“Let’s Go After This Whole Thing”—DULF Challenges Criminal Charges

    Vancouver’s drug-user rights movement is bracing for what could be yet another long legal battle ahead, as the Drug User Liberation Front (DULF) files a constitutional challenge to recent criminal charges against two of its founders.

    Eris Nyx and Jeremy Kalicum began operating DULF’s compassion club in 2021—selling tested heroin, cocaine and methamphetamine to 47 members as a means of protecting them from the uncertain dosages and adulterants of the unregulated market—after Health Canada had denied DULF an exemption to the Controlled Drugs and Substances Act. The group had sought a Section 56 exemption, a safety valve in the CDSA that allows the government to exempt certain activities prohibited under the act if “the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest.”

    Two years into DULF’s project, political winds in British Columbia had turned against harm reduction and the compassion club—which had drawn media attention, including a September 2023 article in the Economist.

    In response to the growing backlash, BC Premier David Eby “concocted some consternation about the purported revelation,” as one observer put it. The Vancouver Coastal Health Authority soon cut its CA$200,000 contract with DULF to operate an overdose prevention site. Then, on October 25, the Vancouver Police Department raided DULF and arrested Nyx and Kalicum.

    The VPD raid drew its own backlash from people who use drugs and their allies, as Filter previously reported—including a rally in November 2023, and another, drawing solidarity from abroad, in January. No charges had been laid, and organizers believed their pressure had given prosecutors pause for thought.

    But on May 31, Nyx and Kalicum were finally charged—each with three counts of Possession for the Purpose of Trafficking, which could theoretically carry sentences of up to life imprisonment.

    It’s unclear why the charges have been laid now. Earlier in 2024, the Federal Court of Canada heard legal arguments as DULF’s lawyers contested Health Canada’s original denial of a CDSA exemption. The court’s decision—which could set a legal precedent in DULF’s favor—is still pending.

    “I wouldn’t expect the state to wait until we have a stronger case,” Mullins said of the timing. “I’m not surprised at all.”

    Garth Mullins, a member of the Vancouver Area Network of Drug Users and one of DULF’s co-founders, thinks Crown lawyers were eager to go after Nyx and Kalicum before that federal case could potentially hinder the prosecution.

    “I wouldn’t expect the state to wait until we have a stronger case to go and lay charges,” he told Filter of the timing. “No, I’m not surprised at all.”

    In early June, DULF announced that it would pursue a constitutional challenge to the charges. The challenge will particularly focus on Section 7 of the Canadian Charter of Rights and Freedoms, which provides for the right to “life, liberty, and security of the person.” That’s also one of two sections of the charter that DULF is claiming Health Canada violated in denying the exemption.

    DULF’s lawyers didn’t respond to Filter’s request for comment. But Stephanie Dickson, its criminal case lawyer, told Vancouver magazine the Tyee she was “surprised that, given our clients’ life-saving efforts, there would be a public interest in prosecuting such efforts.”

    Charges in BC are laid by Crown prosecutors, and must meet some requirements. These include a reasonable prospect of conviction and a public interest in prosecuting the matter.

    Advocates for DULF, who are now raising funds for the legal case, have argued since October that there is no public interest here, given the positive health impacts of the compassion club.

    One peer-reviewed study, published in February, found reduced likelihood of non-fatal overdoses among compassion club members. Other preliminary findings note zero fatal overdoses among membership; fewer negative police interactions; fewer hospitalizations; lower participation in illegal activities; increased safer practices like using clean needles and carrying naloxone; and a reduction in drug-related violence.

    Besides the positive impact, Tim Dickson, DULF’s lawyer in the Health Canada judicial review, told the Tyee that opposition to the actions of Nyx and Kalicum fails to mention their motivation: saving their friends’ and neighbors’ lives.

    “Their motives are so proper in this case, and to hear those calls for incarceration is very disturbing,” he said.

    However, this is par for the course with drug policy and harm reduction, Mullins observed—and such confrontations continue a long history of how change gets made.

    “This is civil disobedience. This is how we got needle distribution, how we got InSite … by people doing these activities before they were permitted.”

    “The truth of this is that we’ve had people dying in huge numbers for eight years,” he said, “and the government hasn’t really done very much to stop that, and they left it up to us. They left it up to the community.”

    “But also, this is civil disobedience,” Mullins continued. “This is how we got needle distribution in Vancouver, how we got InSite [North America’s first sanctioned safe consumption site], … by people doing these activities before they were permitted, not waiting for permission, and just going ahead. And it’s not just us. Plenty of marginalized people have won rights by breaking unjust laws in order to get some rights for themselves.”

    Mullins noted that while the two DULF court cases—the Health Canada judicial review and the criminal case—may hinge on the same principles, the two sets of potential outcomes, all highly significant, are quite different.

    The judicial review could either pave the way for compassion clubs to receive Section 56 exemptions nationwide, or confirm a major obstacle to this happening.

    Possible outcomes of the criminal case and DULF’s constitutional challenge, meanwhile, range from Nyx and Kalicum being left in prison to the jeopardization of the entire legal framework of Canadian drug prohibition.

    That latter outcome would likely require years for the case to reach the Supreme Court of Canada, and then for the court to actually be willing to take such an atypical step. Mullins is under no illusions about the likelihood of that.

    And although a positive court ruling would be a milestone for drug-user rights, it might still change less than you’d think, Mullins noted. After the Supreme Court of Canada struck down criminalization of sex work in 2013, for instance, the former Conservative government under Stephen Harper found new ways to criminalize sex work.

    To this point, Mullins noted increasing rhetoric and actions from conservatives around invoking the “notwithstanding clause”—a provision in the Charter of Rights and Freedoms that allows governments to override the charter in certain cases.

    “It wasn’t our first choice to do this route, but the fact that the cops want to lock up Eris and Jeremy leaves us no choice but to fight, and the best defense is a good offense.”

    This clause has been used most frequently in Quebec, but has also been invoked in Ontario to protect back-to-work legislation from court rulings, and in Saskatchewan to force teachers to ask permission from transgender students’ families if students want to informally change names or pronouns used in class.

    Federal Conservative Party leader Pierre Poilievre, broadly expected to win the next federal election in fall 2025, has said he would use the notwithstanding clause to maintain stricter bail laws, among other things.

    “Pierre Poilievre and the Conservative Party seem like the kind of people who do not mind setting aside the Charter of Rights and Freedoms if it fits their purposes,” Mullins said.

    Nonetheless, court battles remain an important piece of the broader puzzle in the struggle for harm reduction.

    “It wasn’t our first choice to do this route, but the fact that the cops want to lock up Eris and Jeremy leaves us no choice but to fight, and the best defense is a good offense,” Mullins said. “So let’s go after this whole thing. Let’s just see what the court says when all the facts are put in front of them.”



    Photograph of participants in the November 2023 rally for DULF by Dustin Godfrey

    • Dustin is a freelance journalist based in unceded Coast Salish territories in so-called Vancouver, Canada. They cover issues around drug policy, housing and justice.

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