On March 7th, lawyers for Drug User Liberation Front (DULF) co-organizers Eris Nyx and Jeremy Kalicum will appear in Federal Court to challenge Health Canada’s 2022 decision to deny DULF’s request for permission to legally operate a compassion club through an exemption from Canada’s drug laws.
The upcoming Judicial Review – Drug User Liberation Front v. Attorney General of Canada – was filed prior to the BC government’s crackdown on DULF and is expected to shed critical light on governmental obstruction of lifesaving action on the overdose crisis.
Nyx and Kalicum, who were arrested in October 2023, had operated a “compassion club” since the summer of 2022, prioritizing human life over the exemption denial. Under the DULF model, 47 club members who met specific eligibility criteria accessed tested, packaged and accurately labeled heroin, cocaine, and methamphetamine provided by DULF as a safer alternative to British Columbia’s ever-worsening toxic unregulated drug supply, which has killed over 13,000 people since 2016.
Eligibility criteria included history of substance use and active overdose risk – meaning DULF was offering tested and labeled drugs to people who would already be buying prohibited substances. In essence, DULF created safety for users without adding demand to the unregulated market.
Zero club members died while it operated. DULF demonstrated other positive results. A new, peer reviewed statistical analysis published in the International Journal of Drug Policy in February showed that involvement in the club was associated with large, significant reductions in non-fatal overdose (49%) and overdose requiring naloxone (63%).
By operating as a non-profit and providing tested and labeled substances at-cost, DULF introduced community-based regulations to the drug supply while saving lives. DULF claims to have diverted over $100,000 in potential profit, typically produced by street-level markups, from the volatile, unregulated drug market.
The DULF compassion club pushed the boundaries of popular acceptability and legality by taking direct action to address the drug toxicity crisis in the face of government inaction amidst an unrelenting public health emergency. While DULF’s civil disobedience should be praised, as noted by four Order of Canada recipients, the organization’s intent was to operate within the scope of the law, with purchasing drugs from an illicit market as an option of last resort.
DULF’s struggle for legality
On August 31 2021, one-year before the compassion club began operations, DULF and the Vancouver Area Network of Drug Users (VANDU) submitted a request to Health Canada for a Section 56(I) exemption to the Controlled Drugs and Substances Act (CDSA). The CDSA is the foundation of Canadian drug law, creating a framework for drug scheduling and criminal penalties for drug possession, possession for the purposes of trafficking, and trafficking. S. 56(I) grants the Minister of Health the authority to exempt people or organizations from the act for any “medical or scientific purpose” or reason that is “otherwise in the public interest.”
Exemptions under section 56 grant harm reduction sites, including supervised consumption sites and drug checking facilities, the legal protections required for service users and staff to safely possess, use, and work with controlled substances within the program site.
A landmark legal precedent was set by the battle to keep Insite open after Stephen Harper’s government denied an exemption to the safe consumption site. After a protracted legal battle with Harper’s Conservative government, the denial was struck down by the Supreme Court of Canada. As of this writing, there are 39 safe consumption sites operating pursuant to these exemptions across the country.
DULF’s application for exemption articulated an objective to establish a Compassion Club procuring supply from a legal, pharmaceutical supply chain and distribution center as a pilot for evaluation. If granted, the tested and legal supply would be distributed among VANDU members as a component of a rigorous study. In order to do so, DULF organizers and compassion club members would require the specific protections from Canadian criminal law provided by a S.56(1) exemption.
Despite its preference for utilizing pharmaceutical suppliers, DULF’s application acknowledged the difficulty of doing so. Without the active support of the federal government, accessing pharmaceutically produced alternatives to Vancouver’s illicit drug market would be impossible. Furthermore, if such support were to be offered, a virtually global monopoly on prescription heroin (diacetylmorphine) production and limited product choice stood to make collaboration with industry challenging. To address these barriers, DULF’s application included letters of support from a licensed prospective domestic manufacturer of diacetylmorphine and willing supplier for the club, as well as a federally-regulated distributor of prescribed safe supply drugs in B.C.
Letters of support for the proposed compassion club submitted alongside the application also included endorsements from the City of Vancouver, Vancouver Coastal Health, First Nations Health Authority, PHS Community Services Society, and the BC Centre for Substance Use.
If granted, the exemption would also permit DULF to receive funds from Health Canada’s Substance Use and Addictions Program (SUAP), the federal government’s largest funding stream for harm reduction-oriented pilot programs. A SUAP application was submitted in the spring of 2021 that, contingent on exemption from the CDSA, would support DULF to carry out its work.
Only if this direct and multi-layered request for legal sanctioning was refused would organizers consider accessing the black market to prevent death, with thorough safeguards in place.
Rejecting alternatives to the overdose crisis
On April 21 2022, 245 days after the original request was submitted and without communication in the interim, Health Canada Controlled Substances Director General Jennifer Saxe sent a letter to representatives of both DULF and VANDU informing them of Health Canada’s intent to reject their request for an exemption. Without such an exemption, the proposed compassion club could not be run legally or be eligible for any federal funds. A rejection from the SUAP program followed soon after.
In the letter, Saxe provided her rationale in rejecting DULF’s application. While Saxe acknowledged that DULF’s original proposal included a preference for accessing legal, pharmaceutical substances, the letter claims that the applicants had not provided enough information about how such a proposed model would operate.
The letter describes the exemption request process as iterative rather than a strict binary of “yes/no,” but with long lulls between correspondence, it appears that Saxe and Health Canada weaponized this discretion against DULF, rather than supporting their work to reduce the number of deaths. A Health Canada representative stated that the federal agency would not comment on matters before the courts when reached for comment by The Mainlander. The same representative confirmed that Health Canada was aware of the publication of DULF’s recent evaluation in the International Journal of Drug Policy, but would not provide further comment.
