The BC Supreme Court has ruled that people with serious drug addictions are protected by the equality guarantee in s 15 of the Charter, and that the law criminalizing possession for the purpose of trafficking discriminates against them. The decision in R v Kalicum, 2026 BCSC 1855, was released on September 29, 2026.
The case involved the founders of the Drug User Liberation Front. They ran a compassion club in the Downtown Eastside that bought heroin, cocaine and methamphetamine, had the drugs tested at UBC and UVic, and sold them at cost to members. The police knew about it and the Front was open about what they were doing and the reasons for it. Vancouver Coastal Health actually funded part of it. The province designated the site an overdose prevention site. After The Economist published a story about the club, some politicians complained, the funding was pulled and the police raided the site.
The founders were charged with possession for the purposes of trafficking. They made it clear from the start that they intended to challenge the law, claiming in this circumstance it violated the Charter of Rights. They were convicted of possession for the purpose of trafficking, at which point their Charter challenge was considered. The Court agreed with the argument of the defendants and stayed the prosecution. There are important implications of this decision.
A particular concern for us is the application of the equality provisions of the Charter of Rights and Freedoms. Substance use disorder is a recognized diagnosis in the DSM-5. The Crown agreed that it is a disability for Charter purposes. The court found that the law denies people with that disability access to drugs of known content and strength, and forces them onto a street supply contaminated with fentanyl. People without the disability do not face that risk. The court found that the law reinforces and worsens the disadvantage that people with addictions already live with, including poverty, homelessness, stigma and a medical system that has not treated them well.
The Crown argued that people with addictions could get prescribed alternatives or opioid agonist treatment. The court accepted evidence that prescribed safer supply has reached only two to four percent of the at-risk population. Many drug users will not go to a doctor, and the province now requires every dose to be witnessed by a pharmacist. A program that most of the affected people cannot or will not use does not answer a discrimination claim.
Interestingly, the Crown called no evidence to contradict the experts. Even more interestingly, it did not plead justification under s 1 and devoted only a single paragraph of argument to it.
The court declared s 5(2) of the Controlled Drugs and Substances Act of no force or effect, but suspended that declaration for six months and stayed the founders’ convictions. Parliament now has six months to create a lawful pathway for a non-medicalized safer supply program.
The Crown will almost certainly appeal. We can see potential lines of argument to appeal. The reasoning with respect to the equality provisions is fundamentally sound and we expect that to withstand any appeal.
The reasoning reaches beyond illicit drugs. Alcohol use disorder is also a substance use disorder under the DSM-5. Courts and governments have been slow to treat addiction as a medical condition when they write and enforce criminal laws. This decision tells them that the Charter requires it.
In our view this decision reinforces that the government has not taken the steps that are necessary to protect the vulnerable people who face substance addiction.