Jamie Sarkonak: Judge who praised B.C. drug dealers in court cannot be trusted on the bench - National Post

Handing out free drugs inside Vancouver Area Network of Drug Users office in Vancouver, BC, February 9, 2022. Photo by Arlen Redekop / PNG staff photoArticle contentB.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. It’s a hard list to top, but on Tuesday, Justice Catherine Murray managed it by inventing a Charter right to deal 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). 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. All of this was illegal.

The world’s media noticed — and then so did police, who busted the operation. Kalicum and Nyx were charged for violating the Controlled Drugs and Substances Act, and Murray convicted them last year.

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But Kalicum and Nyx still had a constitutional challenge up their 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. In Murray’s view, the prohibition on drug trafficking imposed discriminatory hardship upon drug addicts, whose addiction she considered a disability. Which, if you think about it, might as well strike out the entire Criminal Code. What rules don’t disproportionately affect drug users?

While the arguments of Kalicum and Nyx were far-fetched, Murray bought them wholeheartedly.

The challengers’ case was premised on the idea that addicts need access to “non-medicalized safer supply” as a matter of personal 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. 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.

“The reality is that many PWUD (people who use drugs) do not feel comfortable accessing the medical system,” she wrote. “That is in large part due to social and structural stigma that keeps people silent about their drug use. That includes a stigma about accessing health 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. If you can Charter your way into drug dealing, you can Charter your way into unlicenced engineering, lawyering, trucking, embalming and so much more.

Murray further accepted the evidence of the parade of activist-academics marched in by Kalicum and Nyx, feeble as it was. 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. It was scientifically flawed, but Murray accepted it on the grounds of “common sense.”

“That DULF reduced the risk of harm caused by the toxic drug crisis accords with common sense,” she wrote. “The premise for safer supply programs is undisputed. The toxic drug crisis is caused by the unpredictability of the street supply which puts PWUD at risk of overdose every time they use. 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.”