An upcoming ruling from Canada’s Federal Court could have a radical impact on the country’s drug laws.
In 2021, Drug User Liberation Front (DULF) and Vancouver Area Network of Drug Users (VANDU) applied for an exemption to Canada’s prohibitionist Controlled Drug and Substances Act (CDSA) to start a compassion club, where they could test and label illicit substances people use before distributing them to its members.
In 2022, after 10 months of bureaucratic inaction, the Canadian government rejected the application. VANDU and DULF promptly filed for a judicial review of Canada’s decision.
On Mar. 7 and 8, 2024, the two groups finally had their day in court. While the hearings have concluded, the court’s decision could take months.
Compassion clubs to save lives
British Columbia (BC), where VANDU and DULF are located, is the epicenter of Canada’s drug poisoning crisis. At the time of their exemption application, 8,000 people had been killed directly by the unregulated drug supply since it had been declared a public health emergency in 2016. Since then, a further 5,000 lives were lost.
Despite no permission, DULF and VANDU knew that a regulated drug supply was needed to save lives. They ran the compassion club for roughly a year until it was raided and closed by the Vancouver Police Department in October 2023. Peer reviewed research into the club’s results, published shortly after its closure, revealed that the club massively benefited its members and their community – not one member died. People’s involvement in the compassion club statistically lowered their odds of overdosing, a needed intervention when seven people die per day.
The compassion club model is also seemingly supported by the local government’s “Death Review Panel,” which investigated drug poisoning deaths in BC. The Panel’s primary recommendation was for the government to urgently build up non-medical access to a regulated supply to reduce deaths by requesting a CDSA exemption. This would essentially run a programme similar to DULF’s compassion club. However, the government rejected the Panel’s recommendation the same day it was received.
In a press release issued on the case, former DULF compassion club member Howard Calpas stated that the exemption rejection “was nonsense.”
“I was so disappointed. People are dying. I hate the fact that every week I find out another person I know has passed away. Drugs aren’t the problem, tainted drugs are the problem – that’s what’s causing this grief,” he added.
Judicial Review Framework
To succeed in their case, DULF’s legal team must prove that Canada’s decision was “unreasonable.” Courts have written at length about what “reasonableness” means in judicial review, most recently in 2019 (Vavilov) and 2023 (Mason). This standard is used to assess whether government bureaucrats meaningfully “account for the central issues and concerns” of applications when they make a denial, as they did against DULF and VANDU.
The court can now rule to uphold Canada’s rejection, or tell Canada they must reconsider the exemption request (with various levels of guidance from the court); or “mandamus,” a rare situation where the court mandates the government to approve the exemption request.
DULF and VANDU’s legal team made the case that the Canadian government’s decision should be overturned because it failed to meaningfully account for context, facts and Charter rights.
Legal Context: Constitutional Right to Security of the Person
Section 7 of Canada’s constitutional Charter states that “everyone has the right to life, liberty and security of the person.” In theory, this right protects people in Canada from government actions that put health or wellbeing at risk.
In 2011, The Supreme Court of Canada concluded that the government could not shut down Insite – North America’s first sanctioned injection site – because it infringed on people’s Section 7 rights.
DULF and VANDU’s original application expressed that the exemption should be approved because of their Section 7 rights. When Canada issued their rejection, however, these rights were not mentioned; this could mean people’s Charter rights were not considered.
In court, Canada responded that their decision implicitly considered these rights by acknowledging the massive loss of life associated with toxic drugs.
Canada further stated that Section 7 only applies where the government is actively endangering health and safety, and that their rejection merely maintains the status quo.
This position is hard to accept when the status quo implies accepting that seven people must die a day from a toxic drug supply, when there are tried and tested interventions that can save lives.
Source: Mike W.
Factual Context: Undefined fears of dark-net crime
When Canada denied DULF and VANDU’s application, their stated main concern was that the model required obtaining drugs through “dark-net” sources.
DULF and VANDU have clarified many times, including in their original application, that dark-net sourcing was the only available option, but their longer-term goal is to obtain substances through sanctioned sources – made possible with a CDSA exemption.
Whether Canada grants or denies the exemption, drugs would always be procured from sources possibly linked to “organized crime,” (legally defined as a group of three or more people involved in any illegal activity) due to their continued criminalization. The compassion club would not increase the overall consumption of illegal substances, as the club’s members already use drugs.
Canada said that their arguments underplayed the seriousness of illegal activity, although they agreed that War on Drugs policies cause harm. Nonetheless, the government cannot take an “ends justify the means” approach when it comes to criminal activity, they added. However, the legal team replied that this is the level of analysis required under Section 7.
Section 7 prevents bureaucrats from making decisions where the purpose behind their decision (i.e., condemning dark-net crime) is outweighed by the impact the decision will have (i.e. overdose and other life-altering harms caused by the toxic drug supply).
Given the public health emergency context of overwhelming death, the government not wanting to risk getting their hands a little dirty is not a reasonable justification.
Litigation through technicalities
Canadian administrative law and its processes tend to turn life-altering topics into technical debates. In DULF and VANDU’s judicial review hearing, this was on full display: while many research reports were referenced as footnotes in original submissions, Canada argued that only evidence that they had clicked on should be considered.
However, this omission was contested by the judge of the federal court, and after some legal debate, he ultimately stated that Canada’s position went against the spirit of judicial reviews.
This moment echoed the words of Cindy Blackstock, who spearheaded a lawsuit in 2016 against Canada for the systematic underfunding of programmes for Indigenous children and families. She reflected that “it became clear that Canada was going to litigate the case on legal technicalities, instead of directly engaging with the factual question” of the case.
While this is a norm of our legal system, it is a disturbing reminder of the bureaucratic limits courts face in addressing pressing crises.
Regulate the supply before we die
In BC alone, there are an estimated 225,000 people who use drugs from the illicit, unregulated market. This is roughly 5% of the adult population, which is slightly belo
w the global average of 5.5%. The model offered by DULF and VANDU disrupted the toxic drug supply that is killing seven Canadians per day.
As Nicole Luongo, the systems change coordinator at the Canadian Drug Policy Coalition said in a press release, “the DULF compassion club is a community-led response to a preventable crisis. It builds on a long and diverse tradition of organizing from below.”
“DULF’s direct action to prevent overdose death will be vindicated by history,” echoed Aaron Bailey, a member of the DULF network. “Once, illegal activities like syringe exchange, safe consumption sites, naloxone diversion, and buyers clubs for HIV and AIDS medications also arose out of public health emergencies.”
The DULF and VANDU legal team made a strong case to argue that the exemption’s rejection was unreasonable. We remain hopeful that their application will be sent back to the government for reconsideration, at the very least.
By our assessment, DULF and VANDU’s model of community-run compassion clubs deserves urgent exemption. And while the final outcome is not guaranteed, we need to do everything in our power to ensure this crisis is taken seriously.
Whether the courts make the government reconsider this case or not, undercutting the poisonous supply cannot happen soon enough – especially for the seven people who will die tomorrow.
