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

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. It’s a hard list to top, but on Tuesday, Justice Catherine Murray managed it by inventing a Charter right to deal drugs.

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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.”

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. Without much more thought, she concluded that DULF “did not negatively impact the community or public safety.”

And so, Murray considered the 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. 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.”

Then, Murray applied the law of equal 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. 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. Murray found this easily applied to DULF by counting drug addiction and the pain of withdrawal as a 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).”

There appear to be three obvious ways for the government to comply. 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. 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. Worse, in the actual hearing, she stated her approval for “benevolent” drug trafficking on the court record.

“You successfully put yourself aside for this cause and it’s something most people wouldn’t do — and for that, I applaud you. You should be very proud of yourself,” she said, per the Western Standard’s Alex Zoltan, who attended court remotely.

It wasn’t enough for Murray to throw a grenade under the criminal laws that barely limit the bad behaviour on B.C.’s streets to begin with. She had to offer a final insult to the community by praising drug dealers in her court. She convinced herself that there was a meaningful distinction between “benevolent” drug brokers and the rest of them, and wrote any gaps in the evidence off with “common sense.” The better use of common sense would have been to call the whole thing off and assert that there is no Charter right to deal drugs.

Murray perhaps envisions a future where drug dealing across B.C. — because her ruling applies far beyond Vancouver — is above board, with “benevolent” actors saving the street people one dose at a time. It’s a ridiculous fantasy. Anyone with actual common sense can see right away that such a scheme would rapidly be abused. If the courts consider “benevolent” drug dealing of untainted supply to be a public service on par with medical harm reduction, expect a lot more open drug dealing.

It’s cliché to demand judges be removed from the bench over a single bad decision, just as it’s cliché to call for politicians to step down at every gaffe. But in this case, there is no other proper response. Murray’s decision must be appealed, and if that fails, the notwithstanding clause must be used to neutralize it.

But that does not go far enough. Murray demonstrated complete contempt for law and order by actually congratulating people for trafficking drugs as activism. This wasn’t a case of a strict judge regretfully applying the precedents handed down to her from above; this was judicial activism. She simply cannot be trusted to deal justice to her community. And to allow such a person to continue in her role, without being made an example, tells the bench that it’s perfectly acceptable to force massive policy changes on major social ills — even the decriminalization of drug dealing, for heaven’s sake.

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