09/30/2026
An explanation of the DULF ruling:
“BC Court Strikes Down Canada’s ‘Possession for the Purpose of Trafficking’ Offence in theDULF Case”
by Kyla Lee Sept 29, 2026
“Today the BC Supreme Court declared one of the most frequently charged drug offences in Canada unconstitutional.
In R v Kalicum, 2026 BCSC 1855, Madam Justice Murray found that section 5(2) of the Controlled Drugs and Substances Act (CDSA), which makes it a crime to possess a controlled substance for the purpose of trafficking, violates sections 7 and 15 of the Charter. She declared the section of no force or effect, then suspended the declaration of invalidity for six months to give Parliament time to respond. She then stayed the convictions of Jeremy Kalicum and Eris Nyx, the co-founders of the Drug User Liberation Front (DULF).
It is the most significant drug law ruling out of this province since the Supreme Court of Canada kept Insite open in 2011. It is also a detailed, evidence-based account of what happens when governments let politics drive their response to a public health emergency.
WHAT DULF DID
Kalicum and Nyx are harm reduction workers in the Downtown Eastside. Between them they have responded to more than 100 overdoses. By 2021 they had watched enough friends, co-workers and neighbours die from a poisoned street supply of drugs that they designed a program to do something about it.
The DULF Compassion Club worked like this. DULF bought he**in, co***ne, and methamphetamine from the dark web. They then had the drugs tested at UBC and UVic for fentanyl, benzodiazepines, and other contaminants, then packaged and labelled them with their contents and health warnings. It sold them, at cost, to screened members who were over 18 and already using those drugs. It bought them on the dark web because no legal source existed. Which is an important part of why the Court ruled the way it did.
DULF knew this was illegal, so it asked permission first. On August 31, 2021, it applied to the federal Minister of Health for an exemption under section 56(1) of the CDSA. That exemption would have allowed them to distribute the drugs lawfully. Health Canada declined the exemption… but it took almost a year to do so. By the time DULF followed up, 1,333 (additional) British Columbians had died from toxic drugs. DULF challenged the refusal in Federal Court. That judicial review was argued in March 2024. As of the last day of the criminal court hearing in July 2026, the Federal Court still had not released a decision.
In the meantime, the province backed DULF. The BC Ministry of Health gave DULF a storefront in the Downtown Eastside at no cost and designated it an overdose prevention site. Vancouver Coastal Health signed a funding agreement worth up to $200,000 a year for DULF’s drug checking and overdose prevention services. The Ministry knew DULF was selling tested drugs to members. So did the Vancouver Police Department. DULF published its results in peer-reviewed journals, gave interviews, and invited officials to visit.
The program worked. In its first year there were no overdoses involving the substances DULF supplied.
THEN THE ECONOMIST RAN A STORY
On September 8, 2023, The Economist published an article about the Compassion Club, with photos of Kalicum and Nyx inside the site. The political reaction was immediate. Pierre Poilievre called it a “disgrace” that the BC NDP would give tax dollars to “illegal drug dealers.” Justice Murray took the time to correct the record. The public funding paid for drug checking and the overdose prevention site, and DULF bought its drugs with money from community donors.
As a result of the political pressure and fallout, the BC Ministry of Health directed Vancouver Coastal Health to pull DULF’s funding and its lease. The VPD drug section, which in the judge’s words “was aware of DULF and the Compassion Club but had turned a blind eye,” opened an investigation.
Six days before the Compassion Club was scheduled to close, police executed a search warrant. They found co***ne, he**in and methamphetamine in two locked safes, mostly in DULF-labelled packages of 0.1 to 1 gram. The drugs were exactly what the labels said, with no fentanyl and no benzodiazepines. That was the whole point of the program.
Kalicum and Nyx were convicted of possessing for the purposes of trafficking in November 2025. The provincial exemptions covered testing, packaging and supervised consumption, but not selling. Their convictions were held in abeyance while they brought this constitutional challenge.
THE ISSUE AT THE CENTER OF THE CASE
The Crown’s position was that DULF’s problem was a failed exemption application, not the law. If DULF wanted to operate legally, it should have gotten an exemption.
Justice Murray found that the exemption was never really available. Section 56 of the CDSA lets the Minister exempt a program from the CDSA. It does not exempt anyone from the Food and Drugs Act, which separately prohibits selling any drug that lacks Health Canada market authorization. The only pharmaceutical he**in in Canada is authorized for one purpose, prescribed and supervised injectable opioid agonist therapy. Using it any other way makes it a “new drug” that needs its own authorization, a process one witness called at trial had been working through for more than a decade, at a cost of millions of dollars. The Food and Drugs Act amendment that would allow person-specific exemptions has never been brought into force.
So a program using illegally sourced drugs violates the Food and Drugs Act even with a CDSA exemption, and a program using legally sourced drugs cannot exist because there are no legally sourced drugs to use. The court called the section 56 exemption “illusory” in this context.
The judge also found a second problem with section 56. It is entirely discretionary. It has no standards, no timelines, and no requirement that the Minister prioritize health and safety. Justice Murray described the toxic drug crisis as “a political hot potato” and agreed that the lack of guardrails leaves the exemption power open to political pressure. An 11-month wait during a declared public health emergency, she noted, was not a failure of the scheme. The scheme allowed it.
An exemption no one can get is not a real meaningful safety valve.
