfy my urges.

My housing is dependent on me not using illicit street drugs. The hydromorphone I receive through iOAT is medically prescribed. I can use it without fear of being kicked out of my home.

But, once the iOAT program stops, I will start buying and using opioids on the street. Once my housing provider finds out, I will be removed from my home. I will be back on the streets.

All the progress I have made in managing and overcoming my opioid use disorder will be lost. I will return to the life I escaped, including engaging in survival sex work. It is the only skill I have to make money to support my opioid addiction.

Street opioids are really bad right now and people are overdosing frequently. Being prescribed hydromorphone through iOAT has allowed me to avoid using street opioids. Without iOAT, I would also be using them, and it is almost certain that I would experience overdoses and die.

264 Affidavit of Byron Bird, sworn August 25, 2020 at ¶36. 265 Affidavit of Caitlynn Westgard, sworn August 8, 2020 at ¶¶42-49. -55-

On the streets, I will be sexually harassed and assaulted again. I will be robbed and be subject to violence on a daily basis. I will either die of an overdose or of a violent encounter with a john or someone else. This is my future if the iOAT program is shut down.

If the iOAT program is shut down, I will lose all the hope I had for a better future. I will lose my future. My life will be consumed by finding and using drugs, and having sex with strangers to buy drugs.

Returning to the streets is returning to hell. I will live a terrible and dangerous life, and likely die soon and suffer a violent and preventable death.

v. Dustin Wesley Anderson 217. Anderson is “terrified” of the prospect of iOAT shutting down in March 2021.266 Anderson does not want to return to the streets. He does not want to return to a life of crime to support his opioid dependency. However, Anderson main fear is that without iOAT, he is likely to die to an opioid overdose:267

I am terrified of the plan to shut down the iOAT program in March 2021. My progress has been fragile and I am not ready to be cut off and transitioned to alternative treatments that I have already failed.

If the iOAT program ends, I will be back on the streets committing crimes to support my opioid habit. I will either die of an overdose after using unsafe opioids, being jail for crimes committed to support my opioid dependency, or in hospital because I suffered a serious injury after using unsafe opioids or being attacked on the streets. This the future I look forward to if the iOAT program ends March 2021.

I do not want to return to the life I had on the streets. I do not want to commit crimes or return to jail. I do not want to die. I am about to turn 30 and want to have a family and live a long, meaningful life. This won’t be possible if the iOAT program is shut down. 218. Anderson is only 29 years old and wants to live longer.

vi. Fabian Pole 219. Pole deposes that he has not overcome his opioid use disorder and ending iOAT would mean that he would return to injecting street opioids and the inherent risks associated with consuming them:268

I have not overcome my opioid use disorder. The progress I have made is fragile. I know that I will return to street use of fentanyl and other drugs if the iOAT program is shut down. I know that my frequency and amount of opioid use will surge back to what it was before I started on the treatment. I know that I will use unsafe opioids and in a manner where there is a risk of contracting illnesses. I know that opioids will once again consume my life, and dictate everything I do.

266 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶29. 267 Affidavit of Dustin Wesley Anderson, sworn August 9, 2020 at ¶29-31. 268 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶40-45. -56-

My housing is dependent on me not using illicit street drugs. The hydromorphone I receive through iOAT is medically prescribed. I can use it without fear of being kicked out of my home.

But, once the iOAT program stops, I will start buying and using fentanyl and other opioids on the street. Once my housing provider finds out, I will be removed from my home. I will be back on the streets. It is even possible that I may just leave my housing myself because I rather use my AISH money to pay for drugs than rent.

I will return to having overdoses. Street opioids are really bad right now and people are overdosing frequently. Being prescribed hydromorphone through iOAT has allowed me to avoid using street opioids. Without iOAT, I would also be using them, and it is almost certain that I would experience overdoses.

It is almost certain that I would die on the streets from an opioid overdose. It is scary to think about. I don’t want to die on the streets of an opioid overdose. I am not even 25 years old. I want to live a full and long life. I want to do things like reconnect with my family, and start one myself. That is just not possible if I return to opioid use on the streets.

If the iOAT program is shut down, I will lose all the hope I had for a better future. I will lose my future. My life will be consumed by finding and using drugs. That is all you do on the streets. You do not have the luxury of having dreams. You just do what you need to survive and use drugs. That is all that you can think about. It drives everything you do. Returning to that life tears me up inside. I don’t want that to happen. 220. Pole wants to live a longer, fuller, and more meaningful life, and this will not be possible without iOAT.

vii. Gary Wayne Fiddler 221. Fiddler fears that he will die if he returns to using street-sourced opioids or experience a range of other health and social harms:269

I am scared of losing the iOAT program. I do not want to go back to my previous life of waking up every day in an endless cycle of sustaining my dependency through the use of unsafe street opioids. I have made a lot of progress on iOAT but I worry that it will not take much to fall back into street drugs. I am still in a fragile place and suffer from opioid use disorder.

I fear that I will die if l return to using drugs on the street. I may overdose and die, especially given how unsafe street opioids are now. I fear that I may be killed over street drugs. The streets are a difficult place for a 56-year-old man with serious health issues. Returning to that life will certainly mean that I won't live much longer.

I am terrified of returning to a life where my days are defined by finding and using drugs. While being on iOAT, I discovered that a different life is possible. I could be more than that person on the street hustling to find drugs. I do things now such as horseback riding and being in nature. I have a purpose now in life. However, that will be taken away if the iOAT program is shutdown. All the progress I made over the past 2 years will be lost. The

269 Affidavit of Fabian Pole, sworn August 8, 2020 at ¶¶31-35. -57-

iOAT program is my only chance to become opioid free and live a longer, more fulfilling life.

The government gave me hope when they started the iOAT program. The iOAT program is saving so many lives and it is something so beautiful. Taking away iOAT undermines the dignity and human rights of the vulnerable individuals who rely on the program. It makes us feel like our lives are worthless and not worth saving. It is not fair. I don't want to be on the streets and die of an opioid overdose. I want to manage and overcome my opioid dependency, and live the life that iOAT showed me that I can live.

viii. Gary Lorne Creor 222. For Creor, “losing access to iOAT would be a death sentence.”270 It would only be a matter of time before he overdosed and died from street-sourced opioids:271

Losing access to iOAT would be a death sentence. I will be back on the streets buying and using opioids. Opioids that are extremely dangerous. I would have no other choice, as there would no other way to stabilize my opioid use disorder. My cravings would force me into inherently dangerous situations of using unsafe street drugs in hazardous settings. I know what this illness can do to people. I know it would force me to return to the life the iOAT helped me escape.

I have seen at least 40-50 people overdose in my life. I know at least 10-15 people personally who have overdosed died in the past 2 years. The people who died were the exact same as me.

iOAT saved my life. Without iOAT, it was only a matter of time before I overdosed and died off of street opioids. I would be returning to that life if iOAT shut down.

I am finally living a good life. I can be around my son healthy and stable. I will lose this when iOAT is shut down.

By shutting down iOAT, the government is sending us back to a dark place. A place worse than hell. I would lose all the progress I acquired, and likely die.

ix. Keigan Tierney 223. Tierney still requires iOAT therapy, or he will revert back to using street-sourced opioids because no other form of treatment can stabilize or allow him to manage his severe form of opioid use disorder. If Tierney returns to injecting street opioids, he will be exposed to the health and social harms that he managed to escape while being on iOAT:272

I am not ready to leave the iOAT program. I still need this treatment. Without it, I will revert back to street drug use. I will lose all the progress I have made, and return to a life where violence and death is normalized. Where I will have to use violence or experience some form of violence to survive. Where I will support my drug dependency through crimes. I do not want to return to my old life.

270 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶36. 271 Affidavit of Gregory Lorne Creor, sworn August 25, 2020 at ¶¶36-40. 272 Affidavit of Keigan Tierney, sworn August 8, 2020 at ¶¶35-40. -58-

I know it is in me to hurt people. I am scared that I may turn back into a person that can hurt people and I don't want to become that person. I do not want to go to jail for the rest of my life for doing something because of my drug dependency.

I do not want to return to stealing, cheating, and lying to others, including my family. I do not want to lose them again. I do not know what will happen to me if I lose their trust again.

I worry about overdosing and dying. I worry about being murdered. I worry about catching HIV or another disease. I do not want to die this way. I do not want to die young.

I do not want to lose this path that I am on to recovery and sobriety. I have a real possibility of returning to a stable and nurturing life where I can have normal relationships and have ambitions and dreams that extend beyond simply finding and using drugs.

iOAT has given me hope for a future. By taking away iOAT, I am losing the only real possibility that I have for a longer, drug and violence free life. The loss of iOAT may literally mean that I may die soon, or face a difficult life in jail or on the streets. Death is actually a better option than returning to the streets with my drug dependency and being forced to find and use drugs like I did before. x. Michael Shane Carson 224. Without iOAT, Carson will revert back to using street drugs, a life with no future or security, where he is likely to die of an opioid overdose from the injection of street opioids:273

Losing the iOAT program terrifies me. I am in a fragile place and could revert back into injection therapy offered by the iOAT program at any time.

However, if the iOAT program closes, it means that I will likely have to go back to using street drugs. I am not stable on my own. Without iOAT, I will have to return to that life that I escaped. A life with no real future or security, a life where my day to day is focused on finding a way to buy and use drugs, and living and struggling on the streets to fund my drug dependency.

I fear that all the progress I made in the last year will be lost. That I will return to crime, and engage in unsafe drug use practices such as sharing drug use gear and using contaminated drugs.

I fear that I will die if l return to using drugs on the street.

I do not want to die. iOAT has given me something to live for. It has given me hope and aspirations. It has shown me that my life is worth living. It has shown me that I can achieve goals and live a normal, loving life.

My biggest fear is dying before my elderly father passes away. I talk to him regularly and he is so proud of my progress. I do not want him to see me die of a drug overdose or violence related to my drug dependency. I do not want him to see me fall back into unsafe street drug use. I do not want to cause him any more pain.

273 Affidavit of Michael Shane Carson, sworn August 8, 2020 at ¶¶40-45. -59-

xi. Shane Paul Monette 225. Monette’s primary concern is that he will die if iOAT is shut down:274

I am concerned that I will die if iOAT is shut down. I am not stable yet. I still have dependency issues. I will go back to street opioid use if iOAT is closed. I fear that if l do, I will overdose and die, or be subject to some sort of violence related to my drug use and be killed. The other alternative is perhaps being arrested for crimes that I would need to commit to support my $400 a day heroin habit.

