Contributed by Hilary Ball
In summer 2020, almost 15,000 Canadians signed an online petition calling for the decriminalization of plants and fungi with psychoactive properties. Backed by Decriminalize Nature Canada, an initiative of the Canadian Psychedelic Association, Petition e-2534 was presented to the House of Commons by Green Party Member of Parliament Paul Manly on September 30, 2020. On their website, Decriminalize Nature emphasizes that the goal of the petition is not legalization—they do not seek to permit recreational use of these organisms or to authorize retail marketing. Instead, by advocating for decriminalization, they aim to reduce the risk of criminal sanction for sick people seeking natural remedies for a range of mental health conditions, and for healthy people seeking “greater wholeness, purpose and connection.” The Canadian government posted its official response to the petition in November 2020. Pointing to existing legal mechanisms that allow access to controlled substances through exemptions, the government ultimately concluded that “no amendments to the current legislation or regulations are required.”
The petition appeared in the context of what has become known as the “psychedelic renaissance”: a recent upsurge of scientific and cultural interest in the therapeutic and spiritual benefits of psychedelics. Following decades of suppression and prohibition, clinical research out of institutions such as John Hopkins University, New York University, the University of California Los Angeles, the University of British Columbia, and the University of Toronto Mississauga has begun to suggest that psychedelics may have a positive impact a variety of treatment-resistant mental health conditions; psilocybin and MDMA, in particular, have shown remarkable promise in treating addiction, depression, and post-traumatic stress disorder. Since 2020, dozens of psychedelics biotechnology companies have emerged in Canada, generating optimism among investors about what could be the next cannabis industry. Across the border, moreover, these drugs seem to be shedding some political stigma: both Oregon and D.C. decriminalized psilocybin in 2020, and California may be next to do so. Despite the momentum building around these substances, however, it remains unclear what the future of the psychedelic renaissance will look like in Canada. Is legislative and regulatory reform on the horizon, and, if so, what will it look like? Alternatively, should the government’s response to Petition e-2534 be interpreted as a sign that change will occur slowly or not at all?
Background on psychedelics
The word “psychedelic,” which means “mind manifesting,” was coined in 1957 by psychiatric researcher Humphrey Osmond.Hoping to replace the negative and limiting connotations of the previously accepted term “psychotomimetic” (“psychosis mimicking”), Osmond emphasized these substances’ beneficial properties—namely, their ability to provoke “changes in thought, perception, mood, and sometimes posture.” Today, the so-called classic psychedelics are understood to include LSD, mescaline, psilocybin, and DMT. In addition, MDMA and ketamine are often referred to as psychedelics and can produce similar mental states, despite operating differently in the brain. Psychedelic plants have a rich history of use in religious rituals and healing practices, and cultures across the world have long sought out “nonordinary states of consciousness” to connect with the divine and the mystical. A mystical experience, moreover, is also characteristic of therapeutic use of these drugs, and American science journalist Michael Pollan has described modern psychedelics research as a meeting point between science and spirituality.
Yet widespread recognition of these drugs as spiritually or psychologically beneficial has by no means been consistent over the last 80 years. Initially, the discovery of LSD in 1938 gave rise to optimism and enthusiasm about psychedelics among researchers like Osmond, whose early studies of LSD as a treatment for alcoholism showed promising results. By the mid-1960s, however, this new drug had escaped the laboratory and found its way into the hands of young people, where it became associated with hippie counterculture, the Summer of Love, and the antiwar movement. An era of “War on Drugs” prohibitionist policies ensued, viewed by many as a politically motivated response to the perceived threat psychedelics posed to social order. In the words of Roland Griffiths, now one of the psychedelic renaissance’s leading researchers, “there is so much authority that comes out of the primary mystical experience that it can be threatening to existing hierarchical structures” (quoted in Pollan).
