B.C.’s courts have brought us the Charter right to smoke drugs near playgrounds, the Charter right to erect a homeless encampment, and the Aboriginal right to claim title to someone else’s land.
uncertain
courts → bring → land
It’s a hard list to top, but on Tuesday, Justice Catherine Murray managed it by inventing a Charter right to deal drugs.
asserted
Murray → ’ → drugs
Murray had been responsible for judging the case of vigilante dealers Jeremy Kalicum and Eris Nyx, who created an addicts’ rights group called the “Drug Users Liberation Front” (DULF).
asserted
who → judge → group
Among the group’s ventures was a cross between drug brokerage and charity shop: it bought supposedly pure quantities of heroin, cocaine and more, and sold them at a low price to people on the street.
asserted
it → buy → street
The world’s media noticed — and then so did police, who busted the operation.
asserted
who → notice → operation
Kalicum and Nyx were charged for violating the Controlled Drugs and Substances Act, and Murray convicted them last year.
asserted
Murray → charge → them
But Kalicum and Nyx still had a constitutional challenge up their sleeves.
asserted
Kalicum → have → sleeves
It was underway at the time of their conviction, and Murray finally arrived at her answer this week: the Canadian ban on trafficking drugs violates the Charter right to life, liberty and security, as well as the right to equality under the law.
asserted
ban → arrive → law
In Murray’s view, the prohibition on drug trafficking imposed discriminatory hardship upon drug addicts, whose addiction she considered a disability.
asserted
she → impose → addiction
Which, if you think about it, might as well strike out the entire Criminal Code.
uncertain
you → think → Code
What rules don’t disproportionately affect drug users?
asserted
rules → affect → users
While the arguments of Kalicum and Nyx were far-fetched, Murray bought them wholeheartedly.
asserted
Murray → buy → them
The challengers’ case was premised on the idea that addicts need access to “non-medicalized safer supply” as a matter of personal security.
asserted
addicts → premise → security
While there existed medical services providing scientifically dubious but at least legal “safer supply” drugs to addicts who wanted them, they required prescriptions and diagnoses, gatekept by medical and pharmacy professionals.
asserted
they → exist → professionals
Murray took issue with this medical monopoly on dispensing “safe supply” — which, I note, is already a flawed system because the legal supply ends up being diverted to the street anyway.
asserted
supply → take → street
“The reality is that many PWUD (people who use drugs) do not feel comfortable accessing the medical system,” she wrote.
asserted
she → use → system
“That is in large part due to social and structural stigma that keeps people silent about their drug use.
asserted
that → keep → use
That includes a stigma about accessing health care.”
asserted
That → include → care
This same logic could be used to undermine any professional licencing system because it unfairly discriminates against populations who don’t trust institutions, which is a problem on its own.
uncertain
which → use → own
If you can Charter your way into drug dealing, you can Charter your way into unlicenced engineering, lawyering, trucking, embalming and so much more.
asserted
you → charter → engineering
Murray further accepted the evidence of the parade of activist-academics marched in by Kalicum and Nyx, feeble as it was.
asserted
it → accept → Kalicum
A major piece was a study on DULF’s ability to save lives, which had a small sample size and a brief control group that was folded into the treatment group, which could have also benefited from DULF’s drug-checking services.
uncertain
which → save → services
It was scientifically flawed, but Murray accepted it on the grounds of “common sense.”
asserted
Murray → flaw → sense
“That DULF reduced the risk of harm caused by the toxic drug crisis accords with common sense,” she wrote.
asserted
she → reduce → sense
The toxic drug crisis is caused by the unpredictability of the street supply which puts PWUD at risk of overdose every time they use.
asserted
they → cause → overdose
It is logical that providing them with drugs of known composition and strength, achieved by testing the drugs beforehand, reduces their exposure to that supply and the dangers associated with it.”
asserted
providing → provide → it
Murray also downplayed that DULF’s own data suggested that over half of its clients reported giving or selling the drugs they purchased from the collective to other people, and the fact that DULF was likely getting its own supply from organized crime.
uncertain
DULF → downplay → crime
Without much more thought, she concluded that DULF “did not negatively impact the community or public safety.”
asserted
DULF → conclude → community
And so, Murray considered the Charter.
asserted
Murray → consider → Charter
One grave injustice, in her eyes, was the fact that DULF’s services to the public depended on purchasing drugs from illegal suppliers, which made them criminals as well.
asserted
them → depend → suppliers
This ran contrary to the Charter because it criminalized “life-saving conduct” and was thus “grossly disproportionate to the goal of protecting public health and maintaining public safety.”
asserted
it → run → safety
Then, Murray applied the law of equal rights.
asserted
Murray → apply → rights
She relied on the Supreme Court of Canada’s latest iteration setting out what constitutes unlawful discrimination under the Charter, Quebec (Attorney General) v. Kanyinda, which gave unvetted asylum claimants in Quebec the right to subsidized daycare.
asserted
which → rely → daycare
That case embraced the philosophy of intersectionality, holding that a rule that could be said to disproportionately disadvantage any segment of people within a “protected group” population runs contrary to the Charter.
uncertain
that → embrace → Charter
Murray found this easily applied to DULF by counting drug addiction and the pain of withdrawal as a disability.
asserted
this → find → disability
Murray ultimately declared the ban on drug trafficking invalid, but suspended her declaration for six months “to give Parliament time to implement a scheme that would allow for a non-medicalized safer supply program to operate without contravening the (legislation).”
asserted
program → declare → legislation
There appear to be three obvious ways for the government to comply.
asserted
government → appear → ?
One, totally decriminalize drug trafficking; two, write an exception into the law that allows “benevolent” dealers to buy from criminal suppliers; and three, allow pharmaceutical suppliers to sell hard drugs to “benevolent” dealers.
Murray isn’t entirely to blame here: the Crown didn’t bring much of a case, and the Supreme Court’s Kanyinda ruling on discrimination guaranteed more Charter overreach.
asserted
ruling → decriminalize → overreach
But she didn’t do herself any favours by demonstrating bias in favour of the drug-decriminalization cause: instead of neutral “drug users” or “drug addicts,” Murray went with the progressive neologism of “PWUD” — people who use drugs, signalling a preference for the activists by using their terms.
asserted
who → do → terms
Worse, in the actual hearing, she stated her approval for “benevolent” drug trafficking on the court record.
asserted
she → state → record
…and 17 more, not listed.
The Aporia