I am afraid of losing this new life that I built. I have made significant strides and I am proud of the person I have become on iOAT. I don't want to stop being that person. I am more than my opioid use disorder, and iOAT has made me realize that and ensured that I am living my best life. I don't want to return to that hell that I was living before.

xii. iOAT Patients Never Informed of End Date 226. Despite labeling iOAT as a trial, iOAT patients were never informed that the treatment would end after a fixed period of time.275 Instead, iOAT patients were advised that that they would have access to the treatment until they were fully treated of their opioid use disorder.276

227. For this reason, the announcement that iOAT would come to an end in March 2021 was as a “complete shock.”277 Patients never anticipated that the program would stop in an arbitrary manner; they expected to continue to receive the treatment until they no longer needed it from a medical perspective.278

228. A clinical staff member at the Calgary iOAT clinic who completed the intake process for incoming patients confirms that neither the intake forms nor the intake procedure she followed required staff to inform patients that there was an end date for the treatment.279 The staff member deposes that “the end of treatment date for iOAT clients and this decrease in core services and wraparound care was never disclosed to patients on their intake.”280 In fact, “clients never consented to a set end date, an expectation to transition to oral therapy, nor did they consent to a decrease in care after March 31, 2021.”281

274 Affidavit of Shane Paul Monette, sworn August 19, 2020 at ¶¶30-31. 275 Affidavit of Taylor Anthony Maxey, sworn November 19, 2020, at ¶3 and Affidavit of Darcy Vernon Cranston, sworn October 18, 2020 at ¶2. 276 Affidavit of Taylor Anthony Maxey, sworn November 19, 2020, at ¶¶3-4; Affidavit of Darcy Vernon Cranston, sworn October 18, 2020, at ¶¶2-3; and Affidavit of Patty Wilson, sworn November 20, 2020 at ¶12. 277 Affidavit of Taylor Anthony Maxey, sworn November 19, 2020, at ¶8. 278 Affidavit of Darcy Vernon Cranston, sworn October 18, 2020 at ¶3. 279 Affidavit of Patty Wilson, sworn November 20, 2020 at ¶12. 280 Affidavit of Patty Wilson, sworn November 20, 2020 at ¶12. 281 Affidavit of Patty Wilson, sworn November 20, 2020 at ¶12. -60-

229. The reason why iOAT patients were never informed of an end date for the therapy is that the program was established in relation to the best medical practices for treatments of this nature. The CRISM National Guidelines advises that iOAT “be provided as an open-ended treatment, with decisions to transition to oral opioid agonist treatment made collaboratively with the patient.”282 Further, the medical standards developed by the College of Physicians and Surgeons of Alberta for iOAT mandates that (emphasis added):283

the use of iOAT should be considered an integral component of the continuum of care for OUD [opioid use disorder], rather than a response to the opioid overdose emergency. The expansion of OUD treatment programs to include iOAT must be implemented in a way that supports long-term sustainability. 230. There are no iOAT programs operating in the world that requires patients to transition to alternative treatment options within a fixed period of time.284

231. The Co-Chair of MOERC deposes that the commission never recommended nor was it under the impression that HMQA would simply cancel the program within a fixed period of time. iOAT was introduced on a phased implementation schedule, so that “the programs could potentially be expanded to accommodate more patients and other injectable formulations (e.g. diacetylmorphine), pending confirmation of patient benefit and the availability of additional funding.”285 MOERC operated on the understanding that “that AHS would operationalize their iOAT proposal in alignment with scientific evidence and medical best practice,” including an open-ended treatment timeline.286

232. From the perspective of MOERC’s Co-Chair, there is no likelihood that AHS has been operating iOAT with the expectation that the program would end and that patients would transition to oral medications within a fixed time period.287 This would run counter to:288

scientific evidence, international best practice, and medical ethics to pilot iOAT under a mandate that the program end in two years and that all patients be subsequently transitioned to oral medications (despite the assertion by HMQA, in their November 16, 2020 letter, that the iOAT pilot program was not designed to continue indefinitely). This is because the efficacy of iOAT as a treatment option for severe, refractory opioid use disorder is already established, and the target population of this treatment is patients who have not been able

282 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶63. 283 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶9. 284 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶10. 285 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶7. 286 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶7. 287 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶12. 288 Affidavit of Elaine Hyshka, sworn November 22, 2020, at ¶11. -61-

to achieve sustained remission with oral opioid agonist treatment, or for whom oral medications are contraindicated.

2. The Clinical Staff at iOAT

i. Dr. Krishna Balachandra 233. Based on Dr. Balachandra’s personal and professional medical experience, he deposes that HMQA’s decision to shut down iOAT will result in the following harms:289

The capacity of the Edmonton program was 60 patients. With the announcement of cessation of funding in March 2021, patients have begun to disengage with the program. One patient who was discharged has died. The consequences of not having such a treatment option include homelessness, incarceration, greater health care costs, and ultimately premature death. Without iOAT, the health care system will be unable to treat a subset of patients or engage them into treatment which could result in increased health care and criminal justice costs and premature death.

234. Even on the announcement of iOAT’s closure, patients started disengaging with the program in an attempt to cushion a sudden transition from iOAT therapy to returning to use street- based opioids. One Edmonton iOAT patient died in the circumstances:290

with the announcement of the closure of iOAT in Alberta, a number of patients have disengaged with the services offered at the Edmonton iOAT Clinic. Many are aware that there is no alternative treatment option for their severe opioid use disorder and that they will return to street opioid use if iOAT is shutdown. However, to avoid an immediate transition from iOAT to street opioid use, which could be life threatening if done so abruptly, many have returned to their street opioid use in a gradual manner. In doing so, they have exposed themselves to the inherent dangers with street opioid use, including overdose death.

235. Dr. Balachandra testifies that as more patients start to disengage with iOAT as the March 2021 deadline approaches or are removed from the program by HQMA, they will relapse back into street opioid use and die or suffer serious health harms.291

ii. Dr. Susan Bornemisza 236. Dr. Bornemisza deposes that iOAT patients started to disengage with the therapy once the announcement was made that the program would come to an end in March 2021. Health and social

289 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶17. 290 Affidavit of Krishna Balachandra, sworn September 9, 2020 at ¶17 and Affidavit of Krishna Balachandra, sworn September 27, 2020 at ¶¶5-7. 291 Affidavit of Krishna Balachandra, sworn September 27, 2020, at ¶¶5-7. -62-

outcomes for patients will only get worse, and in many cases fatal, if there is no more access to iOAT in the province:292

We are already seeing the impact of the proposed end of Calgary iOAT Clinic in March 2021. Patients no longer feel valued and safe and are not accessing services and support still available. We represent hope for patients who felt hopeless previously. We have seen patients no longer accessing services and returning to street sourced drugs and their prior lives, which were marked by violence and the precarity of living on the streets and being consumed with buying and using street opioids.

All of our patients have significant mental health concerns and have experienced significant trauma throughout their lives. This makes many of them unable to participate in standard addiction treatment. I believe iOAT has been life saving for many of our patients and allow us to move forward with addiction treatment innovation, which is requires to confront the continually evolving drugs that we are constantly contending with in Alberta. In my professional opinion, which is informed by my experience and review of the academic literature, the closure of the Calgary iOAT Clinic will result in its current patients suffering a range of adverse health symptoms, including increased disease burden, trauma, and a greater risk of death from reverting to street-sourced opioids.

237. Further, the manner in which the announced closure of iOAT occurred, how it is being implemented, and the COVID-19 pandemic are further exacerbating the condition of patients:293

Since the announcement of the impending closure in March 2020, clients of the Calgary iOAT clinic have demonstrated a considerable destabilization in their mental health and in their substance use disorder. This destabilization far exceeds the expected relapse and remission expected for mental health and substance use disorder and exceeds the severity of relapse I have witnessed in my other clinical settings even during COVID-19 pandemic. It is my opinion that the severity of this destabilization is directly linked to the announcement of the closure of the Calgary iOAT Clinic and the threat of losing access to their life-saving medication.

Additionally, Alberta Health Services (“AHS”) and Alberta Health (“AH”) have instructed Calgary iOAT Clinic to gradually reduce the number of clients we serve with each reporting period with a goal to have our patient count to zero by March 2021. We have been required to transition clients out of Calgary iOAT Clinic ahead of recognized clinical guidelines in order to meet these requirements. This has caused further anxiety among patients and accelerated a decline in their mental health. Any further delay will result in further deterioration in client’s health as well as the Calgary iOAT Clinic in being forced to comply with AHS and AH’s demands of ongoing reduction in patient numbers.

Due to the COVID-19 pandemic, this caused a considerable delay in our efforts to connect with Nanda & Company. As frontline healthcare workers we were responsible for the response to the pandemic for the most vulnerable Albertans and had to temporarily prioritize the COVID-19 pandemic over the opioid pandemic. This vulnerable and marginalized population is experiencing both pandemics simultaneously and cannot tolerate a delay in the decision about extending services at the Calgary iOAT Clinic beyond March 2021.

292 Affidavit of Susan Bornemisza, sworn September 22, 2020 at ¶¶12-14. 293 Affidavit of Susan Bornemisza, sworn October 3, 2020 at ¶¶2-4. -63-

iii. Patty Wilson 238. Wilson provides a detailed account of the harms that iOAT patients will experience if the treatment is no longer offered in Alberta:294

The proposed end of Calgary iOAT Clinic in March 2021 represents a particularly dangerous time for clients’ access to treatment to end. Not only does research support an open-ended approach to treatment, otherwise all benefits are lost, but the existing clients will need to return to street-sourced drug use due to the pathophysiology of opioid use disorder. Since the COVID-19 pandemic has been declared in Canada, the street-sourced drug supply has become increasingly toxic and more expensive which will necessitate increased involvement in criminal activity for patients to access street-sourced drugs and an extremely high risk of fatal overdose.

Additionally, cessation of access to IV hydromorphone will only allow patients to access oral options such as buprenorphine/naloxone, methadone, and kadian. All iOAT Clinic patients have failed these treatments before and an abrupt halt to IV hydromorphone treatment will only grant them access to therapies that have proven non-beneficial. Further, due to their severe opioid use disorder, most Calgary iOAT clients have extremely high tolerance to opioids. This will necessitate high doses of oOAT in order to meet their opioid tolerance which may not be possible without considerable side effects that result from high doses of these medications. In other words, oOAT will not be sufficient to meet the opioid tolerance of Calgary iOAT Clinic patients and they will need to use street-sourced opioids.

The British Columbia Centre for Substance Use has released a Guidance Document that does contain a section guiding prescribers on prescribing oral hydromorphone for patients that can be injected in response to the COVID-19 pandemic. However, this is not meant to be a replacement for an iOAT Clinic. The Guidance Document clearly outlines that this is not meant to be treatment and is only approved during COVID-19. Additionally, the dosages outlined in this Guidance Document are too low to meet the opioid tolerance of Calgary iOAT Clinic patients.

Withdrawal management alone (stopping all medication both oral and IV hydromorphone) is absolutely not recommended. This leads to higher rates of relapse, HIV infection, hepatitis C infection, and both fatal and non-fatal overdoses when compared to any other treatment.

