The Decriminalization of Psychedelics in Canada

Understanding the decriminalization of psychedelics in Canada is a complex and evolving subject that involves the interaction of a number of Canadian laws and various levels of government. While we at Frshminds do not hold ourselves out as lawyers, our goal with this article is to give you some understanding of the legal landscape and the ability to ask legal professional the right questions regarding psilocybin and other psychedelics.  While in the past, we have written about psilocybin’s path to legalization in canada and given readers an overview of where are psychedelics decriminalized, we think it is important to dive deeper into the subject.

What Are Psychedelics?

First things first.
Before we dive into understanding the decriminalization of psychedelics in Canada, let’s try to come to an understand of what it is that we define as psychedelics.
Psychedelics, also referred to as hallucinogens, are a class of psychoactive substances that produce changes in perception, mood, and cognitive processes; these include ayahuasca, psilocybin (magic mushrooms), LSD, and MDMA, which can either be produced naturally or manufactured in laboratories. Canada outlawed psilocybin in 1974, a full six years after the U.S

How are Psychedelics Regulated in Canada?

Under the Controlled Drug and Substance Act (CDSA), psychedelic drugs are considered “controlled substances” that are categorized into schedules meant to align to the relative danger posed by the drugs they include:

• Schedule 1 substances: these substances come with the highest potential for abuse and feature the most severe penalites. Schedule 1 includes both MDMA and ketamine.
• Schedule 2 substances: this grouping is reserved entirely for cannabis and its deratives.
• Schedule 3 substances: these substances are considered to be the least susceptible to abuse. Most psychedelics are found here, including LSD, DMT and psilocybin.

Regardless of the schedule, the CDSA generally prohibits the use of any substance on any schedule. Generally speaking, this can only be ignored if an exemption to the CDSA is granted. These exemptions will be the basis for future expansions to the roster of decriminalized substances.

Understanding Drug Possession in Canada

Drug possession offences are subject to the Controlled Drugs and Substances Act (CDSA) and are prosecuted at the federal level as opposed to the provincial level, which is the case with most criminal offence prosecutions in Canada.  In terms of the actual legal minutiae, possession is defined within the meaning in section 4(3) of the Criminal Code of Canada  and contains three different types of possession: personal possession, constructive possession, and joint possession.:

(3) For the purposes of this Act,

• a person has anything in possession when he has it in his personal possession or knowingly
  • has it in the actually possession or custody of another person
  • has it in any place whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
• where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Constructive possession: To be found guilty of constructive possession, the Crown must prove that the accused knew the character of the object, knowingly put or kept the object in a place, and intends to have the object for his or her use or benefit, or benefit to some other person.

Joint possession: Means that you can be in possession of drugs even if it is, for example, in someone else’s pocket or residence, if they are possessing it with your knowledge and consent.

There are two key elements to possession that must be demonstrating when establishing possession:

• Knowledge: the accused was aware of the object being in possession.
• Control: the accused must have had some measure of control of the object possessed.
  These two elements are not confined to drugs alone, but are essential to possession in general. They are required for possession of firearms, stolen goods, etcetera.

Controlled Substances Exemptions

Canadian law prohibits all uses of controlled substances unless: an exemption is granted under section 56 of the CDSA or the regulations allow otherwise.

Section 56 Exemption

The Minister of Health can grant exemptions under section 56 of the CDSA to use controlled substances if it is deemed to be necessary for a medical or scientific purpose or is otherwise in the public interest.

Section 56.1 states that the Minister may grant an exemption if it’s believed to be necessary for medical or scientific purposes, or in public interest.

Subsections dictate the Minister’s authority in approving exemptions for controlled substances and the activities involved, in terms of how a controlled substance is obtained and where it’s provided (a supervised consumption site). It’s stated that the Minister’s decision is made public, and that a reason must be provided for a refusal.

Section 56.2 states that the supervisor at a supervised consumption site may offer alternative pharmaceutical therapy before administering a substance that is obtained in a manner not authorized under the CDSA.

This first time section 56 exemptions for psilocybin was approved for patients since psilocybin was made a controlled substance in Canada was in August 2020 when TheraPsil helped 4 Canadians suffering from end-of-life distress, due to a terminal illness, access approved ‘section 56 exemptions’ from the Minister of Health. Additionally, 19 healthcare professionals associated with TheraPsil have been approved by the Federal Health Minister, Patty Hajdu, to possess and use psilocybin for professional training in psilocybin therapy.

Since then, approximately 30 exemptions have been granted by Health Canada to patients across the country. Health Canada also recently completed a public consultation period regarding the Special Access Program (“SAP”) with a view to reversing certain regulatory changes made in 2013 that prohibited access to restricted drugs (such as psychedelics) through the SAP.

As of July 2021, the 64 exemptions granted to date were issued last year and went to 45 patients and 19 health professionals. Additionally some companies, like Numinus, have received section 56 exceptions.

Regulation Exemptions

Despite the general prohibition on controlled substances, there are regulations that can allow authorized persons to possess, produce, sell, import/export, and transport controlled substances. The Food and Drug Regulations gives authorization to persons (including licensed dealers and those exempted under section 56 of the CDSA) to have access to psychedelic.  Ketamine is regulated as a “narcotic” under the Narcotic Control Regulations and is the only psychedelic governed by this regulation.

