Charges thrown out in ‘landmark’ decision on DULF’s constitutional challenge - here's what comes next

It was an emotional scene at B.C.’s provincial court on Tuesday morning as Supreme Court Justice Catherine Murray delivered the conclusion of her judgment on DULF’s constitutional challenge.

Justice Murray ruled that DULF (the Drug User Liberation Front) co-founders, Eris Nyx and Jeremy Kalicum, will not face jail time for drug trafficking charges related to their compassion club.

DULF’s was the first known compassion club of its kind to distribute tested, clearly labelled heroin, methamphetamine and cocaine of known potency at cost to its roughly 40 members. The compassion club ran from August 2022 until it was raided by police on Oct. 25, 2023.

In her decision, Justice Murray applauded the “selfless” efforts of Nyx and Kalicum to provide a regulated, safe drug supply to its compassion club members in the midst of a deadly, ongoing public health emergency.

"You selflessly put yourselves to the side for this cause, and it's something that most people wouldn't do, and for that I applaud you,” she said in court. “You should be very proud of yourselves. And it’s people like you who make a difference - and it has.”

Following Justice Murray’s decision, applause erupted in the courtroom across the crowd of roughly 50 people in attendance that morning.

Justice Murray’s decision made three main points clear: First, the court declared Section 5(2) of the Controlled Drugs and Substances Act (CDSA) unconstitutional. It noted that a non-medicalized safer supply program is urgently needed to reduce harms from the toxic drug supply crisis and save lives.

It identified that the CDSA, as it stands, lacks a clear and legally available pathway for a non-medicalized safer-supply program. Because there was no practically available safety valve under the CDSA, Section 5(2) was found to violate the section 7 Charter rights (the right to life and security of the person) of DULF co-founders and its members, and the section 15 rights (rights to equality under the law) of DULF’s compassion club members.

Second, given the urgency and magnitude of the ongoing crisis, Murray ruled that lawmakers would have six months to remedy this issue in legislation, rather than the usual 12-month period. If Ottawa does not do so within the six-month period, Section 5(2) of the CDSA will no longer be in force.

Third, she granted a stay on proceedings on the convictions against Nyx and Kalicum, effectively tossing out the charges against them.

What happens now?

“This is one of those landmark cases, they don’t happen often,” executive director of the Canadian Drug Policy Coalition, DJ Larkin, told Vancity Lookout. “But it will be up to the Crown now if they appeal, which I suspect they will.”

Two pieces of federal legislation work in parallel around drug regulation. First, the CDSA creates prohibitions surrounding possessing and interacting with certain drugs through criminal convictions.

Second, the Food and Drug Act allows private companies to manufacture and sell new regulated drugs after jumping through certain arduous regulatory hoops, such as clinical trials.

“The entire purpose of these pieces of legislation does not support what needs to happen,” Larkin added, referring to harm reduction. “I’m worried that the government will try to do the least possible.”

Larkin explained that a new FDA provision, not yet in force, could technically satisfy the need for a safety valve mechanism.

However, they added, much like Section 56 of the CDSA, that would likely be another “politically fragile process where you have to get an exemption,” said Larkin. “I think [Ottawa] will bring into force that one subsection of the [FDA] and say ‘good enough’ and the [rest] will be a fight for another day.”

The Crown now has 30 days from the decision to file a notice of appeal. In that appeal, there are three possibilities, Larkin explained. First, they could appeal the finding that the legislation is unconstitutional. Second, they could appeal the stay on convictions against Nyx and Kalicum; third, they could appeal both.

If the Crown appeals any part of the decision, the case would eventually move to the Supreme Court of Canada, which would likely begin proceedings just over a year from now, said Larkin.

“To be perfectly frank, I hope that if they appeal at all, they only appeal the findings about the legislation,” they added. “It would be inhumane to drag these two folks through more levels of court; they need to be able to move on with their lives.”

How did we get here?

DULF was founded by Nyx and Kalicum in 2020 with the intention of saving the lives of members of their community who were dying at unprecedented rates from the toxic street drug supply.

More than 18,000 people have now died from drug poisoning across the province since 2015, and despite a slight decrease in drug deaths per day over the last two years, drug poisoning is still the leading cause of death for British Columbians aged 10 to 59.

DULF began raising attention to the issue through a series of protest drug giveaways to known drug users in the Downtown Eastside to demonstrate a simple principle: When people know what they are taking, they do not die of drug overdose.

While the project was not without controversy, DULF’s compassion club model received endorsements from Vancouver Coastal Health, UBC Department of Medicine, the B.C. Centre on Substance Use, and the City of Vancouver in 2021.

DULF was open with police and government officials about their operations and were actively pursuing legal avenues to procure a safe drug supply for their members, namely by applying for a section 56 exemption to the CDSA. DULF is still waiting on a judicial review of Health Canada’s decision to deny the group the exemption request.

However, in 2023 political tides began to turn as, according to Justice Murray, a “maelstrom” of Conservative political backlash was triggered following the publication of a September 2023 article in the Economist.

DULF’s headquarters were raided, along with Nyx and Kalicum’s homes, and the pair were arrested by police in October 2023.

Since then, DULF has spent the better part of the last two years in court, first for their criminal trial, and then for their constitutional challenge.

In November 2025, Justice Murray found that Nyx and Kalicum were each guilty of all three counts of possession for the purpose of trafficking.

Though the judge seemed quite sympathetic towards DULF and the goals of their compassion club, Larkin previously told Vancity Lookout that the question the judge was expected to answer at that time was whether the pair were guilty of those specific charges.

“Regardless of whether what they did actually improved public health and safety, that's not a legal basis on which a judge can say you're not guilty of the offence,” they said.

At that time, Justice Murray did not proceed with sentencing, pending the constitutional challenge. Now that the constitutional challenge has been completed, those charges have been thrown out.

“It’s tragic that the government's response was to enforce against [Nyx and Kalicum], but at least it afforded us the opportunity to have a real debate on the evidence about whether or not a safer supply is needed and effective,” one of DULF’s lawyers, Tim Dickson, told Vancity Lookout. “We had that [debate], and the judge has made [that answer] clear in her decision.”

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Maddi Dellplain, Local Journalism Initiative Reporter, Vancity Lookout.