In my professional opinion, based on my experience and review of the academic literature, the closure of the Calgary iOAT Clinic will result in its current patients suffering a range of adverse health symptoms, including a greater risk of death from reverting to street- sourced opioids. 239. In an affidavit sworn October 3, 2020, Wilson provided additional evidence of the rapid deterioration of iOAT patients since the announced closure was made, and how their condition will only get worse as the March 2021 deadline approaches and iOAT is no longer offered in Alberta:295

294 Affidavit of Patty Wilson, sworn September 11, 2020 at ¶¶16-20. 295 Affidavit of Patty Wilson, sworn September 11, 2020 at ¶¶3-8 and ¶¶10-11. -64-

The client population that accesses iOAT medication, including the Plaintiffs, experiences extreme marginalization and social instability, which I outlined in my previous affidavit. Due to the social instability, physical and mental health disorders that result from the stigma and trauma people with opioid use disorder experience and understanding the length of time that a trial may take, not all iOAT patients in Calgary are able to participate in this lawsuit as litigants. I personally know of many other Calgary iOAT patients who want to participate in this lawsuit as plaintiffs but do not have the capacity to make that happen. The named Plaintiffs in this lawsuit from the Calgary iOAT Clinic represent the most stable of the existing clients from a mental health and opioid use disorder perspective.

As the March 2021 deadline for the closure of iOAT approaches, the mental and physical health of iOAT patients are rapidly deteriorating. This is because many are concerned over the closure of iOAT and don’t believe that there are any alternatives aside from returning to street opioids to medicate their opioid use disorder and all the risks and dangers that are associated with street opioid use. As I set out in further detail below, some have already transitioned or are in the process of transitioning to street opioid use as an attempt to buffer what could be an abrupt, dangerous move from iOAT to street opioids. iOAT has likely impacted the opioid tolerance of patients, and an immediate return to street opioids could result in overdose death or other serious harms. However, once patients start using street opioids more regularly, then they will experience rapid mental and physical health decline that will be difficult to reestablish.

That is why there is an urgency among iOAT patients involved in the program at this time to obtain clarity as to the whether they will be able to access the treatment after March 2021. They need to know if they should be starting the transition to street opioids immediately to avoid the harms associated with a truncated switch from iOAT to street opioids.

For instance, an iOAT patient involved in this proceeding, the Plaintiff Amanda Frances Marie Ervin (“Ervin”), has deteriorated significantly over the past few weeks. Ervin’s mental health has declined rapidly over the government’s insistence that the iOAT program will end in March 2021 and she has returned to using street opioids. As a medical expert who has worked with Ervin for over a year, I am concerned about her health and survival. I also attribute Ervin’s deterioration to the looming iOAT closure deadline and the hopelessness she expressed to me over her future and ability to manage her opioid use disorder if that occurred. Many other iOAT patients have expressed similar concerns to me, including other Plaintiffs.

Multiple iOAT patients inform me and I believe true that their street-sourced fentanyl use increased after the announcement of the closure of the Calgary iOAT Clinic. The rationale behind this decision was not explored with these clients at the time but based on my clinical experience with this population, I can hypothesize the following reasons.

a. due to the variability of street-sourced opioids, finding a consistent and least- toxic seller (dealer) is a challenge, especially when starting or restarting street- sourced opioids. The process for learning how to prepare and safely administer street-sourced opioids versus pharmaceutical-sourced (such as intravenous hydromorphone) is very different, evolving, and has a learning curve that can be forgotten if someone has not injected street-sourced in recent months and, if done incorrectly, increases the risk of fatal overdose.

b. further, in order to increase safety with street-sourced opioids, people with opioid use disorder are encouraged to use with others who are able to reverse an opioid overdose if this occurs while they are injecting. Many people who stop using -65-

street-sourced opioids also reduce or stop contact with people who continue to use street-sourced opioids to support their sobriety but, in order to use street-sourced opioids as safely as possible, contact with this network of people needs to be re- established.

The choice to return to street-sourced opioids now, while still maintaining access at Calgary iOAT is a safe choice on the part of these clients. It demonstrates forward thinking and preparation for the toxic drug supply that will become their only source of opioids in March 2021. What I am outlining is that the choice the return to street-sourced opioids at the announcement of Calgary iOAT Clinic may appear to be impulsive and dangerous but is actually a safe choice if the motivations and knowledge of street culture is understood. As stated previously in my other affidavit, this is a population that will need to return to injecting street-sourced opioids if unable to access intravenous hydromorphone and this return to street-source opioids now is their attempt at safety for the inevitable reliance on only street sourced opioids…

There has never been a more deadly time to be forced to use street-sourced opioid and the closure of Calgary iOAT Clinic will not only force the existing clients to use street-sourced opioids that have a high chance of killing them but also blocks those who continue not to benefit on oral therapies from accessing the full range of OAT during the Alberta’ most lethal time in the opioid epidemic.

Additionally, once discharged from the Calgary iOAT Clinic in March 2021, the support for former Calgary iOAT clients will be limited. Due to COVID-19, most treatment and detox centres are operating at reduced capacity due to social distancing requirements which has created a backlog. Most clinics that serve populations that experience marginalization and substance use disorder within Calgary are less accessible to this population due to an increased reliance on phone appointments (which requires reliable access to a phone and phone service), limited onsite visits, or reduced clinic hours. The Q2 2020 Opioid Surveillance Report has given us indirect evidence of how severe these limitations can be for this population. The use of safe consumption sites in Calgary between Q1 and Q2 decreased by 34%, presumably because of COVID-19 restrictions that were required such as physical distancing and limiting the number of staff and clients on site. In other words, due to reduced accessibility of programs, reduced appropriate clinical support, not only will former Calgary iOAT clients be under supported when Calgary iOAT Clinic closes, they will be under-supported during the deadliest point in the opioid epidemic that has occurred in Alberta to date and be unable to access harm reduction services that may help in reversing some of the opioid overdoses they will inevitably experience.

3. Expert Evidence on the Impacts of iOAT’s Closure

i. Dr. Meera Grover 240. Dr. Meera Grover (“Dr. Grover”) is a licensed family physician in Calgary who works primarily with street-involved individuals who have an array of substance use disorders, including opioid use disorder.296 Dr. Grover is trained in and works in addictions medicine, and provides primary care and other services to patients accessing iOAT therapy in Calgary.297

296 Affidavit of Meera Grover, sworn September 23, 2020 at ¶¶1-7. 297 Affidavit of Meera Grover, sworn September 23, 2020 at ¶¶1-7. -66-

241. Dr. Grover, based on her academic and medical training and experience, finds that iOAT patients in Alberta will experience the following adverse health and social impacts if the program is cancelled:298

The Calgary iOAT clinic is the only community-based permanent clinic in Calgary that is approved to provide iOAT treatment at this time. Addiction medicine physicians are expected to provide this care based on the available guidelines, and the only way for physicians to legally provide this service is through the Calgary iOAT clinic. To remove the clinic denies physicians the ability to practice according to best practice or national guidelines. It sets back addictions medicine in Alberta to a standard below the nationally recognized level of care for patients living with opioid use disorder.

In addition, my professional experience supports the available evidence as described in the guidance documents. iOAT is the only form of treatment for a subset of individuals living with opioid use disorder, and in many cases, is life saving treatment.

I have had several patients who have received treatment at the Calgary iOAT clinic and have had positive outcomes, including reducing the severity of their opioid use disorder, increased engagement with the health care system, improved quality of life, increased ability to maintain housing, and curative treatment of Hepatitis C, which can otherwise be fatal.

From a shelter and acute care medicine perspective, iOAT is also incredibly cost-effective. Having an iOAT clinic that will follow patients in community has facilitated several accelerated hospital discharges, where I have been consulted, that would otherwise have cost taxpayers much more due to prolonged hospital stays.

There are also several patients whom I have referred to iOAT who have not been able to access it due to the planned closure of the clinic. These patients have struggled significantly, and it is very difficult to explain to them that I cannot use all available treatment options for their illness due to the planned closure for the clinic. These patients are at major risk of opioid toxicity (or, overdose), and some have unfortunately already died or become disabled by opioid toxicity. The available evidence suggests that fewer of these patients would have died had they been treated at an iOAT clinic.

The closure and denial of continued access to iOAT will have significantly adverse impacts on the patients who currently rely on its services and those Albertans who suffer from the form of opioid use disorder that can only be treated through iOAT.

ii. Dr. Donald Scott McDonald 242. Dr. Donald Scott McDonald (“Dr. McDonald”) is a physician licensed with the British Columbia College of Physicians and Surgeons.299

298 Affidavit of Meera Grover, sworn September 23, 2020 at ¶¶20-25. 299 Affidavit of Donald Scott McDonald, sworn September 23, 2020, at ¶¶1-4. -67-

243. Dr. McDonald is a pioneer in the treatment of opioid use disorder. Dr. McDonald has led many studies and trials into opioid use disorder treatments in Canada, including in relation to methadone and iOAT therapy.300

244. Dr. McDonald acted as the physician in attendance and eventually the physician lead with the Providence Crosstown Clinic, which is the clinic where many of the early Canadian trials and studies were conducted of the efficacy of iOAT therapy in Canada.301 This includes the North American Opiate Medication Initiative (“NAOMI”) and Study to Assess Longer-term Opioid Medication Effectiveness (“SALOME”), trials and studies that have informed the accepted medical standards and best practices for iOAT treatment in North America.302

245. Alberta’s iOAT treatment is based largely on the findings and approaches to the therapy developed and practiced at the Providence Crosstown Clinic under Dr. McDonald’s guidance.303

246. Dr. McDonald, for the purposes of this application, was asked for his expert opinion on what the consequences would be for iOAT patients if they are denied continued access to the therapy past March 2021:304

If patients in Alberta who are receiving iOAT treatment are denied continued access to the form of therapy, the risk of mortality for these individuals will increase. Based on my medical expertise and experience at PCC, I would predict that some of the patients will suffer premature and preventable deaths. This would be consistent with what happened to some participants of the NAOMI study, who no longer had access to iOAT treatment at the conclusion of the trial. These patients relapsed back into illicit street opioid use because methadone was an ineffective form of treatment for them. I am confident that the same would happen to patients of the iOAT program in Alberta, especially if they have not responded positively to methadone or suboxone in the past, which would be the remaining forms of treatment available to them along with abstinence.

However, patients of the Alberta iOAT program who do not die and are unable to effectively transition to alternative forms of therapy will suffer a variety of harm. They may develop illnesses and disabilities from returning to illicit, street opioid use, including Hepatitis C, HIV/Aids, infections, homelessness, and a variety of other health and social harms.

I would also predict some people will return to crime. From my experience, the bulk of the savings to society in providing iOAT is in the criminal justice system. Namely, reduced policing, court and incarceration costs are seen. These savings will be lost if participants of the iOAT program in Alberta are no longer provided access to this form of treatment.

300 Affidavit of Donald Scott McDonald, sworn September 23, 2020, at ¶¶4-13. 301 Affidavit of Donald Scott McDonald, sworn September 23, 2020, at ¶¶4-13. 302 Affidavit of Donald Scott McDonald, sworn September 23, 2020, at ¶¶4-13. 303 Affidavit of Elaine Hyshka, sworn October 1, 2020, at ¶62. 304 Affidavit of Donald Scott McDonald, sworn September 23, 2020, at ¶¶33-35. -68-

247. Dr. McDonald bases his expert opinion on a number of experiences, including his personal involvement with the NAOMI study. At the end of the NAOMI study, participants were denied continued access to iOAT. As a result, many patients relapsed into illicit opioid use and experienced a variety of harms that iOAT had allowed them to avoid. According to Dr. McDonald, iOAT patients in Alberta denied access to the therapy past March 2021 will face similar adverse health and social effects.

iii. Dr. Rupinder Brar 248. Dr. Rupinder Brar (“Dr. Brar”) is the Interim Medical Director of the Regional Addictions Program with Vancouver Coastal Health.305 Dr. Brar is also the medical lead of the iOAT program for the Vancouver Coastal Health region, the oldest and largest iOAT program in North America. Dr. Brar is also a Canadian Addictions Medicine Research Fellow with the British Columbia Centre on Substance Use.