Without the information Saxe claimed was missing, she asserts that the “vast majority” of the application’s material is strictly related to accessing illicit substances from the dark web – DULF’s second, less desirable option. Speaking to the possibility of accessing the illicit market, Saxe communicated that any interaction with actors presumed to be affiliated with “organized crime” would not be permitted.
Health Canada’s reasoning struggles to hold up under careful scrutiny. DULF’s original application for an exemption had in fact included supporting information detailing exactly how, and by whom, legal substances would be acquired, stored, and distributed. Licensed pharmaceutical suppliers had been sought out and provided letters of support for the proposed compassion club, contradicting Saxe’s claim that such information had not been provided. Further, the exemption process is purportedly an iterative process and requests should have been made to submit additional details or provide clarification.
Saxe’s assertion that the “vast majority” of information provided to Health Canada by DULF related to an illegally operated compassion club is also questionable. A review of the application itself shows that, in addition to stating an intent to access legal supply chains if possible, detailed descriptions of proposed testing, packaging, member screening, distribution, financing, and evaluation are readily applicable to a legal model.
While DULF’s skepticism of the pharmaceutical supply chain’s ability to respond to urgent community needs under current regulatory conditions is warranted, it is not reasonable to infer that such criticism equated to a complete disavowal of legal pathways altogether.
Rather than work collaboratively with the applicants to support the creation of a functional system for sourcing pharmaceutical alternatives to street drugs, Health Canada shut the door on collaboration with DULF, forcing any compassion club that would follow into a state of legal precarity.
Crucially, Saxe’s rejection of DULF’s second stated path forward, accessing substances from the illicit market, is also not beyond ethical challenge.
In their May 2022 response to the Director General’s decision, representatives of DULF and VANDU argue persuasively that, in the absence of governmental action to replace toxic streets drugs contributing to mass death, purchasing, testing, and selling illicit substances at-cost would not result in a meaningful change to the illicit drug market while contributing to a net reduction in material harm to Canadian citizens by preventing drug poisoning death and improving the quality of lives of its members.
On technical and/or moral grounds, Health Canada’s decision to reject DULF’s request for a form of legalization left much to be desired, prompting organizers to consider legal responses available to them.
Judicial review: summary
Having received a formal rejection, DULF organizers applied for a judicial review, which is summarized in this previous Mainlander piece, an administrative legal process through which Health Canada’s decision to reject the initial request for an exemption is challenged.
In doing so, DULF and VANDU’s case likely rests on two core arguments. First, counsel for DULF and VANDU can assert that Health Canada did not appropriately consider the evidence presented to Health Canada at the time of the initial application. Federal authorities’ apparent unwillingness to consider information provided by DULF related to a desired legal pathway for the Compassion Club’s operation is likely to be challenged directly.
Importantly, the Court may only consider evidence available to Health Canada when the initial application was made. For example, DULF’s positive findings are unlikely to be admissible as evidence because this research was not available between 2021 and 2022. The strength of the challenge rests on the thoroughness of DULF’s initial proposal and Health Canada’s inability to provide concrete rationale for its rejection.
Second, DULF and VANDU argue that Health Canada failed to consider the implications on people’s Section 7 and Section 15 Charter rights in weighing its decision.
Under Section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), the Canadian state shall not infringe on the “right to life, liberty and security of the person,” except where doing so may be justified by “principles of fundamental justice.” DULF and VANDU could argue that, in denying their 2021 request for a S. 56(1) exemption to administer a Compassion Club, Health Canada’s decision placed people who use drugs at increased risk of harm and death related to the toxic drug supply.
Section 15 of the Charter guarantees a “right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on… mental or physical disability.” Pointing to the inclusion of diagnostic criteria for Substance Use Disorder (SUD) in the Diagnostic and Statistical Manual of Mental Disorders Edition (DSM-5), counsel for DULF argue that Health Canada’s denial of the exemption request was a discriminatory and likely harmful act towards a definable category of individuals with psychiatric diagnoses.
As a remedy, DULF is seeking a writ of mandamus, which would overturn Health Canada’s decision and require the body to reconsider DULF’s original application to run the compassion club. However, the implications of the review itself do not end with DULF. In clarifying and directly challenging the kafkaesque process by which interested parties can seek legal permission to operate Compassion Clubs, Drug User Liberation Front v. Attorney General of Canada stands to open the door for direct action and imagined legal futures beyond the drug war.
DULF Saved Lives
It should not be lost on the general public that, at the time of DULF’s upcoming administrative hearing, Nyx and Kalicum have established, delivered, and rigorously evaluated the DULF compassion club. Facing federal inaction to make available a legal pathway to undercut the toxic drug supply, DULF’s compassion club proceeded to do so in real, measurable ways. Only now have federal authorities returned to the original case, years after the fact (in which time DULF had successfully implemented a smaller scale project and evaluation) and following thousands of additional deaths.
Now, having released statistically rigorous positive findings for club members and awaiting possible criminal charges for their work, DULF organizers are asking Health Canada to turn back the clock on a process that would and should have legalized their “essential life-saving” work from the outset.
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A rally for DULF and press conference featuring speakers from DULF’s legal team, VANDU, and former Compassion Club members will be taking place at 850 West Georgia Street on Thursday, March 7th between 8AM and 9AM. Afterwards, legal observers from the DULF Solidarity Committee will attend both days of hearings. You can join the DULF Solidarity Listserv to stay up to date at freedulf.com.