Compassion club denial
On August 23 2021, the Drug User Liberation Front (DULF) and Vancouver Area Network of Drug Users (VANDU) applied to Health Canada for an exemption pursuant to section 56(1) of Canada’s federal drug law: the Controlled Drugs and Substances Act (CDSA). The exemption, if granted, would have provided legal protection to operators and participants of a drug compassion club wherein controlled substances (purchased online and later scrubbed, tested, and labeled for transparency and safety) could be circulated among people at risk of drug poisoning in BC. Nearly one year after the application was sent and received, with intermittent communication, Health Canada administrative staff denied the request.
DULF and VANDU requested an exemption primarily as an urgent response to a drug toxicity crisis. In BC alone, more than 13,000 people have died from overdoses and drug poisonings related to the unregulated and systemically toxic drug supply since April 2016, when the growing crisis was formally declared a public health emergency by then-Provincial Health Officer Dr. Perry Kendall. At the time that Health Canada denied an exemption to VANDU and DULF, more than 10,000 people in BC had already died directly from drug toxicity.
Crisis of prohibition
Drug toxicity deaths are driven by the volatility of the unregulated drug supply. However, toxicity and unpredictability are not simply “natural” characteristics of the drug supply. Dangerous shifts in the unregulated opioid and stimulant supply are produced by the intersecting policies, conventions, and legislation surrounding it. People have always – and will always – use drugs, for reasons that range from euphoria and pleasure to using as a coping mechanism for harms caused by social systems, including violence embedded in the provision of social services combined with major gaps in those services (housing, income assistance, child apprehension, pain management, forced psychiatric detention, police brutality, and a number of other examples).
In the absence of drug regulation and appropriate access to prescription-grade substances, people have consistently relied on the illicit drug supply. This is evidenced by every measure since prohibition was first imposed in Canada and BC. The BC Coroners Service’s Death Review Panel estimates that 225,000 people access the unregulated drug supply each year in the province. This equates to approximately 5% of the adult population, which is lower than the 5.5% of people aged 15-64 estimated to use illicit drugs globally. It has long been concluded that prohibitionist policies, exemplified by the CDSA, engender an increasingly complex and volatile drug supply. Decades of research in North America have established links between law enforcement supply-side disruptions and overdose, violence, and drug toxicity under prohibitionist frameworks (i.e., where there is no access to a regulated supply). Thus, drug toxicity is not generated in a silo but by interlocking, human constructed policies, legal conventions, and enforcement-based legislative tools.
Beyond death rates
The drug toxicity crisis (formally declared an emergency in BC, but inarguably global in nature) is commonly discussed in relation to the number of people dying each day, month, and year. Tragically, it is true that nearly seven people die on average every day in BC as a result of the emergency. However, the adverse consequences and harms of an unregulated drug supply extends beyond the singular metric of death, encompassing a range of broader societal issues.
Non-fatal overdoses occur more frequently than fatal ones. Across BC, paramedics have responded to over 100 overdose calls per day every month since February 2023. In Vancouver alone, firefighters responded to over 9,000 overdoses throughout 2023. Frontline workers, who respond daily to overdoses, have experienced high levels of trauma, stress and burnout. While no formal, province-wide statistic captures the number of overdose reversals completed by harm reduction workers, Insite workers alone reverse over 1,300 overdoses annually. This harm appears to be stratified, with workers in community-based “peer” positions often paid less, while enduring the most intensive stressors.
The volatile drug supply creates other health and social complications and violence. The increasingly complex mix of adulterants within the market, including psychoactive components and use of ‘cutting agents,’ lead to further environmental harms and public health hazards. These harms and hazards include adaptive wounds and health conditions, such as anemia. For example, the use of multiple psychoactive ingredients, such as a mix of opioids and benzodiazepines, can also make detox more physically difficult and less safe. Undoubtedly, the constantly changing composition and potency of supply will only continue to impact the utility of prescribed alternatives to the street supply, due to rapid shifts in the components that make up the substances people use; a process driven by prohibitionist policies. The longer periods of sedation brought on by a street supply with tranquilizers and various benzodiazepines, can also produce conditions for increased risks of gender-based violence.
Role of CDSA
The CDSA, from which DULF and VANDU requested the exemption in question, is Canada’s federal drug law, prohibiting drug-related activities ranging from simple possession to importation and exportation. In her affidavit defending Health Canada’s decision to deny the compassion club exemption, Carol Anne Chénard, Health Canada’s Director of the Office of Controlled Substances, describes the CDSA as:
Establish[ing] a framework for the control of drugs that alter mental processes and can result in harm to health or society when misused or diverted to an illegal market. These drugs are referred to as “controlled substances” and are listed in the schedules to the CDSA…The purpose of the CDSA is to protect public health and maintain public safety.
Importantly, she affirms:
Subsection 56.1 covers requests for exemptions for activities at a “supervised consumption site”, whereas s. 56(1) covers all other requests for exemptions [including for the DULF model].