249. Dr. Brar has extensive experience with iOAT as a physician working in iOAT clinics in Vancouver and through her research and training.

250. Based on Dr. Brar’s medical experience and research, it is her opinion that with the closure of iOAT in March 2021, participants of the program will experience the following health and social harms:306

In my opinion, the closure of iOAT will cause significant negative health and social consequences for existing iOAT patients. The same negative health and social impacts will be felt by those living with severe opioid use disorder who need this form of treatment to manage and stabilize their condition. iOAT has been shown to reduce illicit opioid use, decrease engagement in crime, and improve psychosocial well-being. Without access to iOAT, existing patients and those who require this treatment will face an increased risk of street opioid use, an increased risk of opioid overdose leading to death, an increased risk in acquiring diseases or illness from street opioid use, and the loss of economic and social stability.

There are also broader health benefits for individuals receiving iOAT. iOAT can help stabilize an individual’s opioid use disorder, allowing for engagement and treatment of their broader and incidental health issues. This includes treating infections, diabetes, mental health issue, and a number of other ailments. By stabilizing an individual’s opioid use disorder, we can address their other pressing health concerns. However, closure of this program will prevent these individuals from seeking necessary treatment for these ailments.

In my opinion, the closure of iOAT will cause serious adverse health and social impacts on existing participants of the program and those who qualify for the treatment. Among the

305 Affidavit of Rupinder Brar, sworn October 2, 2020 at ¶¶1-2. 306 Affidavit of Rupinder Brar, sworn October 2, 2020 at ¶¶16-18. -69-

potential health impacts is death, which is a greater possibility given the increased contamination of street opioids and rise in opioid overdose related deaths in Alberta.

iv. Dr. Haitham Kharrat 251. Dr. Haitham Kharrat (“Dr. Kharrat”) is a family physician with advanced addictions training and certification who has practiced inner city, addictions medicine with vulnerable populations in Abbottsford, Vancouver, and Edmonton.307

252. Dr. Kharrat has experience treating patients with severe opioid use disorder and has provided iOAT therapy to patients in Alberta and British Columbia.

253. Dr. Kharrat was retained to provide his expert opinion on the impacts of denying iOAT therapy will have on patients of the program, including the Plaintiffs:308

It is my opinion that by discontinuing Alberta’s iOAT program, patients with severe opioid use disorder will have no available or effective treatment options while admitted to hospital. This in turn will lead to difficulties in engaging patients in their acute inpatient care as they will have to frequently leave hospital to self-manage their pain or cravings with the use of illicit opioids. This will not only increase their risk of death while using from the illicit drug supply, but will also prolong and complicate their hospital stays, interrupt their treatments and lead to more costly complications developing during their admissions.

Furthermore, for patients who have stabilized and minimized their illicit opioid use while on the iOAT program – cessation of this will directly lead to overdose, as tolerance to higher potency opiates such as fentanyl and carfentanil will have been lost while on the program, thus putting these patients at direct risk for overdose when they return to the illicit supply. Patients are also more likely to return to criminal activity and survival sex work in order to finance their opioid requirements.

Oral opioid agonist therapy or withdrawal therapy is not a suitable replacement to transition patients off of iOAT. These patients have demonstrated severe treatment-refractory opioid use disorder and a failure to stabilize on oral therapies and de-intensifying their treatment can directly lead to increased morbidity (such as HIV and Hepatitis C infection), overdose and death.

As mentioned, provincial and national guidelines recommend iOAT as the standard-of-care for treating severe OUD, and Alberta patients should be offered the standard-of-care like all others. It is vital that we continue to offer this life-saving treatment for patients where other options have been ineffective or this opioid epidemic will continue to claim the lives of these often marginalized and stigmatized patients.

It is my opinion, based on clinical experience and literature review, that cessation of the iOAT program will not only lead to difficulties in engaging patients in inpatient-based care, more costly admissions and incomplete treatment of acute medical problems, but also lead

307 Affidavit of Haitham Kharrat, sworn September 17, 2020 at ¶¶1-8. 308 Affidavit of Haitham Kharrat, sworn September 17, 2020 at ¶¶32-36. -70-

to increased morbidity and mortality of the patients with the most severe form of this illness.

254. Further, Dr. Kharrat reviewed medical studies on the involuntary cessation of iOAT programs and the impact they had on patients and determined that those findings would likely apply to patients receiving iOAT therapy in Alberta:309

Multiple medical studies have shown that when Injectable Opioid Agonist Treatment (“iOAT”) with diacetylmorphine (“DAM”) is discontinued, individuals disengage with the treatment and return to either baseline or higher than baseline street heroin use.

Additionally, patients who were involuntarily transitioned from iOAT to oral methadone reported more street heroin use at the two-year mark than did patients who were voluntarily transitioned, and there was also a significant reduction in treatment retention in the involuntary group.

In my opinion, the closure of iOAT will also lead to a loss of treatment retention for patients who became engaged in iOAT. Further, in my opinion, the discontinuation of iOAT in the Alberta context will lead to patients in the program returning to and increasing their street opioid use. This would expose patients to a dangerous and adulterated unregulated drug supply, increasing their risk of death.

v. Dr. Elaine Hyshka 255. Dr. Elaine Hyshka is an Assistant Professor in the health policy and management stream at the University of Alberta’s School of Public Health whose research speciality is in the area of opioid use disorder and treatment option.310 Dr. Hyshka is one of Alberta’s leading experts on public health policies to treat and manage the opioid overdose epidemic.

256. Dr. Hyshka serves as the Chair of Health Canada’s Expert Advisory Group on Safer Supply of Pharmaceuticals as Alternatives to Illegal Street Drugs.311 In addition, Dr. Hyshka served as Co-Chair of MOERC alongside Alberta’s Chief Medical Officer, which was the provincial body convened to develop and make recommendations to HMQA on how to address the opioid overdose crisis in Alberta. MOERC recommended that HMQA develop and provide iOAT therapy to Albertans suffering from severe opioid use disorder, which was accepted and implemented by the provincial government.

257. Dr. Hyshka provides the following expert opinion on the health and social impacts of ending access to iOAT treatment in Alberta:312

309 Affidavit of Haitham Kharrat, sworn October 4, 2020 at ¶¶2-4. 310 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶1-7. 311 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶1-7. 312 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶¶60-66. -71-

To my knowledge, no scientific studies on AHS’ Edmonton and Calgary iOAT programs have been conducted. Any internal evaluations of these programs undertaken by either AHS or the Government of Alberta, have not been released publicly.

Independent studies would be required to establish the effectiveness of iOAT in Alberta, yet it is reasonable to assume that the Edmonton and Calgary programs achieve comparable outcomes to those found in the international evidence discussed above.

The Edmonton and Calgary iOAT service models closely resemble Vancouver’s Crosstown (iOAT) clinic, which was thoroughly evaluated as part of the NAOMI and SALOME clinical trials, and found to be highly effective for improving health and social outcomes for patients with severe opioid use disorder.

The World Health organization recommends that opioid agonist treatment be open-ended. 106 Similarly, Canada’s national iOAT clinical guideline strongly recommends that the intervention “be provided as an open-ended treatment, with decisions to transition to oral opioid agonist treatment made collaboratively with the patient”.

This recommendation is based on evidence from two post-randomized clinical trial observational cohort studies that found increased illegal opioid use after the end of treatment to levels comparable to controls. A 2003 study by researchers in the Netherlands found that 82% of patients engaged in prescribed diacetylmorphine treatment “deteriorated substantially” within two months of the planned discontinuation of treatment, with most showing a loss of treatment benefit and a return to pre-treatment levels of physical, mental, and social functioning.

In a Canadian study published in 2014, Oviedo-Joekes et al. compared outcomes between people who voluntarily transitioned to oral opioid treatment and those who transitioned involuntarily. One year later, illegal opioid use was higher in the involuntary group and retention in oral opioid agonist treatment was substantially lower.

The impending closure of Alberta’s iOAT clinics is thus expected to negatively impact current patients as well as many other people living with severe refractory opioid use disorder who have not yet been able to access these programs, or who have been recently turned away after new patient intake was closed. For iOAT patients in Edmonton and Calgary who are involuntarily transitioned from treatment, and other people living with severe opioid use disorder, the health and social risks of iOAT defunding could be even greater than previous research suggests. This is because it has never been more dangerous to be reliant on the illegal opioid market in Alberta.

vi. Dr. Susan Boyd 258. Dr. Susan Boyd (“Dr. Boyd”) is a Distinguished Professor in the Faculty of Human and Social Development, University of Victoria who has conducted research on drug issues for 30 years.313

259. Dr. Boyd published a series of academic papers in the wake of the NAOMI and SALOME studies, which were the first medical trials of iOAT therapy in Canada. In the NAOMI study, participants who suffered from severe opioid use disorder were provided iOAT therapy and then

313 Affidavit of Susan Boyd, sworn September 29, 2020 at ¶¶1-6. -72-

were denied treatment at the end of the trial. Serious ethical and moral issues arose by the decision of the study’s authors to provide people living with severe opioid use disorder lifesaving and life sustaining medical treatment and then to deny it to them in an abrupt manner. There were a range of other decisions that imposed serious hardship on this vulnerable and marginalized patient population.

260. Dr. Boyd conducted a series of interviews with participants of the studies and captured the hardship they experienced at the end of the trials and how they were treated throughout the process.314 Most documented serious harms from participating in the study in terms of their physical and mental health by being provided critical medical treatment and then being denied it shortly afterwards for reasons other than their best medical interests.315

261. After reviewing the Plaintiffs’ affidavits, Dr. Boyd determined that the feelings expressed by them are consistent to what the patients of the NAOMI and SALOME trials described as being denied continued access to iOAT at the end of the studies:316

Based on my review of the Plaintiffs' affidavits, it appears that their feelings of concern, hopelessness, and immense fear are consistent with what SNAP participants experienced at the conclusion of the NAOMI trial and when switched from injection to oral doses during the SALMOE trial.

There is a sense from the Plaintiffs in their affidavits that after they are denied access to iOAT, they will lose any possibility of a safe and healthy future. They express concern and fear that they will resort to their previous lives, where they were homeless and lived moment by moment consumed with finding and using opioids, and experiencing immense hardship and risk in that pursuit.

There is also a clear understanding depicted by the Plaintiffs in their affidavits that they are being targeted and that they will lose the self-esteem and confidence they developed through iOAT.

In the case of the Plaintiff Taylor Anthony Maxey, he testified that iOAT gave him a sense of purpose and hope, and without it:

it's like you are drowning in the ocean and have been thrown a life preserver. But, now the life preserver is being taken away from you. Without iOAT, I will be that person in the ocean who is alone and without a life preserver, treading on my own until I give up. I don't want that to happen to me.

