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Outlaw Compassion Club Argues It Merited Health Canada's Support

Lawyers for a group that gave out safety-tested heroin, cocaine and meth without federal approval defended the project in court.

Michelle Gamage 14 Mar 2024The Tyee

Michelle Gamage is The Tyee’s health reporter. This reporting beat is made possible by the Local Journalism Initiative.

A Vancouver-based compassion club that was buying unregulated drugs, testing and then distributing them to people at high risk of injury or death got its day in court last week to argue why Health Canada should have worked with it to help save lives during the ongoing toxic drug crisis.

In 2021 the Drug User Liberation Front applied to Health Canada for an exemption from the Controlled Drugs and Substances Act, which would have allowed it to buy, handle and distribute heroin, cocaine and methamphetamine.

Health Canada denied that request. The compassion club went ahead anyway. Its co-founders have previously told The Tyee they had to do something to reduce harm during the crisis, even if it means breaking the law.

Last week lawyers for DULF and the Vancouver Area Network of Drug Users got two days in court to argue Health Canada was unreasonable and unconstitutional when it denied the request for an exemption from the Controlled Drugs and Substances Act.

Denying DULF’s exemption request violated the Charter rights of people who use drugs because it impeded their right to life and liberty, and punished people who are addicted to unregulated substances, which could be considered a disability, argued Tim Dickson, a partner with JFK Law LLP and Stephanie Dickson, associate council with Pender Litigation along with Kaelan Unrau, an associate at JKF Law.

Tim Dickson told the court in its rejection letter, issued July 2022, that Health Canada said it wouldn’t grant an exemption because DULF would be buying unregulated drugs which would support organized crime and breach international drug control conventions. Health Canada was worried this goes against the objectives of the Controlled Drugs and Substances Act, he added.

Tim Dickson said DULF’s compassion club would actually have no overall effect on crime because people who buy unregulated drugs are already buying from illicit drug dealers and therefore supporting organized crime. Compassion clubs can even reduce crime and violence because they help separate people from violent drug dealers and reduce people’s reliance on crime to support their drug use, he added.

DULF co-founder Jeremy Kalicum previously told The Tyee buying drugs from the dark web was relatively safe because you could find regular distributors you trusted and then send money and make orders online. The drugs would be shipped in discreet packaging through the mail, reducing any face-to-face interactions, he said.

The goal of the Controlled Drugs and Substances Act is to protect public health and safety, Tim Dickson said. DULF’s compassion club would support those goals too, he added, because a compassion club could provide a safe supply of substances to people at high risk of injury or death due to the toxicity of unregulated drugs and reduce crime by separating people from the violence of the trade of street drugs.

DULF was working towards finding ways to source drugs from regulated, licensed sources and had a tentative agreement to source diacetylmorphine, or pharmaceutical-grade heroin with Fair Price Pharma, a non-profit pharmaceutical company, Tim Dickson said. This showed DULF’s reliance on illicit sources would be temporary until it was able to find legal providers. However, none existed at the time of the application.

In its exemption application to Health Canada DULF asked for permission to buy unregulated cocaine, methamphetamine and heroin so it could test and distribute a safer drug supply of drugs to compassion club members. Kalicum and co-founder Eris Nyx submitted the application in August 2021 and were denied the exemption 11 months later in July 2022.

Nyx and Kalicum went on to form a compassion club without the exemption, enrolling 47 adults who lived in Vancouver’s Downtown Eastside and were at high risk of toxic drug overdose.

The compassion club was effectively shut down in October 2023 when Vancouver Police raised Nyx and Kalicum’s homes and workplaces and arrested the pair. Police have not yet laid charges.

Last week’s federal court hearing was for a judicial review of Health Canada’s decision to not grant DULF an exemption under the Controlled Drugs and Substances Act. A judicial review asks a federal justice to decide if a decision was fair.

Representing the attorney general was Adrienne Copithorne and Matthew Morawski who work as counsel for Justice Canada. The Tyee asked for an interview but was told they were not allowed to give comment.