The word “psychedelic,” which means “mind manifesting,” was coined in 1957 by psychiatric researcher Humphrey Osmond. || (Source: pixabay // Gerd Altmann)
Current regulatory landscape
In Canada, psychedelics are controlled substances under the Controlled Drugs and Substances Act (CDSA), in compliance with three United Nations drug conventions. All controlled substances are deemed to have “higher-than-average potential for abuse and addiction” and, as such, their possession, sale, import, export, and production are prohibited. Specific substances are listed in four “schedules” in ascending order of perceived dangerousness. As Schedule I drugs, MDMA and ketamine are associated with the most severe level of penalties and, as Schedule III drugs, the classic psychedelics are subject to the third most severe level. However, prohibition under the CDSA is not absolute, and s. 56 allows the Minister of Health a broad discretionary power to grant exemptions for scientific purposes, or if otherwise in the public interest.
Notably, the number of s. 56 exemptions granted for psychedelics has dramatically increased in recent years. In June 2017, for instance, the Santo Daime Church in Montreal received permission under the public interest criteria to legally import and serve ayahuasca, a plant-based tea containing DMT, as part of their ceremonies. Following this victory, several other ayahuasca churches have also acquired s. 56 exemptions from Health Canada. In August 2020, moreover four Canadians with terminal cancer were granted exemptions to access palliative psilocybin therapy with the help of the non-profit organization TheraPsil, and dozens more have since followed in their footsteps. In December 2020, TheraPsil announced that 17 healthcare workers had also been approved to use psilocybin as part of their professional training, a number that has subsequently increased.
In August 2020, four Canadians with terminal cancer were granted exceptions to access palliative psilocybin therapy with the help of the non-profit organization TheraPsil.|| (Source: pixabay // Michael M)
Does s.56 provide sufficient access?
Despite these successes, exemptions are granted on a case-by-case basis, and many new applicants’ requests have remained in limbo. In light of the increasing unmet demand for exemptions, TheraPsil has drafted a proposed framework for legalizing medical psilocybin based on Canada’s 2016 regulations for medical cannabis, which it submitted to Health Canada in August 2021. Whereas decriminalization simply removes criminal penalties for possession, medical legalization would create a regulatory regime so that individuals could legally obtain prescribed medical psilocybin from licensed dealers. Meanwhile, a Health Canada proposal to allow access to restricted drugs through the Special Access Program (SAP) could provide an alternative avenue for patients desperate to get their hands on psychedelics. Through amendments to the Food and Drug Regulations and the Narcotic Control Regulations, the SAP proposal would allow health practitioners to request access to restricted drugs for patients with serious conditions in the absence of other appropriate treatments.
The question of access could be crucial should the CDSA’s prohibition on psilocybin or other psychedelics invoke a Charter challenge. In 2000, for instance, the Ontario Court of Appeal in R v Parker held that the CDSA violated the epileptic defendant’s s. 7 Charter rights to liberty and security of person, as s. 56 did not provide sufficient legal access to medical marijuana. Conversely, in 2011, the Supreme Court in Canada (AG) v PHS Community Services Society found that the CDSA did not violate the s. 7 rights of the patients of a safe injection site, and favoured the combination of a prohibition alongside a power to grant exemptions. It remains to be seen whether the limited access to psychedelics provided by s. 56 sufficiently protects the s. 7 rights of those who wish to acquire it. Should exemptions continue to stall, however, TheraPsil has made clear that a lawsuit could be imminent.
Conclusion: Prospects for legal recreational use
Although research suggests that psychedelics are usually neither addictive nor physiologically dangerous, the psychological experience induced by a large dose is not without risk. Thus, even some proponents of legalization are trepidatious about releasing these drugs from the protective rituals of the religious or therapeutic context. In fact, psychedelic advocates from across the spectrum of scientific and spiritual approaches have recommended establishing clear ethical guidelines, professional training standards, and credentialing systems as these drugs enter the mainstream. Some lawyers, moreover, have even speculated that the regulatory regime for driving might be a more appropriate model for psychedelics than existing regulations for drugs like cannabis and alcohol. Under such a scheme, individuals could be licensed to consume and purchase these drugs only after successfully completing a course and examination.
Regardless, legal experts generally agree that the Canadian government is likely to approach reforms with caution, and that recreational legalization therefore remains a distant prospect. The Summer of Love has not, perhaps, been erased from the political imagination— it was, after all, rampant recreational use of psychedelics in the 1960s that precipitated the crackdown, the effects of which are still felt today.
Hilary Ball is a Junior Online Editor with the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, she completed a master’s degree in English literature at the University of British Columbia.