According to Chénard, s. 56(1) exemptions are decided “case-by-case;” she lists “common considerations” as:
i. public health and public safety objectives of the CDSA;
ii. availability of existing regulatory pathways to conduct the activity;
iii. availability of the requested controlled substance(s);
iv. international commitments or obligations (review of international obligations, including estimates of annual legitimate drug requirements submitted to the International Narcotics Control Board, etc.);
vi. federal, provincial/territorial, or municipal legislation/regulations that may apply to the proposed activity;
vi. risks associated with granting an exemption;
vii. risk of diversion of the controlled substance(s);
viii. overall risks associated with the activity being requested (whether risks can ix. be addressed with terms and conditions in a potential exemption); and
policy (review of current policy positions that would impact a request).
Vague assertions of harms
In both Chénard’s affidavit and in correspondence from Health Canada Director General Jennifer Saxe throughout the process, there exist a number of vague, undefined, and potentially hyperbolic assertions – all of which likely frustrate DULF and VANDU’s ability to understand the denial, making it more difficult to address Health Canada’s concerns. For example, in her denial of the exemption, Saxe refers to “safety risks,” and in a previous letter to the applicants, “growing…crime groups,” as well as “criminal marketplaces.” DULF and VANDU are not offered an estimation of either the magnitude or definition of the nature of these concerns (i.e., size, acuity, processes), such that assessing the level of harm – particularly as compared with the amply documented harms caused by the toxic drug market – is virtually impossible.
It has similarly been made technically implausible for DULF and VANDU to determine whether they can tailor their program to address Health Canada’s largely undefined concerns. Analytical issues surrounding “vagueness” have been central to analyses of laws alleged to violate s. 7 of the Charter, which protects the right to life, liberty, and security of the person. In the past, Courts have struck down some laws as invalid based on the “doctrine of vagueness.” This doctrine is “founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion” (see: R. v. Nova Scotia Pharmaceutical Society). In short, VANDU and DULF claim that the guidance they received was not possible to interpret or address.
Negligible differences on illicit markets
Health Canada’s Saxe refers to undefined safety risks of purchasing substances via darknet markets. However, part of DULF and VANDU’s defined criteria to become a member of the compassion club is that a member must already be using drugs from the unregulated market. In essence, DULF and VANDU’s activities under the exemption would not add demand to the illicit market but rather create a safety mechanism through a process of purchasing, testing, and labeling prior to distribution. Notably, DULF and VANDU applied for just one exemption with a limited membership (i.e., not open to the public). One can’t help but acknowledge the irony of Health Canada denying a legal exemption to a community-based program that serves a small number of people – all the while turning a blind eye to the fact that under the CDSA, most illicit drugs are “readily accessible” within a duration of approximately 10 minutes in Vancouver (per research conducted prior to implementation of BC’s decriminalization framework).
DULF and VANDU have been clear that they would prefer to receive the exemption and subsequently scale-up toward a legal means of supply procurement. However, this infrastructure is incredibly challenging to set up (not to mention cost- and resource-intensive) without having first received an exemption. In Canada’s legislative review of the Cannabis Act, “legalization” is acknowledged and referred to as a protective factor for public safety by deterring illicit markets and activity. DULF’s project is rooted in the same principle and has demonstrated a similar effect of deterrence. That said, the ability of DULF, VANDU and/or other community groups to scale up the program to the magnitude of Cannabis Act logic is stymied by the CDSA’s procurement prohibitions. In 2019, BC’s Provincial Health Officer, Dr. Bonnie Henry released a drug policy report that concurred with decades of research and experiential knowledge that the criminalization linked to global “war on drugs” policies leads to more overall harm.
Social license to operate
DULF and VANDU have received broad social license and support to operate a compassion club in their community, which has been hit particularly hard by drug market toxicity and knows first-hand the importance of civil disobedience to move the drug policy needle. For example, Vancouver’s City Council voted to support DULF’s work and associated exemption application in a motion at the time of application. The governing health authority of the region, Vancouver Coastal Health (VCH), wrote in formal support of the program, calling it, “a community-led compassion club model that would provide members with access to safer tested drugs thereby reducing their overdose risk.”
VCH previously maintained a working contract with DULF for non-drug purchasing activities, such as drug testing and overdose prevention. Similarly, the ex-Mayor of Vancouver, Kennedy Stewart, wrote to federal Cabinet ministers that the City of Vancouver is “proud to stand alongside community groups such as DULF and VANDU who are leading the work in advocating for innovative drug policy reform while saving lives everyday on the frontlines of the overdose crisis.” DULF announced their intention to operate and proceeded to do so, prior to sudden arrests and raids in October of 2023, and existed in a de facto legal space for more than a full year.
Bureaucratic delays, denials & the deprivation of life
Both Saxe and Chénard, in the aforementioned letters and affidavit, refer to the exemption application process as an “iterative” one (as compared with binary options of acceptance or denial). When it came to DULF and VANDU, however, Health Canada’s normative process turned static for extended periods of time. For example, Saxe sent DULF and VANDU a letter requesting more information on December 15 2021; following DULF and VANDU’s prompt response just two days later on December 17 2021, Saxe did not respond again until April 2022. During the period of apparent government silence, approximately 800 people died in BC from the toxic drug supply, and many others were impacted by the wide extent of other harms that would be difficult to capture here.