WHY SECTION 5(2) VIOLATES THE CHARTER
The Crown conceded that section 5(2) engages the liberty of anyone who runs a program like DULF’s, because it exposes them to jail. The harder question was whether the law also engages the right to life and security of the person of the people DULF served. The court found it does, relying on the Supreme Court of Canada’s reasoning in Bedford, the s*x work case. Drug use itself is not a criminal offence. A law that stops people from protecting themselves against the risks of a lawful activity deprives them of security of the person, even if other factors also contribute to the harm.
The court then found that the deprivation breaches two principles of fundamental justice. The purpose of the CDSA is to protect public health and public safety. A law that criminalizes a program that saved lives and did not harm public safety captures conduct that advances the law’s own purpose, which makes it overbroad. It is also grossly disproportionate. Justice Murray drew directly on Bedford, where the bawdy-house law stopped s*x workers from moving to a safe indoor location while a suspected serial killer was preying on women on the street. Section 5(2), she wrote, keeps drug users from safer supply “while fentanyl and other highly dangerous contaminants prowl the street drug supply.”
The Crown leaned heavily on R v Lalancette, a 2022 Ontario decision rejecting a similar challenge. The court distinguished it on the facts. Mr. Lalancette delivered five kilograms of street he**in to another dealer, and the judge described him as “for all intents and purposes, a drug trafficker who claimed to have good intentions.” DULF was transparent, publicly supported, studied by researchers, and backed by the health authority.
THE CROWN & THE DEFENSE AGREED THAT SUBSTANCE USE IS A DISABILITY
The court found that by blocking any non-medical source of drugs of known content, section 5(2) has a disproportionate effect on people with severe dependencies, who cannot simply stop using, and pushes them back to a street market that exposes them to overdose, violence and exploitation. The Crown argued the right comparison was between drug users with and without a diagnosed disorder. Relying on the Supreme Court of Canada’s 2026 decision in Kanyinda, Justice Murray called that “an outdated understanding of the test.”THE CROWN BARELY DEFENDED THE LAW
Once a claimant proves a Charter breach, the burden shifts to the government to justify it under section 1. The government has spent years telling the public that non-prescription safer supply is dangerous. In this case it had a months-long hearing, with experts on the other side including the former Chief Coroner, a former Deputy Provincial Health Officer, and a member of Health Canada’s own Expert Advisory Group on Safer Supply. The Crown called no evidence to contradict any of them. The judge described that as being “of marked significance.”
The Crown did not plead justification at all in its outline of position. It gave section 1 a single paragraph in its written argument. The court found the law fails the minimal impairment test, because it criminalizes activity that advances the CDSA’s objectives, not activity that undermines them.
So the Government’s case against safer supply is loud at the megaphone and quiet in the courtroom. When it had to put evidence behind the rhetoric, it called none.
THE REMEDY
Justice Murray declared all of section 5(2) of no force or effect. The Crown asked her to limit the declaration to he**in, co***ne and methamphetamine. She refused, because the problem the case exposed is the absence of any legal pathway to non-medicalized safer supply, whatever the drug.
The Crown asked for a 12-month suspension of the declaration of invalidity. The court gave only six months. “It has been over 11 years since the toxic drug crisis was declared a public health emergency,” she wrote. “It remains an emergency.” The Crown can apply to extend the suspension if Parliament needs more time.
Relying on the Supreme Court of Canada’s decision in Ontario v G, she also granted Kalicum and Nyx individual stays of proceedings. Their convictions are stayed. The Crown had accepted that individual exemptions would be appropriate if the challenge succeeded.
WHAT THIS MEANS IF YOU ARE CHARGED WITH POSSESSION FOR THE PURPOSE OF TRAFFICKING IN BC
Section 5(2) remains fully in force today. The declaration is suspended for six months, and nothing in this decision makes it legal to possess drugs for sale in the meantime. If you have a charge before the courts, it has not gone away. But the door is open to mount a similar constitutional challenge.
Expect the federal Crown to appeal to the BC Court of Appeal, and to ask that the suspension be extended while it does. This case may well end up at the Supreme Court of Canada.
The declaration strikes down the whole section, but the reasoning is built around a transparent, not-for-profit, health-focused program. The court distinguished the ordinary drug dealer in plain terms. Anyone hoping this decision provides a defence to a commercial trafficking case should read Lalancette’s treatment in these reasons carefully. The decision also leaves untouched the separate offences of trafficking under section 5(1) and simple possession under section 4.
Under the Supreme Court of Canada’s decision in R v Sullivan, a superior court’s declaration of invalidity binds the provincial courts in that province. It does not bind courts in other provinces. For now, this is a B.C. ruling.
If you are facing a drug charge, the details of your case matter more than any headline. Talk to a criminal defence lawyer about how this decision, and any appeal, may affect you.
SIX MONTHS
The court said the current law makes it impossible to run a program that every expert panel has recommended, and that the Charter does not allow that. The judge identified the fixes herself. Parliament can amend the Food and Drugs Act regime, and it can give section 56 exemption decisions real structure.
Kalicum and Nyx did in the open what the Coroners Service, the Provincial Health Officer and Health Canada’s own advisors told government to do. Health Canada’s answer took eleven months. The province’s answer took one magazine article. The VPD’s answer was a search warrant. The court’s answer took months of evidence, and it is the only one of the four that was based on any (evidence).”