The Plaintiff Shane Paul Monette provides a similar perspective:

I am afraid of losing this new life that I built. I have made significant strides and I am proud of the person I have become on iOAT. I don't want to stop being that person. I

314 Affidavit of Susan Boyd, sworn September 29, 2020 at ¶¶9-25. 315 Affidavit of Susan Boyd, sworn September 29, 2020 at ¶¶9-25. 316 Affidavit of Susan Boyd, sworn September 29, 2020 at ¶¶26-33. -73-

am more than my opioid use disorder, and iOAT has made me realize that and ensured that f am living my best life. I don't want to return to that hell that f was living before.

For the Plaintiff Amanda Frances Marie Ervin, after years of living on the streets with opioid use disorder and being subject to violence and sexual trauma as a result, iOAT made her feel like a human being again:

iOAT has given me a life. lt makes me feel I like a person again. It makes me feel that my life matters, that it is worthy of dignity and respect and that it should continue.

The perspective that iOAT provided the Plaintiffs a sense of purpose and dignity is found each Plaintiff affidavit, and mirrors the experiences of the SNAP participants.

In my opinion, the Plaintiffs will suffer the same or similar harms experienced by the SNAP participants with the closure of iOAT. These harms range, but include the undermining of their sense of personal dignity, confidence and self-esteem, and any hope that they can live safe, healthy, and sustainable lives into the future.

4. The Evidence of Harm: Consistent, Uncontested, and Overwhelming

262. The Plaintiffs have marshalled an extensive, nuanced, and unchallenged evidentiary record that demonstrates that individuals requiring access to iOAT in Alberta will face significant, irreparable, and potentially life-threatening harm if the therapy is no longer offered.

263. The record consists of affidavit evidence from iOAT participants, the clinical staff at Alberta’s iOAT clinics, physicians who provide iOAT therapy and other forms of opioid use disorder treatment in Alberta and British Columbia, and Canada’s leading medical researches on opioid use disorder and effective treatment options.

264. The potential harms include homelessness and being exposed to the violence associated with street opioid use, including sexual violence; acquiring diseases such as Hepatitis C and HIV/AIDS; a significant deterioration of their mental and physical health; and premature death or serious injury resulting from an opioid overdose.

265. The evidence of the harms that are likely to occur if iOAT therapy is no longer available in Alberta was not contested by HMQA in any way. The record only consists of the Plaintiffs’ evidence. HMQA made no attempt to cross-examine or tender evidence to otherwise challenge the Plaintiffs’ evidence. This should be considered to be an admission on the part of HMQA that the evidence of harm cannot be rebutted. -74-

5. HMQA’s Alternative Proposal to Closing iOAT

266. On November 16, 2020, in response to this application, HQMA made a proposal that it considered would render this hearing moot. HQMA provided the proposal to the Plaintiffs and Associate Chief Justice K.G. Nielsen.

267. The proposal consists of HQMA agreeing to extend to iOAT patients, including the Plaintiffs, “access to injectable hydromorphone317 and an appropriate facility in which to administer the injection under medical supervision.”318 HQMA specifically labels these features as the “core service” of iOAT.319 HQMA seeks to provide these services through ODP, AHS facilities that provide non-iOAT treatments for opioid use disorder.320

268. HQMA’s position is that if it can offer what it considers to be the core features of iOAT, then there is neither a need for an injunction nor this action, as the relief sought is being provided: access to iOAT therapy.

I. HMQA’s Proposal is not iOAT, Will Impose Harm on iOAT Patients

269. However, HQMA’s proposal is not iOAT. iOAT is a medical treatment regime that has its core components set out in the CRISM National Guidelines. For an opioid use disorder regime to qualify as iOAT therapy, it must adhere to the following requirements:321

a) 7 day a week access for up to 3 doses of intravenous (“IV”) hydromorphone a day; b) 7 day a week access to a prescriber experienced in iOAT; c) an open-ended treatment date (i.e. no set end date); d) co-location or access to primary care through the iOAT provider; and e) the ability of patients to move between oral agonist treatment and iOAT. 270. HQMA’s proposal “does not adhere to CRISM guidelines.”322

271. First, ODP is open only Monday to Friday, and is closed weekends and holidays. ODP is only open during daytime hours, rather than the extended schedule that iOAT has to ensure that

317 The injectable opioid that patients receive as part of iOAT in Alberta. 318 Affidavit of Patty Wilson, sworn November 20, 2020 at Exhibit “A”. 319 Affidavit of Patty Wilson, sworn November 20, 2020 at Exhibit “A”. 320 Affidavit of Patty Wilson, sworn November 20, 2020 at Exhibit “A”. 321 Affidavit of Patty Wilson, sworn November 20, 2020, at ¶6. 322 Affidavit of Patty Wilson, sworn November 20, 2020, at ¶6. -75-

patients are able to access treatment whenever it suits them best.323 The limited days of the week and lack of hours that ODP is open is contrary to the requirements that national guidelines set out for iOAT programs.

272. Further, ODP operates with limited staffing levels and is oversubscribed relative to iOAT.324 For instance, in Calgary, there are over 800 patients at Calgary ODP but 50 patients at iOAT. iOAT is staffed with daily support of one physician for a half day, one nurse practitioner during business hours, 3 registered nurses, one social worker, one peer support worker, one outreach worker, and one administrative support person. ODP has the same staffing level for 800 patients. As such, it is not possible to access the same level of medical care.

273. ODP “does not offer access to primary care to its clients,” which is an express requirement for iOAT programs under the CRISM National Guidelines325 Further, ODP does not have access to the “added resources to address the psychosocial, medical, and psychiatric comorbidities of the iOAT population” that iOAT provides.326 This medical care is vital for iOAT patients to ensure that “they will be successful in managing their condition for the long term.”327

274. HQMA’s proposal does not guarantee that iOAT patients are able to move between oral and injectable medication as circumstances may require. This flexibility is foundational to iOAT, recognizing that a patient’s path to stabilizing and managing their opioid use disorder is not necessarily linear. ODP does not offer this flexibility, which is another mandatory requirement as set out in the CRISM National Guidelines.

275. As Dr. Balachandra, who works in both iOAT and ODP settings, notes: “it is not in the best interest of ODP patients to have iOAT patients access treatment in their presence.”328

276. Finally, HQMA proposal includes: 329

no provision for new patients who desperately need iOAT therapy. These patients continue to suffer the complications of intravenous drug use and are currently cycling in and out of hospital with much suffering and great cost to the system. These patients will be left without access to life saving and life sustaining treatment for their severe

323 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶6. 324 Affidavit of Patty Wilson, sworn November 20, 2020, at ¶¶6-7. 325 Affidavit of Patty Wilson, sworn November 20, 2020, at ¶8. 326 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶7. 327 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶7. 328 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶8. 329 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶10. -76-

opioid use disorder, resulting in much worse health outcomes, including overdose death.

277. These are the primary reasons that the Plaintiffs rejected the November 16, 2020 proposal made by HQMA. HQMA’s proposal does not conform with the requirements for iOAT care as set out in the CRISM National Guidelines. “iOAT is more than ‘access to injectable hydromorphone” and “an appropriate facility in which to administer the injection of medical supervision.’”330 As long as HQMA refuses to provide iOAT therapy that is consistent with the CRISM National Guidelines past March 2021, the Plaintiffs will continue on with their application and this action.

PART III: APPLICABLE LAW AND STATEMENT OF ARGUMENT

A. The Test for Injunctive Relief 278. The test for an interim injunction against state action that is alleged to infringe the Charter is well settled. To receive an interim injunction, an applicant must demonstrate that: 331

a. there is a serious issue to be tried,

b. the applicant would suffer irreparable harm if no injunction was granted and the applicant was ultimately successful in the action, and

c. the balance of convenience between the parties favours the granting of an interlocutory injunction.

279. Although the impugned state action is presumed to have been made in the public interest, there is no presumption of constitutionality.332

1. The Appropriate Threshold is a Serious Issue to be Tried

280. In all injunctions targeting state action, the threshold that applies at the first prong of the test is whether there is a serious issue to be tried. The different thresholds that apply to prohibitive and mandatory injunctions in the private law context as set out in R v Canadian Broadcasting

330 Affidavit of Krishna Balachandra, sworn November 18, 2020, at ¶4. 331 RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at pages 332-333 [“RJR- MacDonald”], Plaintiffs’ Authorities, Tab 2. 332 Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110 at pages 12-25, Plaintiffs’ Authorities, Tab 3. -77-

Corp.333 are inapplicable to injunctions sought in the public law context and in relation to Charter rights.

281. Justice T.L. Friesen reached this finding in AC and JF v Her Majesty the Queen in Right of Alberta earlier this year in an injunction application seeking to enjoin state action in a similar set of circumstances. Justice Friesen reached this determination after reviewing PT v Alberta and Alberta Union of Provincial Employees v Alberta:334

I am satisfied that these two recent cases from our Court of Appeal govern my approach to determining the issues in the present case. These cases do not refer to R. v. CBC in analyzing the threshold that needs to be met in proving a serious issue to be tried under the first step of the RJR-MacDonald test. The decision in R v. CBC deals with the proper test for injunctive relief in an entirely different, primarily private law context. The test in RJR-MacDonald as it applies in constitutional cases where the operation of legislation was not overturned, nor was it modified by the CBC decision.

282. PT v Alberta335 and Alberta Union of Provincial Employees v Alberta336 are two recent decisions issued by the Court of Appeal that consider injunctions against state action. In the decisions, the Court consistently affirms that the first stage of the test is met if the claim is neither frivolous nor vexatious.337 However, whether an injunction requires the state to maintain a status quo arrangement or engage in some positive action to impose a new arrangement between parties is a consideration at the balance of convenience stage of the test. It is one of the factors to be assessed in determining the relative prejudice that will be imposed on the parties.

283. This is the same approach adopted by the Federal Court of Appeal, which found that the traditional RJR-MacDonald framework applies to injunctions against state action and the assessment at the first stage of the test is whether there is a serious issue to be tried. The threshold does not change regardless if the injunction is prohibitory or mandatory in effect but rather whether the relief requires the state to engage in positive action is an issue to be addressed at the balance

333 2018 SCC 5 [“CBC”]. 334 A.C. and J.F. v Her Majesty the Queen in Right of Alberta, Transcript of Proceedings, March 19, 2020, page 11, lines 8-14, Plaintiffs’ Authorities, Tab 5. 335 2019 ABCA 158. 336 2019 ABCA 320. 337 A.C. and J.F. v Her Majesty the Queen in Right of Alberta, Transcript of Proceedings, March 19, 2020, page 6, line 13 to page 11, line 14, Plaintiffs’ Authorities, Tab 5. -78-

of convenience stage of the analysis.338 Specifically, whether the burden of the positive action outweighs the possible harm that may be inflicted on the applicant if the injunction is not issued.

