Magic Moment: An Exemption to the Controlled Drugs and Substances Act Granted

This blog was prepared with the assistance of summer student-at-law Jason J.S. Birring.

On August 4, 2020, it was announced that a legal exemption from the Controlled Drugs and Substances Act (CDSA) was granted to four Canadians with incurable cancer. The exemption is to receive psilocybin therapy to treat their anxiety. Health Minister Patty Hajdu approved the request.

Psilocybin is a naturally occurring psychedelic compound that is found in more than 200 species of mushrooms, colloquially known as “magic mushrooms”. Psilocybin possession, production, or sale has been illegal in Canada since 1974. This is the first legal exemption of psilocybin, as Health Canada’s website states “currently there are no approved therapeutic products containing psilocybin in Canada.”

The successful exemption application was based on compassionate grounds for palliative care under section 56(1) of the CDSA. Generally, the CDSA prohibits all uses of controlled substances unless an exemption is granted under section 56 or the regulations allow otherwise. This section allows the Health Minister to exempt persons or controlled substances, if “the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest” (Health Canada). Among other things, psilocybin is being studied for alleviating end-of-life distress in palliative patients.

TheraPsil, a non-profit coalition that advocates for legal and compassionate access to psilocybin therapy for palliative Canadians, supported the four patients with their applications to seek ministerial approval.

This is not the first time that a section 56 exemption for psilocybin has been requested, in 2017 a group of doctors applied for a section 56 exemption to have access to psilocybin to treat patients experiencing terminal distress. The application was denied in March of 2020 “on the basis that there is insufficient evidence to demonstrate the medical need for psilocybin.” The first legal access to cannabis for medical purposes in Canada was achieved using the same section 56 exemption.

Psilocybin has been found to provide long-term relief for mental health struggles such as anxiety and depression, particularly in those receiving palliative care due to a terminal diagnosis. Roland Griffiths, director of the U.S. Center for Psychedelic and Consciousness at Johns Hopkins University in Baltimore comments that “psilocybin produces conditions under which people report having a sense of increased efficacy, a change of world view, a sense of change of self, and that they’re able to re-engage in the world in very positive ways.”

Mushroom spore kits and are legal and are sold openly in stores and on the internet as the spores and kits themselves are not expressly prohibited by law. The argument for legality of spores is premised on the fact that the spores do not contain a controlled substance – there is no psilocybin in the spores themselves. Psilocybin and psilocin are illegal to possess, obtain or produce without a prescription or license as they are schedule III controlled substances under the CDSA.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.