Republished from Drug Data Decoded with permission. Minor editorial changes have been made.
On Nov. 7, the co-founders of the Drug User Liberation Front compassion club, Eris Nyx and Jeremy Kalicum, were found guilty by BC Supreme Court Justice Catherine Murray on three counts of possession for the purpose of trafficking under the Controlled Drugs and Substances Act.
Justice Murray ordered that Nyx and Kalicum’s convictions be held in abeyance pending the results of DULF’s Charter challenge to the CDSA charges, which begins on Nov. 24. In effect, this means Nyx and Kalicum’s convictions are stayed until the challenge is heard.
Justice Murray repeated several times that Nyx and Kalicum’s intent was clear: they sought to save people’s lives in the face of a public health emergency.
“There is no question that their intentions were – and are – good. They wanted to save lives,” Justice Murray said in a ruling that raises serious questions about whether these charges can stand up to the Charter. The Charter sections being used in the challenge include s. 7 and s. 15, which together proclaim the right to life, liberty, and security of the person, as well as protect equality interests.
In her ruling, Justice Murray took the Crown’s position that DULF’s exemption for an urgent public health needs site (UPHNS) covered the possession of drugs onsite, but not their procurement and/or distribution, even if the intent of the distribution was to save lives.
DULF openly declared before, during and after its formal operation from August 2022 until the October 2023 raids that they were procuring drugs from the dark web, testing them at gold-standard laboratories, and providing these regulated drugs at cost. Provision of DULF’s tested drugs was limited to 43 pre-approved compassion club members at the time of the club’s closure (some sources indicate there were 47 members), who already used drugs at the time of enrolment.
DULF applied to provide drugs solely from legal sources in 2021, but this application was rejected by the federal government after a year-long consideration.
According to documents obtained by Drug Data Decoded, from 2020 to 2023 the federal government convened an “Expert Advisory Group on Safer Supply” comprised of thirteen drug policy experts from across Canada. When Drug Data Decoded tried to obtain the advisory group’s final report through an access to information request, Health Canada redacted the document on the grounds that it constituted “advice from officials” and could be “injurious to federal-provincial affairs.”
Throughout the trial, DULF’s lawyers demonstrated that the compassion club had social license to operate.
In her ruling, Justice Murray emphasized the support provided by the region’s medical health officer.
Also included in the evidence were phone calls and emails of support from the Vancouver Police Department—the same VPD who would later raid the club and arrest Kalicum and Nyx. At court, Justice Murray read out VPD Sergeant Cheah’s claims that he did not know about the UPHNS exemption or the overdose prevention site exemption provided by Vancouver Coastal Health. Justice Murray listed a number of reasons why Cheah’s claim could be improbable, including that the exemptions were mentioned in The Economist article that Cheah claims sparked his investigation, and that copies of the exemptions were posted up around the compassion club site that his department raided.
In Oct. 2023, the VPD abruptly arrested Kalicum and Nyx, raided their homes and closed the club. The storefront had already been preparing to vacate the space six days later, after Vancouver Coastal Health ended the club’s lease following some political pressure.
Justice Murray spoke candidly about the moral panic concocted around the DULF compassion club, reading out Pierre Pollievre’s statement that it was a “disgrace.” She singled out backbenchers in the provincial legislature, including former police officer Elenore Sturko for contributing to an “outcry.” Sturko was in attendance as Justice Murray read out her ruling. Murray also emphasized that DULF purchased drugs with private donations, dispelling the politically-fuelled conspiracy that public funds had been allocated to this end.
Justice Murray expressed that while DULF carried out life-saving work, their exemption did not cover the distribution of their tested supply to DULF members, bringing a disappointing close to a case that has put the organizers’ lives on pause for over two years.
The Canadian Drug Policy Coalition has called the VPD raids “an act of political and moral cowardice.” Four Order of Canada recipients wrote in The Tyee that DULF had been operating under “tacit permission to demonstrate the inappropriateness of the criminal law,” while the VPD’s actions meant “people would die.”
Responding to the police raids that left them in peril, five DULF compassion club members wrote in support of Kalicum and Nyx. “We speak out in support of their actions with DULF, actions that opened up possibilities for us, for our community, and for drug users and people everywhere,” they stated.
Compassion club models
While small in scale, DULF’s compassion club demonstrated a tremendously impactful intervention into BC’s toxic drug crisis in reducing deaths and other social harms.
As Columbia University neuroscientist Carl Hart wrote in The Nation, “their goal was to prevent overdoses by making available drugs devoid of dangerous contaminants. And it worked.”
It is estimated that close to 54,000 people have died in Canada from opioid toxicity since 2016.
In BC alone, over 13,000 lives were lost between the declaration of a provincial public health emergency in April 2016 and September 2023.
Over half of these deaths involved fentanyl, a strong synthetic opioid more potent than heroin, and typically mixed with other ingredients and adulterants. Fentanyl is popular because of its potency and price, meaning a small amount can go a long way. More concentrated opioids such as fentanyl drive profit by making it easier for those along the supply chain to evade law enforcement.
Enrolment in DULF’s compassion club resulted in decreased nonfatal overdose and a decrease in overdoses requiring naloxone, according to peer-reviewed research published about the project. No club member died during its year-long pilot study.
Various safe supply models across Canada have demonstrated positive outcomes. They have shown a capacity to reduce strain on parts of the healthcare systems that are poorly positioned to manage the toxic drug emergency, at a moment when emergency rooms and response systems are failing.
Justice Murray noted that during the October 2023 raids, drugs seized from the locked safe located in the DULF storefront were found to contain no fentanyl, fentanyl analogues and/or benzodiazepines, indicating that the club was operating rigorously according to its stated premise of supplying tested and labeled cocaine, methamphetamine and heroin to its members.
Impacts of the unregulated drug supply are linked to the tragic loss of life, increased violence and harm associated with the drug market and supply, including gendered violence.
Ending a forever emergency
More than two years ago, Vancouver-based journalist V.S. Wells asked, “How can an emergency last this long?”
While DULF has shown a way out, power and prevailing morality continue to hold the emergency in place.
Compassion club trials to reduce the number of people dying of drug toxicity were endorsed by the BC government’s expert Death Review Panel in 2023 and by the Office of the Provincial Health Officer in 2024. However, under David Eby’s leadership, the BC NDP rejected the Death Review Panel’s primary recommendation to reduce deaths before it was even announced, which blindsided the Chief Coroner. The PHO’s recommendation was treated similarly.
Justice Catherine Murray acknowledged that “Mr. Kalicum and Ms. Nyx are agitators. They want to make change” during a time of inadequate government response, implying that direct community action was required to make a difference. Nyx and Kalicum openly and bravely put their lives on hold to address an overwhelming and debilitating public health issue, using the tools available to them.
A successful Charter challenge could result in DULF’s charges being overturned. It could also lead to parts or the whole CDSA being struck down as unconstitutional, including section 5(2) which makes up the UPHNS exemption.
DULF will be back in court on Nov. 24 to begin constitutional arguments.
Access to information files provided by Euan Thomson.
To support DULF’s Charter challenge, consider donating to them directly here.
The complete ruling can be downloaded here: FULL – DULF VERDICT
Note: A separate administrative legal challenge to Health Canada’s decision to reject DULF and the Vancouver Area Network of Drug Users’ application to source, regulated and distribute drugs through a sanctioned compassion club was heard in March 2024. A final decision continues to be delayed.