2. The Plaintiffs Seek a Prohibitive Injunction

284. However, if Justice Friesen is incorrect in her analysis in AC and JF v Her Majesty the Queen in Right of Alberta, and CBC applies to injunctions in the public law realm, specifically in relation to Charter claims against state action, then this Court must determine if the injunction is prohibitory or mandatory in nature. In determining if whether an injunction is prohibitory or mandatory in substance, a court must first identity the existing arrangement between parties and then assess whether the injunction attempts to alter the status quo or impose a new arrangement.

285. Distinguishing between prohibitory and mandatory injunctions can be difficult.339 A chambers judge must “look past the form and the language in which the order sought is framed, in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, ‘what the practical consequences of the… injunction are likely to be’”340 “The application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something.”341

286. In determining if whether an injunction is prohibitory or mandatory in substance, a court must first identity the existing arrangement between parties, and then assess whether the injunction attempts to alter the status quo or impose a new arrangement.342

287. An injunction that preserves the status quo is prohibitory in nature. A mandatory injunction has the effect of altering an existing arrangement. In both instances, a party can be ordered to engage in both positive or negative action to achieve the desired result, and the nature of the action directed does not on its own determine the substance of the injunction: “the test for determining whether the injunctive relief sought is mandatory versus prohibitive is one of substance over form.”343

338 Sawridge Band v Canada, 2004 FCA 16 at ¶¶43-36, Plaintiffs’ Authorities, Tab 6. 339 CBC, at ¶16, Plaintiffs’ Authorities, Tab 4. 340 CBC, at ¶16, Plaintiffs’ Authorities, Tab 4. 341 CBC, at ¶16, Plaintiffs’ Authorities, Tab 4. 342 ACCEL Canada Holdings Limited v Pembina Pipeline Corporation, 2018 ABQB 1039, at ¶16, ¶17, ¶18, and ¶24, Plaintiffs’ Authorities, Tab 7. 343 ACCEL Canada Holdings Limited v Pembina Pipeline Corporation, 2018 ABQB 1039, at ¶25, Plaintiffs’ Authorities, Tab 7. -79-

288. The question for a chambers justice, then, in deciding whether an injunction is prohibitory or mandatory in substance is to consider whether the injunction would preserve or alter the existing arrangement between the parties. It is irrelevant if this is achieved through positive or negative action, as any action can be framed in either light.

i. The Plaintiffs Seek an Injunction to Preserve the Status Quo 289. iOAT therapy is currently available in Alberta. The closure of iOAT is set to take effect March 2021. Until that happens, those requiring iOAT therapy in Alberta are still able to access the treatment.

290. As such, the injunction sought by the Plaintiffs — which is to allow continued access to iOAT past the March 2021 end date proposed by HMQA while the constitutionality of the closure is being decided— maintains the current status quo. At this moment in time, iOAT is still available to patients suffering from severe opioid use disorder. The injunction seeks to extend that existing status quo arrangement concerning iOAT, which ensures that the therapy is still available to the small number of Albertans who require this life saving and life sustaining medical treatment. The injunction would not alter the status quo arrangement that presently exists between the parties.

291. For this reason, the Plaintiffs’ injunction is a prohibitory injunction. It seeks to prevent HMQA from engaging in action that it intends to take in March 2021 to alter the existing status quo arrangement between the parties. The injunctive relief sought, which is to ensure that iOAT therapy continues past the March 2021 deadline, prohibits HMQA from engaging in its intended conduct and maintains the current status quo.

292. As a result, the threshold that applies to the first stage of the test for injunctive relief in this context is whether there is a serious issue to be tried.

B. The Charter Claims Advanced Raise a Serious Issue to be Tried 293. As the Supreme Court noted in RJR-MacDonald, there is a low threshold to establish that there is a serious issue to be tried.344 All that must be demonstrated is that “the claim is not frivolous or vexatious.”345

344 RJR-MacDonald, page 348, Plaintiffs’ Authorities, Tab 2. 345 RJR-MacDonald, pages 337 and 348, Plaintiffs’ Authorities, Tab 2. -80-

294. A reviewing court should not engage in an extensive review of the merits of an application for an injunction, unless granting the injunction would either: 346

a. impose such a hardship on the responding party so as to remove any potential benefit of proceeding to trial, or

b. functionally decide the action.

295. Neither of these exceptions exist here. There is no evidence of hardship on HMQA, as it has tendered no evidence in support of its position in this application. Granting the injunction will not functionally decide this action.

296. The sections 7, 12, and 15 Charter claims advanced by the Plaintiffs raise a number of serious issued to be tried in this action.

1. Section 7 of the Charter

i. The Anatomy of a Section 7 Charter Claim

297. Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

298. For a section 7 Charter claim to be successful, a claimant must demonstrate that their life, liberty, or security of the person interest has been deprived in a manner that fails to accord with the principles of fundamental justice.

299. “The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly.”347

300. “Security of the person encompasses “a notion of personal autonomy involving… control over one’s bodily integrity free from state interference” and it is engaged by state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering.”348 While the life interest is concerned with the continuation of

346 RJR-MacDonald, at page 338, Plaintiffs’ Authorities, Tab 2. 347 Carter v Canada (Attorney General), 2015 SCC 5 at ¶62, Plaintiffs’ Authorities, Tab 8. 348 Carter v Canada (Attorney General), at ¶64, Plaintiffs’ Authorities, Tab 8. -81-

life, concerns around an individual’s quality of life are engaged by the security of the person interest.

301. There are two dimensions to security of the person: “physical integrity” and “psychological integrity.” An individual's psychological integrity is engaged where “state interference with an individual interest of fundamental importance” brings about “serious psychological incursions”:349

For a restriction of security of the person to be made out ..., the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

302. The liberty interest is engaged “where state compulsions or prohibitions affect important and fundamental life choices.”350

303. The deprivation of a section 7 Charter interest must occur in accordance with the principles of fundamental justice.

304. The Plaintiffs rely on the following established principles of fundamental justice:

a) arbitrariness: there is no rational connection between the state’s interest and the limit it imposes on the section 7 Charter interests;351

b) overbreadth: the state, in pursuing its objective, takes away rights in a way that generally supports the object of the law, but goes beyond what is necessary to achieve its objective by denying the rights of some individuals in a way that bears no relation to the object;352

c) gross disproportionality: “the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure;”353 and

349 New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46 at ¶60, Plaintiffs’ Authorities, Tab 9. 350 Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at ¶49, Plaintiffs’ Authorities, Tab 10. 351 Carter v Canada (Attorney General), at ¶83, Plaintiffs’ Authorities, Tab 8. 352 Carter v Canada (Attorney General), at ¶85, Plaintiffs’ Authorities, Tab 8. 353 Carter v Canada (Attorney General), at ¶89, Plaintiffs’ Authorities, Tab 8. -82-

d) shock the conscience: state action that is so disproportionate and excessive that it would shock the conscience of Canadians.354

305. However, there are principles of fundamental justice that can be recognized on an ad-hoc basis, “it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.”355

306. In addition to the established principles of fundamental justice, the Plaintiffs advance a number of novel principles of fundamental justice that exist in this unique context:

a) medical ethics and practice standards: the state cannot alter or deny medical treatment that it provides to individuals in a manner that is inconsistent with the medical ethics and practice standards that apply in a particular situation; and

b) reasonable expectations: when an individual has a reasonable expectation of access to a state benefit for particular period of time, based on the conduct and representations of the state, the state cannot truncate or deny access to that benefit for that period of time.

ii. The Section 7 Charter Claim Advanced

307. As set out in the affidavits tendered by the Plaintiffs, iOAT clinicians, and medical and public health experts, the record establishes that iOAT is life saving and life sustaining medical treatment for individuals living with severe opioid use disorder who have not benefited from other treatment options. The medical literature suggests that the sub-population of individuals with opioid use disorder who require iOAT is 10-15% of all patients who require opioid agonist treatment.

308. The Plaintiffs, both individually and collectively, deposed of the transformative effects of the iOAT therapy they have received:

354 United States v Burns, 2001 SCC 7 at ¶¶67-69, Plaintiffs’ Authorities, Tab 11. 355 R v Malmo‑Levine; R v Caine, 2003 SCC 74 at ¶113, Plaintiffs’ Authorities, Tab 12. -83-

a) it has allowed them to avoid an opioid overdose death in the context of the unprecedented opioid overdose crisis in Alberta;

b) it has allowed them to engage in more sustained and effective treatment for their opioid use disorder with the aim of reducing their dependency to opioids, and in some cases, achieving sobriety;

c) it has allowed them to stabilize and manage their opioid use disorder, allowing them to receive necessary primary care and ancillary health treatment for Hepatitis C and other ailments, improving their health outcomes;

d) it has allowed them to receive mental health and psychiatric counselling to address the sources of their opioid use disorder and any other mental health impairments;

e) it has allowed them to no longer be on the streets with the singular focus of finding and consuming opioids, being exposed to all forms of violence, including sexual exploitation and assaults;

f) it has allowed them to forgo participation in criminal activity and incarceration;

g) it has allowed them to reconnect with their families and friends, live sustainable and healthy lives, experience a richer and fuller life, and improve their social health and functioning;

h) it has provided them hope, goals, and a future that was foreclosed to them when they were not on iOAT; and

i) it has provided iOAT patients with a variety of other health and social benefits that were not possible when their severe opioid use disorder was unchecked.

309. The evidentiary record establishes that iOAT therapy provides a range of health and social benefits to those in Alberta who require the treatment. These health and social benefits directly engage the section 7 Charter interests of iOAT patients in Alberta:

a) life: the record establishes that without access to iOAT, patients of the program are much more likely to die of an opioid overdose resulting from the consumption of street- sourced opioids. iOAT is only for those suffering from severe opioid use disorder who have not benefited from any other form of treatment, which means that without iOAT, -84-

they are likely to rely on street opioids to self-manage their condition. The opioid overdose crisis is the result of a contaminated street opioid supply, where opioids are much more toxic and deadly than ever in the history of Alberta, leading to the unprecedent rate of opioid overdose deaths in the province. Without iOAT, patients of the program are significantly more likely to consume street-sourced opioids and die of an opioid overdose death.

b) security of the person: the increased consumption of street-sourced opioids will result in the destabilization of iOAT patients and likely acquiring and being exposed to other illnesses from street opioid use, including Hepatitis C, blood infections, HIV/AIDs, and a range of other diseases and injuries. Further, the record also demonstrates that the destabilization of individuals living with opioid use disorder and reliance on street- sourced opioids will lead to homelessness, criminality, incarceration, and being subject to various forms of violence, including sexual assault and exploitation. There is also the real risk of premature death caused by the violence those with opioid use disorder experience on the street.

c) liberty: the liberty interest concerns the ability to make fundamental personal decisions. As the record sets out, the Plaintiffs have only been able to stabilize and manage their severe opioid use disorder through iOAT. Before iOAT, their lives followed the same cycle: spending every waking moment either finding a way to purchase illicit opioids to consume or being under the influence of opioids until the effects wore off and the process would start again. Their lives centered around finding and using opioids, and they would subject themselves to all sorts of harms and violence in the process, including the possibility of opioid overdose death, because their physical and mental compulsions were so strong. For iOAT patients, not accessing iOAT means that they are not able to stabilize or effectively manage their severe opioid use disorder, and in turn, become entirely dependent on the whims of their illness, losing the agency to make fundamental personal decisions. Continued access to iOAT ensures that they are able to stabilize and manage their opioid use disorder, and therefore, can continue to make fundamental personal decisions about their lives.

