A judicial review of Canada’s decision to deny a peer-led safe supply group an exemption to operate legally will begin on March 7 in the Federal Court of Canada in Vancouver.
In August 2021, Vancouver-based groups the Drug User Liberation Front (DULF) and the Vancouver Area Network of Drug Users (VANDU), applied for a Section 56 exemption to the Controlled Drugs and Substances Act (CDSA). This would have allowed DULF to run a not-for-profit “compassion club”—to purchase, test and sell drugs at cost, in order to protect a small group of adults who use drugs from the adulterated street supply.
Nearly a year after filing, their exemption request was denied by Health Canada.
DULF went ahead with its volunteer-led program anyway, until it was forcibly halted by Vancouver police on October 25, 2023. Co-founders Eris Nyx and Jeremy Kalicum were arrested and released on certain conditions; the Crown has yet to press charges.
Days after the arrests, British Columbia’s chief coroner, Lisa Lapointe, recommended the province establish and expand non-prescription safe supply programs to reduce deaths.
BC’s drug supply has only grown more dangerous over the last five years. Coroners Service data show 2,511 suspected deaths related to unregulated drugs in 2023, the highest number ever recorded.
The judicial review will ask the court to determine if Canada’s decision to deny DULF’s exemption request was reasonable, DJ Larkin, a legal expert and executive director of the Canadian Drug Policy Coalition, explains.
“Canada is the only entity that has control over whether people can access regulated drugs of known potency,” she says. “Given the magnitude of the current crisis, was it reasonable to turn down DULF without considering ways they could work with them?”
What could happen with the judicial review?
There are three paths the court could take. One, the judge could side with Health Canada and the decision would remain unchanged. Two, the court could determine the government acted unreasonably and turn the decision back to Health Canada to re-evaluate. And three, the court could determine that the decision was unreasonable and order Health Canada to grant DULF the exemption.
DULF’s legal team is aiming for the third option. “This wasn’t just a policy decision that [Health Canada’s director general of controlled substances] had to make,” Tim Dickson, one of DULF’s lawyers, says. “She failed to proportionately balance the Charter rights that drug users have to life, liberty and security against the other objectives in the CDSA.”
The upcoming judicial review resembles one held in 2011, over Insite. In 2003, the Vancouver facility had become the first sanctioned safe consumption site in North America, operating under a Section 56 exemption. When the Conservative federal government refused to renew Insite’s expired exemption, a judicial review process ultimately ordered a permanent exemption.
DULF’s case, however, has some extra complications.
DULF presently sources its drug supply off the dark web, and its original exemption request was denied partly for this reason. The group has repeatedly asked the government to help facilitate a pathway to a legal supplier.
“DULF was pleading with Health Canada to become more engaged in solving this problem, and they said, ‘That’s not what we do,’”
“DULF was pleading with Health Canada to become more engaged in solving this problem, and they said, ‘That’s not what we do,’” Dickson says.
The court can’t order Health Canada to provide a legal supplier, so if granted the exemption, DULF would continue to operate using its current model. But Dickson stresses that it would be “contrary and irrational” to disallow the compassion club on these grounds.
“[Drugs used at] overdose prevention sites, and the small amount of drugs that have been decriminalized in BC, have all been illegally obtained,” he says. “Nonetheless, those measures have been approved because of the need to protect life. But the director general has refused to approve DULF’s life-saving compassion club just because, for now, the drugs would likewise need to be obtained from illegal sources.”
Though there’s no way to know for sure, Larkin predicts that the court is most likely to turn the decision back to Health Canada, which could come to a different conclusion. Depending on the outcome, she says, the government may also decide to appeal the court’s decision, which could even eventually land the case in the Supreme Court of Canada.
New evidence for compassion club efficacy
The judicial review comes on the heels of a novel study, released in February, on the outcomes of DULF’s compassion club.
The study assessed 47 participants over a 12-month period and found a 50 per cent reduction in non-fatal overdose rates.
“We know from research that one of the strongest predictors of deaths from an overdose event is having a history of non-fatal overdose,” co-author Thomas Kerr explains. “By providing people with a reliable, quality-tested, supply of drugs, their risk of overdose dramatically decreased.”
Kerr says these results are significant because they demonstrate the efficacy of lower-barrier alternatives that could fill many of the gaps in prescriber-based safer supply. Compassion club participants “are able to interact in a more normal consumer-like experience with people from their own community,” he says. “There’s more trust.”
Kerr adds that the researchers had hoped to obtain even more data, but their work was cut short by the October police raids. “It doesn’t really help advance our response to the overdose crisis by simply shutting down novel initiatives.”
The court will be expected to make a judgment based on the information that was available at the time of the initial decision. But Larkin says that the study “could help determine the magnitude of the unreasonableness of (Canada’s) decision, given that it was a very effective program.”
Following the submissions phase on March 7 and 8, it could take weeks or months for the judge to make a decision.
“It was a courageous initiative on the part of a couple people who were trying to save the lives of their friends and community—and it worked,” Kerr says of the compassion club. “I hope that people see the real benefits of the work they did as they contemplate these questions.”
Top photo: DULF rally poster taken in an East Vancouver park by Maddi Dellplain
This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.