In court Copithorne disagreed with Dickson’s allegations and emphasized Health Canada’s reason for rejecting DULF’s request: because it didn’t support buying heroin, cocaine and methamphetamines from illegal sources and distributing the drugs without any medical supervision.

Copithorne also said Health Canada considered the Charter rights of people who use drugs even though it wasn’t explicitly said in the rejection letter and that there is no precedent for allowing an organization to buy drugs from an illegal source.

Tim Dickson says the Judge Denis Gascon, who oversaw the judicial review, will likely make his ruling within two to four months.

To make the case for why denying the exemption violated a person who uses drugs’ right to life and liberty, Tim Dickson gave some background on the toxic drug overdose crisis.

In B.C. — and in much of North America — the unregulated drug supply is considered toxic because the drugs are so potent and contain a potentially deadly combination of substances like opioids and benzodiazepines, which can make the effects of opioids more powerful and make a person more likely to overdose.

Street drugs often contain the synthetic opioid fentanyl or its analogs which can be 10,000 times more potent than morphine, which means someone can take what they think is a normal dose and have it be a toxic amount.

This has led to unregulated drugs being recognized as the leading cause of death for people ages 10 to 59 in B.C., according to the BC Coroners Service.

B.C. currently has a safer supply program, where people who use drugs can talk to their doctor about getting a prescription for a pharmaceutical alternative to street drugs. These alternatives are often distributed at a pharmacy and are taken while supervised by a pharmacist.

Tim Dickson noted that the BC Centre for Disease Control says only five per cent of the total 100,000 people in B.C. estimated to have a diagnosable opioid use disorder have been able to access the prescription-based safer supply model since it was introduced in 2020.

The BC Coroners Service estimates 225,000 people in B.C. use unregulated drugs of any kind and are at risk of harm or death due to the unpredictability of unregulated substances.

Because only a fraction of people at risk have been able to access the existing safer supply program, B.C.’s former chief coroner and current provincial health officer have called for the province to expand its safer supply program and consider using a non-medical model as well, which many have been interpreted to mean compassion clubs like the one DULF was running.

Safer supply’s critics come from a variety of perspectives.

Clinicians who support harm reduction can be critical of safer supply because they don’t want to be “gatekeeping” people’s access to the service. This could be solved by expanding B.C.’s safer supply programs to include a non-medical prescription model, experts say.

Others raise concerns that hydromorphone prescribed through safer supply is not being taken by the person it is prescribed to and it is being sold on the street in a process known as diversion.

The BC Coroners Service has said it is keeping an eye out for this but so far there has not been a spike in overdose fatalities involving hydromorphone. The Canadian Institute for Substance Use Research previously told The Tyee the majority of hydromorphone prescribed in B.C. is for pain management, not safer supply.

Earlier this week B.C.’s solicitor general made a statement noting there is “no evidence" of widespread diversion from safer supply programs.

Considering the high toxicity of the unregulated drug supply and the fact that there are no accessible alternatives, Health Canada should have considered how DULF’s compassion club could have offered a life-saving intervention for people who use drugs, Tim Dickson said. In its application DULF noted how the compassion club would protect a person’s Charter right to life and liberty, he added.

Tim Dickson alleges Health Canada didn’t respond directly in its rejection letter to how the compassion club could protect Charter rights. This is grounds to throw the decision out and make Health Canada reconsider the exemption request or for the justice to order Health Canada to grant an exemption, he said.

Copithorne argued Health Canada indirectly acknowledged DULF’s claims around Charter rights in its response which, she said, was an adequate response in this case.

Tim Dickson also said Health Canada acted unfairly when it granted a Controlled Drugs and Substances exemption for B.C.’s decriminalization pilot project, which allows people to carry less than 2.5 grams of otherwise illegal substances for personal use, and for overdose prevention sites, where people can use unregulated drugs while being supervised so that someone can step in if there’s an overdose, but not for DULF’s compassion club.

If Health Canada can allow exemptions for an untold number of people who use drugs sourced from organized crime for those programs, it can’t deny DULF an exemption because it could similarly source drugs from organized crime, Tim Dickson said.  [Tyee]

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