310. As such, the denial of iOAT therapy in Alberta past March 2021 constitutes a deprivation of the life, liberty, and security of person interests of iOAT patients in Alberta. Without iOAT, -85- patients will experience a number of significant health and social harms that are linked to their section 7 Charter interests.

311. The deprivation of life, liberty, and security of the person interests of iOAT patients fails to accord with the principles of fundamental justice:

a) arbitrariness: iOAT therapy was developed on the recommendations of MOERC, which was tasked to develop strategies and programs based on “the best information and evidence available” to address the province’s opioid overdose crisis.356 Among the recommendations was “the phased implementation of a supervised injectable opioid agonist therapy program in Edmonton and Calgary.”357 HMQA accepted and implemented the recommendation, establishing iOAT therapy in Edmonton and Calgary.358 On that basis, it is reasonable to assume that HMQA enacted iOAT as urgent action “to address Alberta’s opioid overdose epidemic.”359 However, the decision to now stop iOAT therapy in Alberta is directly contrary to this objective. Therefore, the deprivation of the section 7 Charter interests of iOAT patients in this context is contrary to HMQA’s objective of developing and implementing the best evidence-based strategies and programs to tackle Alberta’s opioid overdose epidemic.

b) overbreadth: even if it is determined that denying further access to iOAT therapy is linked to the overarching objective behind HMQA’s opioid overdose response strategy, then the harms imposed on iOAT patients extend beyond what is necessary for HMQA to achieve its objective.

c) gross disproportionality: the iOAT patients risk death or other serious harms through HQMA’s decision to cancel iOAT therapy in the province. Regardless of the objective ascribed to HMQA’s conduct, the harms imposed on iOAT patients are grossly disproportionate to the object of the measure.

d) shock the conscience: HMQA’s conduct will result in iOAT patients dying of opioid overdose deaths or suffering other serious health and social harms, even though the

356 Opioid Emergency Response Regulation, Alta Reg 99/2017, s. 4(3), Plaintiffs’ Authorities, Tab 1. 357 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶49. 358 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶50. 359 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶35. -86-

deaths and harms are entirely preventable. This would shock the conscience of Canadians.

e) reasonable expectations: iOAT patients were informed when they joined iOAT that they would receive treatment until it was no longer medically necessary. iOAT patients had the reasonable expectation that treatment would continue until this point and not end on an arbitrary end date that is not associated with whether they require the therapy further from a medical perspective.

f) medical ethics and practice standards: the record definitively establishes that ending iOAT in the manner HMQA proposes is contrary to the medical ethics and standards that apply to the therapy, specifically by ending the program within a fixed timeframe of three years and requiring all patients be transitioned to oral opioid therapies.360

312. The section 7 Charter claim advanced by the Plaintiffs in this action constitutes a serious issue to be tried, satisfying the first prong of the test for injunctive relief in this action.

2. Section 12 of the Charter

i. The Anatomy of a Section 12 Charter Claim

313. Section 12 of the Charter reads:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

314. In the non-penal, civil context, “treatment” for the purposes of section 12 of the Charter has only been judicially interpreted two times over the course of the provision’s nearly 40-year history.

315. In Rodriguez v British Columbia (Attorney General),361 Justice Lamer for the Majority held:362

that ‘treatment’ within the meaning of s. 12 may include that imposed by the state in contexts other than that of a penal or quasi-penal nature… [t]here must be some more active state process in operation, involving an exercise of state

360 Affidavit of Elaine Hyshka, sworn November 22, 2020 at 7-11 and Affidavit of Patty Wilson, sworn November 20, 2020 at 6. 361 [1993] 3 SCR 519. 362 Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [“Rodriguez”] at pages 611-612, Plaintiffs’ Authorities, Tab 13. -87-

control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute ‘treatment’ under s. 12.

316. A state process that involves the government engaging in some form of positive action or inaction over an individual, or prohibiting them from doing something, is enough to trigger section 12 of the Charter. If that positive action (doing something), inaction (not doing something), or prohibition (banning something) is cruel and unusual, in the sense that it is “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate,” then a section 12 Charter breach is made out.

317. However, in Rodriguez, the court held that since the appellant was challenging the impacts of a law of general application, in the sense that all individuals in Canada were subject to the same criminal code provisions against assisted dying, then the prohibition on medically assisted death did not constitute “treatment” for the purposes of section 12 of the Charter.363 The was no special administrative control over the appellant that distinguished her experience from other individuals in Canada. There was no “active state process in operation” to engage her section 12 Charter rights to ground a breach.364

318. In contrast, refugee claimants in Canadian Doctors for Refugee Care v Canada (Attorney General),365 were found to be subject to an active state process: “those seeking the protection of Canada are under immigration jurisdiction, and as such are effectively under the administrative control of the state.”366 The state process they are under as foreign nationals seeking legal status in Canada creates a dependency on the state, which affects their rights and interests. This engaged the section 12 Charter rights of refugee claimants (emphasis added):367

in the unusual circumstances of this case, I am prepared to find that the decision of the Governor in Council to limit or eliminate a benefit previously provided to a discrete minority of poor, vulnerable and disadvantaged individuals coming within the administrative control of the Government of Canada subjects these individuals to “treatment” for the purposes of section 12 of the Charter.

363 Rodriguez at pages 611-612, Plaintiffs’ Authorities, Tab 13. 364 Rodriguez at pages 611-612, Plaintiffs’ Authorities, Tab 13. 365 2014 FC 651 [“Refugee Care”] 366 Refugee Care at ¶585, Plaintiffs’ Authorities, Tab 14. 367 Refugee Care at ¶590, Plaintiffs’ Authorities, Tab 14. -88-

319. In Refugee Care, determining whether a particular form of state conduct constitutes treatment for the purposes of section 12 of the Charter was an involved, contextual determination that required significant fact-finding and review by the court.

320. The court ruled in Refugee Care that the state treatment in that case rose to the level of being cruel and unusual because forcing vulnerable and marginalized individuals “to beg for life- saving medical treatment” was demeaning, signifying “that their lives are worth less than the lives of others.”368 This outraged the standards of decency and was grossly disproportionate to how refugee claimants should have been treated in the circumstances.

ii. The Section 12 Charter Claim Advanced

321. HMQA providing the Plaintiffs and other iOAT patients in Alberta iOAT therapy constitutes “treatment” for the purposes of section 12 of the Charter. The state process at issue is positive action: the specialized medical treatment that HMQA provides iOAT patients. Further, it is not state action of general application but rather limited to the approximately 100 patients who access iOAT therapy in the province.

322. iOAT patients also constitute a discrete minority of poor, vulnerable, and disadvantaged individuals who are within the administrative control of HMQA. The administrative control arises by virtue of the fact that they are patients receiving vital medical treatment that makes them entirely dependent on HMQA. Without iOAT, patients would be unable to stabilize and manage their severe opioid use disorder, and face a variety of health and social harms, including the real possibility of premature death.

323. The denial of iOAT therapy to patients will cause them to suffer an array of serious and debilitating harms, which includes the likelihood of death by opioid overdose in the midst of an unprecedented opioid overdose crisis. The fact that this is occurring to achieve no demonstrable public benefit and is entirely preventable is “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate.”

324. The argument advanced in relation to the section 12 Charter breach is analogous to the situation of the claimants in Refugee Care. The claimants in Refugee Care sought continued access to health care coverage as their refugee claims were being decided. The court found that denial of

368 Refugee Care at ¶688, Plaintiffs’ Authorities, Tab 14. -89- such coverage to a discrete, marginalized group of people would cause harm, and be is “so excessive as to outrage standards of decency” in Canada. Forcing vulnerable and marginalized individuals “to beg for life-saving medical treatment” was demeaning, signifying “that their lives are worth less than the lives of others.”369 On that basis, the court found the section 12 Charter claim in Refugee Care made out.

325. The Plaintiffs are advancing the same argument in this case: HMQA is denying iOAT patients life-saving medical treatment, signifying to them that their lives are not worth saving in the midst of an unprecedented public health emergency. The denial of iOAT therapy in this context is so excessive and cruel that it outrages the standards of decency.

326. As such, the section 12 Charter claim advanced in this action is a serious issue to be tried.

3. Section 15 of the Charter

i. The Anatomy of a Section 15 Charter Claim

327. Section 15 of the Charter states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 328. For a section 15 Charter claim to be actionable, a claimant must demonstrate that:370

a) the state action imposes differential treatment based on protected grounds, either explicitly or through adverse impact; and

b) has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

369 Refugee Care at ¶688, Plaintiffs’ Authorities, Tab 14. 370 Fraser v Canada (Attorney General), 2020 SCC 28 at ¶81, Plaintiffs’ Authorities, Tab 15. -90-

ii. The Section 15 Charter Claim Advanced

329. Currently, HMQA offers a full range of medical treatment options for Albertans suffering from opioid use disorder. The treatment options available address the variety of forms the condition takes in terms of severity:

330. No matter the severity of one’s opioid use disorder in Alberta, HQMA presently provides them an effective form of treatment.

331. For Albertans suffering from severe opioid use disorder, this is important because the specific sub-population of individuals living with severe opioid use disorder who require iOAT “[are] at a higher risk of experiencing overdose death, other health harms, and structural vulnerability (e.g. poverty, homelessness, and/or unstable housing) relative to those with less severe opioid use disorder.”371

332. Historically, this group has been harder to treat because of they do not respond to standard treatment options given the severity of their condition and the “long history of political and social opposition” to treatments like iOAT, despite the fact that the evidence demonstrates overwhelmingly that it “saves lives and improves quality of life.”372 “iOAT has small but very important role in addictions medicine” because it is the only effective treatment option for the most severe forms of opioid use disorder.373 Without iOAT, these patients would cause the biggest strain on the health care and social support system, and are most likely to experience serious health and social harms from their condition.

371 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶46. 372 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020, at ¶31. 373 Affidavit of Eugenia Oviedo-Joekes, sworn October 6, 2020, at ¶31. -91-

333. However, in March 2021, HMQA will stop offering iOAT and no longer provide any effective treatment option for those living with severe opioid use disorder in Alberta:

334. The small, unique sub-population of individuals living with opioid use disorder in Alberta will be excluded from the medical treatment options that HMQA offers to treat the condition. Rather, this sub-population of patients will be left to self-medicate their condition through street- sourced opioids and be exposed to all the harms associated with consuming street opioids.

335. However, for those living with mild or moderate forms of opioid use disorder in Alberta, HMQA will continue to provide them effective medical treatment unabated. HMQA has only singled out and announced that it will deny access to iOAT, the only effective treatment option available to those living with the most severe forms of opioid use disorder.

