A B.C. judge struck down part of Canada’s drug trafficking law. What it means in Ontario.

On September 29, 2026, a B.C. Supreme Court judge ruled that the federal offence of possession for the purpose of trafficking breaks the Charter. The ruling turns on one thing: there is no legal way to run a safer-supply club that tests drugs and sells them at cost. It is one B.C. court, so it does not bind Ontario. And the law stays in force for six months.

The case

The case is R v Kalicum, 2026 BCSC 1855, decided by Justice Catherine Murray. Jeremy Kalicum and Eris Nyx co-founded the Drug User Liberation Front (DULF). From August 2022 to October 2023, its compassion club in Vancouver’s Downtown Eastside bought heroin, cocaine and methamphetamine on the dark web. It had the drugs tested at the University of British Columbia and the University of Victoria, labelled them, and sold them at cost to screened adult members who were already using illicit drugs. No prescription was needed.

DULF asked Health Canada for an exemption under s. 56 of the Controlled Drugs and Substances Act (CDSA) in August 2021. It was refused in July 2022. Police executed a search warrant on October 25, 2023, and seized 192 grams of cocaine, 237 grams of heroin and 364 grams of methamphetamine from two safes. The drugs were what the labels said, with no fentanyl. On November 7, 2025, both founders were found guilty of possession for the purpose of trafficking under CDSA s. 5(2). The convictions were held in abeyance while they challenged the law.

What the judge found

The key finding: there is no workable safety valve. A s. 56 CDSA exemption cannot exempt anyone from the Food and Drugs Act, and there is no legal source of drugs for a program that runs outside the medical system. So the exemption route is, in the judge’s word, “illusory.”

From there, the judge held that s. 5(2) violates s. 7 of the Charter (life, liberty and security of the person) because it is overbroad and grossly disproportionate in this context. It also violates the equality rights of DULF members under s. 15(1). The Crown called no evidence on justification, and the law failed the minimal-impairment test under s. 1.

The ruling’s logic is narrow. The judge noted that the two founders “did not possess the drugs to sell for profit.” She also distinguished an Ontario case, R v Lalancette, 2022 ONSC 5785, where the Ontario Superior Court rejected a similar s. 7 challenge to s. 5(2). In Lalancette, she noted, the accused had delivered five kilograms of street heroin to a drug trafficker.

The remedy: a suspended declaration

Under s. 52 of the Constitution Act, 1982, the judge declared s. 5(2) of no force or effect. She suspended that declaration for six months to give Parliament time to respond. The Crown asked for 12 months. The judge refused, citing the scale of the toxic-drug crisis, but said the Crown can apply for more time. She also refused the Crown’s request to limit the declaration to heroin, cocaine and methamphetamine.

A suspended declaration means the law stays in force, and can still be enforced, until the suspension ends. Separately, the judge stayed the two founders’ convictions under s. 24(1) of the Charter. Trafficking itself, under s. 5(1), was not struck down. The Crown has 30 days to appeal.

What it means in Ontario

A B.C. Supreme Court ruling does not bind courts in Ontario. An Ontario judge can find it persuasive but does not have to follow it. And Ontario already has a Superior Court decision, Lalancette, rejecting a s. 7 challenge to the same section. If you are charged with possession for the purpose of trafficking in Ontario today, s. 5(2) applies to you.

Bottom line

• A B.C. judge declared CDSA s. 5(2), possession for the purpose of trafficking, unconstitutional because there is no legal way to run a non-medical safer-supply program.

• The declaration is suspended for six months. Until then the law stays in force, and the Crown can appeal or ask for more time.

• The ruling does not bind Ontario courts, and its reasoning does not cover selling drugs for profit.

If you are charged with a drug offence in Ontario, call 416-684-4322 to speak with Stephanie Heyens.