Understanding The Decriminalization of Psychedelics in Canada

In 2019, a Canadian lawmaker, Liberal MP Nathaniel Erskine-Smith, introduced a bill(Bill C-460) to decriminalize the possession of all illicit drugs. This bill would repeal a section of Canada’s federal drug laws that concerns possession of controlled substances. While the bill expired ahead of the election, it set the wheels of decriminalization in motion.

Around this same, decriminalization got support from a Canadian House of Common’s Committee, the Standing Committee on Health, to decriminalize simple possession of all drugs as part of the effort to address addiction issues.

In August of 2020, a petition addressing the different uses of entheogen plants and fungi as well as the substances’ therapeutic potential was sponsored by MP Paul Manly of the Green Party. The petition that called for the decriminalization of psychedelics garnered 14,910 signatures which was among the highest number an official government petition has collected in Parliament, was read formally in the House of Commons. The response to the petition was tabled November 16 2020.

The official response from the Government of Canada highlighted that there were various ways for some individuals to obtain exemptions to consume the substances legally, despite the drugs being illegal for the Canadian majority. These highlights included:

• Government ministers stated that the psychedelic substances had to be studied more before any reforms were made.
• Ministers of Public Safety and Emergency Preparedness, Health and Justice all issued statements.
• While two of the statements acknowledge there are opportunities for solitary exemptions under the CDSA for specific types of drug use, all statements re-emphasize that the trafficking and possession as well as the manufacture of psychedelic substances, are still illegal acts.
• Psychedelic substances are required to be approved by Canada’s drug review process and be authorized by Health Canada before they can be used as a mainstream therapeutic.
• David Lametti, the attorney general, stated that the law provided the Minister of Health with the power to grant exemptions from the Controlled Drugs and Substances Act for scientific, medical and other public interest purposes.
  • The latter included the protection of fundamental freedoms, such as the freedom of peaceful assembly, expression and religion.
  • Extensive decriminalization petition wouldn’t comply with Canada’s agreement with international drug conventions, which include the Psychotropic Substances UN Convention 1971.

The Role of Law Enforcement In The Decriminalization of Psychedelics in Canada

High-level Canadian law enforcement officials are also pushing for the decriminalization of drugs.
In July 2020, the Canadian Association of Chiefs of Police (CACP) recommended decriminalizing low-level possession and treating substance misuse as a public health matter. The organization said that its recommendation is motivated by an interest in reducing overdose deaths and promoting treatment and comes two years after the organization started studying decriminalization.

Some evidence has shown that [decriminalization], coupled with other interventions (e.g. harm reduction, prevention, enforcement, and treatment strategies) has led to an increase in treatment uptake, a reduction in drug-related deaths, and importantly, no increase in drug use rates.

Around the same time as this, the Public Prosecution Service of Canada’s (PPSC) changed their approach to simple possession offences under the Controlled Drugs and Substances Act with the Director of Public Prosecutions Kathleen Roussel asking her team of lawyers to focus on seeking charges only in “the most serious cases” and to otherwise ask for alternative measures, such as restorative justice and Indigenous approaches to divert simple possession cases away from the criminal justice system.

We’ve revised our approach to simple possession offences under the Controlled Drugs and Substances Act (CDSA). You can read the new policy in Part 5.13 of the PPSC Deskbook: https://t.co/MnyYBQ1KZL 1/4

— Public Prosecution Service of Canada (@PPSC_SPPC) August 18, 2020

Next Steps in Decriminalization

Ultimately, decriminalization is seen as a stepping stone to legalization. In August 2020, TheraPsil, a psilocybin advocacy group, drafted proposed regulations for its use based on the same ones the federal government created 20 years ago for medicinal cannabis.  This 165-page proposal was presented to Jennifer Saxe, Health Canada’s director general.

The Multidisciplinary Association of Psychedelic Studies and the Canadian Psychedelic Association (CPA) are also drafting their own regulatory blueprints for Health Canada to consider.

In terms of the legalization of psychedelics, it will probably arise from one of the following avenues:

(i) successful court challenge under Section 7 of the Charter of Rights and Freedoms;
(ii) an exemption under Section 56 of the Controlled Drugs and Substances Act (Canada) (the CDSA) (as defined below) for medical or scientific purposes;
(iii) an exemption otherwise being in the public interest or on human rights grounds;
(iv) through approvals granted by Health Canada under existing regulatory processes; or,
(v) enactment.

To understand the growing movement towards the decriminalization of psychedelics and their significance in mental health, check out our Ultimate Psychedelics and Mental Wellness Guide.

References

Government of Canada, “Controlled Substances and Precursor Chemicals” (27 April 2020).

B.C. non-profit challenges Health Canada to end 50-year prohibition on magic mushrooms

Controlled Drug and Substance Act, SC 1996, c 19, s 4-7.

17 Canadian Healthcare Professionals Approved to Use Psilocybin for Professional Training

Patient hopes Canada will introduce regulations for psychotherapy with ‘magic mushrooms

Psychedelics Decriminalization Petition Awaits Response from the Canadian Government

e-2534 (Justice)

Canadian Government Gives Formal Response to Petition to Decriminalize Psychedelics

Top Canadian Police Association Says It’s Time To Decriminalize All Drugs

Federal prosecutors told to avoid drug possession charges when possible in new directive

Canada’s Psychedelic Future: a guide to the evolving legal and regulatory landscape and what’s next

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