336. In Eldridge v British Columbia (Attorney General), the Supreme Court of Canada held “that once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner”.374 The Court further recognized that “discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public”375

337. Here, HMQA extended a benefit to Albertans in the form of providing access to medical treatment for opioid use disorder. However, denying continued access to iOAT, while maintaining treatment options for mild or moderate opioid use disorder, discriminates and imposes significant harm on those living with severe opioid use disorder, a particularly vulnerable sub-population of patients.

374 Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [“Eldridge”] at ¶73, Plaintiffs’ Authorities, Tab 16. 375 Eldridge, at ¶78, Plaintiffs’ Authorities, Tab 16. -92-

338. A substantive equality analysis does not demand that all members of a particular group receive uniform treatment. Instead, it recognizes that in order to accord equal benefit of the law, differential treatment is necessary even where there are unique sub-populations or experiences of discrimination in the effected group.

339. By denying continued access to iOAT and cancelling the program, HMQA is imposing differential treatment on Albertans living with opioid use disorder based on the severity of their medical condition. Only those Albertans living with mild or moderate forms of opioid use disorder will receive treatment from HQMA after March 2021, while those with severe opioid use disorder will be denied the only effective form of treatment available to them with the closure of iOAT.

340. Mental and physical disability is a protected ground under section 15 of the Charter, and encompasses the particular form of one’s illness of medical condition. In the alternative, creating a distinction based on the severity of one’s medical condition, and on that basis, restricting the availability of treatment options, is an analogous ground under the Charter protection.

341. The effect of the differential treatment — HMQA denying access to iOAT after March 2021 while allowing treatments for mild or moderate forms of opioid use disorder to continue unabated — will reinforce, perpetuate, and exacerbate disadvantage for those living with the most severe form of opioid use disorder in Alberta. This sub-population of individuals living with opioid use disorder will continue to be denied effective treatment and be forced to confront the range of serious health and social harms that they are likely to be exposed to given the severity of their condition. The harms range from not being able to manage one’s opioid use disorder to the increased likelihood of overdose death. Further, the historical stigma and exclusion of this group of patients living with opioid use disorder from the health care system will continue and become further entrenched as a result of HQMA’s conduct.

C. iOAT Patients Will Face Immediate and Serious Harm if the Therapy is Ended 342. As set out by the Supreme Court in RJR-MacDonald, irreparable harm “refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.”376

376 RJR-MacDonald, at page 341, Plaintiffs’ Authorities, Tab 2. -93-

343. The affidavits tendered by the Plaintiffs set out a nuanced, thorough description of the physical, mental, and social harms they will face if they are denied access to iOAT past March 2021. The Plaintiffs’ evidence on this point in uncontroverted: without access to iOAT, they will face immediate, serious, and irreparable harms, including the real possibility of death by opioid overdose. HMQA has not challenged the Plaintiffs’ on their evidence.

344. However, the Plaintiffs have also marshalled a significant evidentiary record on the harms that will inflicted on the other approximately 80 other iOAT patients in the program and those living with severe opioid use disorder in Alberta who require this lifesaving and life sustaining medical treatment. The affidavits of iOAT clinicians, public health experts, and medical researchers are consistent and clear: this patient sub-population will die or face serious health harms once HMQA ends the medical treatment program in March 2021. There is no equivocation on this point: the decision of HQMA to end iOAT therapy in March 2021 will cause the Plaintiffs, other iOAT patients, and those requiring the treatment in Alberta to die or experience serious health and social harms.

345. The harms that HMQA’s decision to end iOAT therapy in Alberta will cause to those requiring the treatment are made out on the record. However, HMQA has tendered no evidence of the harms that it will suffer if the injunction is issued, which is a relevant consideration at the balance of convenience prong of the test for injunctive relief.

D. The Balance of Convenience Strongly Favours Granting an Injunction 346. In assessing the balance of convenience, a court should assess the harm that would be caused to the applicant if the injunction is not granted against the harm that would be done to the respondent if the injunction is granted.377

347. When seeking an injunction against state action, it should be assumed that the action in question is aimed at the public good.378

348. However, it is important to consider the broader public objective that the impugned state action flows from, and whether in granting an injunction, the societal harm that the state is seeking to cure would be facilitated or curtailed through the issuance of the injunction. Where granting an

377 Lubicon Lake Indian Band v Norcen Energy Resources Ltd, 1985 ABCA 12 at ¶34, Plaintiffs’ Authorities, Tab 17. 378 Harper v Canada (Attorney General), 2000 SCC 57 at ¶9 [“Harper”], Plaintiffs’ Authorities, Tab 18. -94-

injunction would itself cause or perpetuate harm, such as by preventing laws aimed at reducing the incidence of smoking,379 or permitting a party to violate campaign spending limits,380 the public good will correspondingly weigh against granting the injunction. However, if granting an injunction will not cause the public harm that the state seeks to prevent, this factor weighs significantly less against refusing an injunction.381

349. The decision to establish iOAT therapy in Alberta stems from the recommendations of MOERC, which was constituted after HMQA declared a public state of emergency arising from the opioid overdose crisis that gripped the province in 2017.382 MOERC was tasked to “develop recommendations for… urgent coordinated actions to effectively combat the opioid crisis” based on “the best information and evidence available respecting opioid use and responses to the opioid crisis.”383

350. Among the recommendations MOERC issued that were accepted by HMQA was offering iOAT therapy in Alberta, as there was a gap in medical treatment that resulted in those living with the most severe form of opioid use disorder being unable to access any form of effective medical treatment for their condition. This sub-population of individuals suffering from severe opioid use disorder “[are] at a higher risk of experiencing overdose death, other health harms, and structural vulnerability (e.g. poverty, homelessness, and/or unstable housing) relative to those with less severe opioid use disorder.”384 Dealing with the consequences of not treating this sub-population of patients is significant, as they are more likely to engage in the criminal justice and health care systems.

351. There have been economic studies conducted of the financial impacts of iOAT therapy on governments in Canada. For instance, Dr. Nick Bansback, an Associate Professor at the School of Population and Public Health at the University of British Columbia, has studied the economic consequences of iOAT therapy in the Canadian context. In studies published in peer-reviewed academic journals, Dr. Bansback has found that for “every dollar spent on [iOAT’ treatment,

379 RJR-MacDonald. 380 Harper. 381 RJR-MacDonald, at pages 342-347, Plaintiffs’ Authorities, Tab 2. 382 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶28. 383 Opioid Emergency Response Regulation, Alta Reg 99/2017, s. 3 and 4(2), Plaintiffs’ Authorities, Tab 1. 384 Affidavit of Elaine Hyshka, sworn October 1, 2020 at ¶46. -95-

$1.13-1.17 is saved in comparison to spending on [methadone maintenance treatment], and $1.70- 1.76 is saved in comparison to no treatment.”385

352. Dr. Bansback’s studies have also been subject to third-party academic commentary from the world’s leading health care economists, including the following insights on his research findings:386

When integrating all this, the message that emerges is not that injectable opioid therapy will definitely save money, nor is it the formal comparison between hydromorphone and diacetylmorphine, which is not relevant in the vast majority of settings in which diacetylmorphine remains explicitly prohibited and is not a feasible treatment option. Rather, it is the formal demonstration that, among individuals with severe [opioid use disorder] who have already failed methadone maintenance, injectable therapy clearly improves outcomes and that whether or not it is cost-saving, it provides good value for the resources invested compared to other mainstream health interventions that we offer every day.

353. Although Dr. Bansback did not conduct his study on data from Alberta specifically, in his opinion, the same findings would apply:387

Although additional, specific, and independent evaluation would be required to determine the specific economic impact of the iOAT programs in Alberta, based on the information and assumptions provided above, it is my opinion that given the similarities in health systems and population, that iOAT would have a similar economic impact in Alberta.

354. iOAT was accepted and offered by HMQA as a valuable public health tool to help address the opioid crisis in Alberta in a cost-effective manner that saves and improves lives. The iOAT patients, medical experts, and public health experts who have tendered affidavits in this action confirm that this in fact has been the case after more than 2 years of iOAT therapy being available in Alberta. Dr. Bansback’s expert affidavit, which was not challenged by HMQA, provides evidence that maintaining iOAT will result in net cost-savings for the province relative to offering this unique sub-population alternative treatment or no treatment for their severe opioid use disorder.

355. Taken as a whole, the record establishes that the public interest — both in terms of HMQA’s objective of confronting the opioid epidemic and the broader economic and financial considerations of the state — is furthered with the issuance of this injunction. There is no evidence

385 Affidavit of Nick Bansback, sworn September 22, 2020 at ¶13. 386 Affidavit of Nick Bansback, sworn September 22, 2020 at ¶16. 387 Affidavit of Nick Bansback, sworn September 22, 2020 at ¶17. -96-

on record to suggest that the public interest presumption afforded to HMQA in this context is undermined through the granting of the Plaintiffs’ injunction.

356. As such, the balance of convenience in this matter favours granting the injunction sought by the Plaintiffs. Albertans requiring iOAT to treat their severe opioid use disorder are likely to experience far more harms, including the real prospect of death, if the injunction is not issued, relative to any prejudice that may be incurred on HMQA with the granting of the injunction.

ALL OF WHICH IS RESPECTFULLY SUBMITTED, THIS 2nd DAY OF DECEMBER 2020.

______Counsel for the Plaintiffs

Avnish Nanda DJ Janjua Manraj Preet Sidhu (Student-at-Law)

NANDA & COMPANY ATTN: Avnish Nanda DJ Janjua Manraj Preet Sidhu (Student-at-Law)

10007 – 80 Avenue NW Edmonton, AB T6E 1T4 Telephone: 780-916-9860 Facsimile: 587-318-1391 Email: [email protected]

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PART VI: TABLE OF AUTHORITIES Legislation Cited At 1. Opioid Emergency Response Regulation, Alta Reg 99/2017 ¶38, ¶40, ¶311(a), ¶349

Jurisprudence Cited At 2. RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 ¶278, ¶293, ¶294, ¶342, ¶348 3. Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110 ¶279 4. R v Canadian Broadcasting Corp, 2018 SCC 5 ¶280, ¶285 5. A.C. and J.F. v Her Majesty the Queen in Right of Alberta, Transcript of Proceedings, ¶281, ¶282 March 19, 2020 6. Sawridge Band v Canada, 2004 FCA 16 ¶283 7. ACCEL Canada Holdings Limited v Pembina Pipeline Corporation, 2018 ABQB 1039 ¶286, ¶287 8. Carter v Canada (Attorney General), 2015 SCC 5 ¶299, ¶300, ¶304(a,b,c,d) 9. New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46 ¶301 10. Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 ¶302 11. United States v Burns, 2001 SCC 7 ¶304(d) 12. R v Malmo‑Levine; R v Caine, 2003 SCC 74 ¶305 13. Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 ¶315, ¶317 14. Canadian Doctors for Refugee Care v Canada (Attorney General) 2014 FC 651 ¶318, ¶320, ¶324 15. Fraser v Canada (Attorney General), 2020 SCC 28 ¶328 16. Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 ¶336

17. Lubicon Lake Indian Band v Norcen Energy Resources Ltd, 1985 ABCA 12 ¶346 18. Harper v Canada (Attorney General), 2000 SCC 57 ¶347, ¶348