Reduction in street drug use is lessening of harms
Another critique of supply-side interventions that has emerged in public discourse is that at least some safe supply recipients (broadly speaking) continue to access the illegal drug supply concurrently. While this may be true for some people, it is an aside – particularly given the extreme toxicity of the illegal drug market, which means that even a one-time use of which can easily result in death. First, major studies in Canada and the US have shown prescribed opioids as protective factors against overdose, regardless of additional illicit use. This is in part because using prescriptions can ensure some tolerance for opioids, making risk of overdose lesser. Offering opioid prescriptions in detox is now considered best practice to reduce the risk of death after discharge for that reason. Second, as discussed, death is not the only negative outcome of intentionally or unintentionally consuming from the systemically contaminated drug supply. The reduction of reliance on the unregulated drug market can decrease other harms from substance use and related violence/harm.
Limited reach of the medical system
The exemption denial must also be understood through the realities of alternately accessing the existing prescribed, regulated supply. Clinics and prescribers regularly have extended waitlists. In 2021, one substance use program advisor succinctly said that “waitlists have become death lists.” Moreover, while access to prescriptions can reduce overdose risks, the process of gaining access to a dose that actually improves people’s quality of life (i.e., “a therapeutic dose”) is incredibly intensive. Drug users continue to be dehumanized through processes of urine surveillance and oftentimes doctor-led requirements to be witnessed each day ingesting their prescriptions. Moreover, “carries” (any take-home supply of more than the immediate dose), are oftentimes still extremely challenging to acquire. In Vancouver’s Downtown Eastside, there are few access points to prescribed alternatives that are not linked to these broader medical apparatuses.
Providence’s Crosstown Clinic, where a limited number of participants receive prescription heroin after a lengthy medical intake process, could be perceived positively from an outsider-observer’s perspective (and has generated positive results for many participants). However, the program has several limits. Not least of all, there is no supply or option that allows for inhalation (i.e., smoking rather than injecting), which is now the primary route of consumption related to fatal overdoses in BC. Like other clinics, Crosstown also does not permit carries. If granted the exemption, DULF and VANDU’s model could fill those gaps.
Complexity of substance use disorder as “disability”
“Substance use disorder” (SUD) is considered a disability, and therefore people with SUD are classified as a protected group under section 15 of the Charter and BC Human Rights criteria. However, SUD remains contested in its cause, symptoms and recurrence. SUD is a replacement diagnosis for substance use “dependence” and “abuse,” which among many flaws lacked diagnostic validity. As a protected ground, disability has been defined in Canada’s Accessible Canada Act as “any impairment…whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society.”
SUD, understood as an impairment with contested and expansive definitions, should be interpreted broadly. The Death Review Panel showed that from 2017-2018 only 35% of people dying by fatal overdose had received a formal diagnosis of SUD. Reasons for this should be understood as complex (i.e., it is a symptoms-based diagnosis, and there are delays and discrimination in the medical system of people who exhibit SUD symptoms and/or who use drugs). The contested definition of SUD combined with the continued monopoly of access to a regulated supply through the medical system that discriminates against people with SUD symptoms (i.e., people who use drugs), means that narrowly defining SUD risks delaying life-saving measures during a formal public health emergency.
Deprivation of life
In short, people are dying due to bureaucratic delays; a balance of harms skewed via vague claims; limited reach and discrimination within the medical system; and, the shifting and uncertain definition of SUD. Importantly, these restrictions to access are creating delays to a protected group, which should be seen as deprivation of security of the person – both in terms of possible death and quality of life indicators. Charter precedence in R. v Morgentaler and Rodriguez v. British Columbia was clarified in 2005 through Chaoulli v. Quebec, “Where lack of timely health care can result in death, the s. 7 protection of life is engaged.” Whereas the formal healthcare system has neither the infrastructure nor capacity in place, DULF and VANDU, who have support from the health authority, should have their denial struck down and application reconsidered.
Concept of harm reduction as catalyst for Section 7 evolution
In the Insite injection site judgment, Canada vs. PHS Community Services Society, the Supreme Court of Canada found that the CDSA’s overarching prohibitionist nature as a barrier to the site’s operation was “grossly disproportionate” as a legal test defined by “state actions…or responses to a problem that are so extreme as to be disproportionate to any legitimate government interest.” The denial of VANDU and DULF’s application to run a single compassion club, while seven people die each day in BC during a years-long public health emergency, is an extreme state action.
As Alana Klein articulated in a 2015 Dalhousie Law Journal paper, the Insite ruling “de-emphasized moral disapprobation as a legitimate basis for criminalization in favour of empirical examination of both the damage that the criminal law can do and its effectiveness in serving its purposes.” Klein also outlined how the Malmo-Levine decision, although ultimately unsuccessful in striking down cannabis prohibitions, did not consider “society’s collective disapproval of marijuana use” in the reasoning for judgment.
Conclusion
DULF saved lives. DULF and VANDU’s compassion club models have the potential to undo decades of well-documented societal harm perpetuated by the CDSA’s framework. Their application for an exemption to the CDSA amid a public health crisis deserves to be reconsidered.
