Amid a wave of hostile public and political discourse, several cases before the courts in British Columbia and Canada could see advances in, or protections of, drug users’ rights.
Turning to the courts may offer a way for people who use drugs to advance their rights in a non-partisan setting that tends to be less swayed by fear-mongering. But advocates note that it’s far from a perfect solution—particularly if it doesn’t come with a suite of other tactics, including, crucially, grassroots organizing.
The court cases are varied in scope and were filed in different years. But most are currently active just as the BC government has sought to scale back its decriminalization pilot project and appears to have abandoned meaningful expansions to its safe supply program. The province has shrunk away from advancing drug policy following resurgent right-wing moral panic over drugs.
The cases include a lawsuit filed by Rodney Madryga in 2023, seeking class action status against BC’s College of Physicians and Surgeons for pressuring doctors to reduce prescribing of opioid pain medications.
In another case, filed with the Federal Court in 2022, the Drug User Liberation Front and Vancouver Area Network of Drug Users have secured a judicial review of the decision by the federal public health department, Health Canada, to deny DULF’s application to run a non-prescriber compassion club providing checked cocaine, methamphetamine and heroin to participants. That review begins on March 7.
DULF founders Jeremy Kalicum and Eris Nyx are also currently facing potential criminal charges after running the compassion club despite Health Canada’s denial.
The Harm Reduction Nurses Association action successfully obtained a temporary court injunction against the law.
There was also a notable 2021 civil claim, filed by the Canadian Association of People Who Use Drugs and seeking an order to strike out possession charges from Canada’s Controlled Drugs and Substances Act; the current status of this case is unclear, however, with no recent court updates.
Finally, in October 2023, the Harm Reduction Nurses Association (HRNA) launched legal action in the BC Supreme Court against a law that would have effectively dismantled BC’s “decriminalization” pilot by banning drug use in nearly all public spaces. The action successfully obtained a temporary court injunction against the law. The BC government’s request to appeal the injunction was rejected by the BC Court of Appeal on March 1, while a full constitutional challenge has yet to be heard.
Caitlin Shane is a lawyer with Pivot Legal Society who, alongside Canadian Drug Policy Coalition lawyer and executive director DJ Larkin, is on the team representing the plaintiffs in the Harm Reduction Nurses’ Association case.
Shane frames legal action as one of an array of tactics that, taken together, can form a well-rounded movement.
“Always, always, always, I think that the legal strategy has to complement, or better yet, be deeply connected to, a movement.”
“I don’t think it’s the best tactic. It’s certainly not the only tactic,” she told Filter. “But I think it can be useful in certain instances … It can sometimes result in wins that feel good.”
“I also think sometimes it can be the best way to indicate to the government that there are consequences for passing, or attempting to pass, dangerous laws,” she continued. “But always, always, always, I think that the legal strategy has to complement, or better yet, be deeply connected to, a movement.”
That’s true of many of the cases Pivot, as a group of movement lawyers, works on.
The HRNA action combined legal expertise with expertise from the HRNA and the Eastside Illicit Drinkers Group for Education, as well as reports from the BC Centre on Substance Use and analysis from University of Victoria researcher Bruce Wallace.
Similarly, the DULF court case is embedded in activism, coming directly out of those in the drug-user movement acting to save lives when governments have so far refused — providing a safe supply of drugs outside of the prohibitive medical realm. And while charges are still pending against Nyx and Kalicum, those in the movement feel their ongoing pressure has held prosecutors back for now.
Legal precedents, once established, have a longer shelf-life than legislation. But that can be a double-edged sword.
“All of these things that we all work on separately, in sometimes what seems like silos, it can be a nice way for these things to come together,” Shane said. But she cautioned that it’s rare to have a law completely struck down—and that a positive court ruling doesn’t change the political environment.
“Government still has the ability to draft new laws. And they will,” she said. “And maybe this time, they’ll draft a law that’s less bad, that’s no longer unconstitutional, but it doesn’t mean that it’s going to be good.”
Legal precedents, once established, have a longer shelf-life than legislation. But that can be a double-edged sword.
“It can be fantastic, and it can also really make it harder to make your case,” Shane said. “The law is ever-evolving and -growing, but it is a system of precedents, where you’re constantly looking back to what previous courts have found … and that can hamstring you a lot of the time.”
While legal precedents can act as a ceiling for new legal actions, they can also be a series of steps towards advancing a movement. Cases like the HRNA’s build off of other cases that came before it, with one particularly high-profile case being the 2011 Supreme Court of Canada decision protecting Insite, North America’s first-ever legal safe consumption site, from being shut down by Stephen Harper’s Conservative government.
“There’s nuggets from these decisions that stand for very big principles that can help us in our movements, for sure,” Shane said. In the HRNA case, “we relied on a passage from [the Insite case] about fear of police driving people to use alone in alleys, and why that is harmful.”
So past cases with positive outcomes “are really important for building up our ability” to argue new cases in court.
“So often what is missing from the story is: How did it become possible for a court to come to that decision? How did public opinion shift?”
But again, court victories for people who use drugs will always rely heavily on their grassroots activism in the outside world. And Shane emphasized that cumbersome court processes should never weigh this down.
“Insite, the decision, was also one piece of what was ultimately years and years of direct action, civil disobedience, grassroots organizing that made that lawsuit possible,” she noted.
Before Insite, drug users had been running safe consumption sites illegally, proving their efficacy outside of the law, despite getting shut down by police several times.
“So often what is missing from the story is: How did it become possible for a court to grapple with these arguments and come to that decision? How did public opinion shift over time?” Shane said. “It’s because of all of the work of the community that went along before it and during it and after it.”
Photograph of a rally for DULF in November 2023 by Dustin Godfrey
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