e-2534 (Justice)

The Royal Canadian Mounted Police (RCMP) is responsible for preventing crimes, investigating crimes, enforcing federal, provincial/territorial and municipal law, and keeping Canadians safe. They will continue to enforce existing statutes, including those that prohibit or impose restrictions on the manufacture, possession, and/or trafficking of controlled drugs and substances.

The Controlled Drugs and Substances Act (CDSA) is one of the ways in which Canada fulfills its obligations under the following International Conventions: The UN Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol, and the UN Convention on Psychotropic Substances, 1971. Depending on where a substance is scheduled under the CDSA, it is subject to certain prohibitions such as the prohibition on possession, trafficking, importation, exportation and production. Any plant or fungi that contains a substance listed in Schedules I, II, III, IV, or V of the CDSA is regulated as a controlled substance in Canada.

Section 56 of the CDSA empowers the Minister of Health to grant exemptions from the provisions of the Act or the regulations for medical, scientific, or other public interest purposes. Section 56 provides the Minister with very broad discretion in deciding whether or not to grant an exemption. The Minister’s discretion must be exercised “in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter[Baker v. Canada, [1999] 2 S.C.R. 817 at 853-855]. This requires consideration of an applicant’s Charter rights, including fundamental freedoms guaranteed under s. 2 (freedom of religion, belief and expression, and peaceful assembly) and the right under s. 7 not to be deprived of liberty except in accordance with the principles of fundamental justice.

The freedom of religion under s. 2(a) will be engaged in circumstances where a person sincerely believes in a practice or belief that has a nexus with religion and the state interferes, in a manner that is not trivial or insubstantial, with the person’s ability to act in accordance with that practice or belief.

The freedom of expression under s. 2(b) has been broadly interpreted as encompassing any activity or communication, aside from violence or threats of violence, which conveys or attempts to convey meaning.

The freedom of peaceful assembly under s. 2(c) of the Charter is geared towards protecting the physical gathering together of people but does not encompass protection for the purpose of the gathering.

The right to liberty under s. 7 of the Charter protects a sphere of personal autonomy involving inherently private choices that go to the core of what it means to enjoy individual dignity and independence and includes the right to make “reasonable medical choices” without threat of criminal prosecution.

In circumstances where a person’s traditional use of plants and fungi containing a controlled substance would engage these protections, the Minister would be obligated to consider, and to proportionately balance, the relevant Charter protections with the public health and safety objectives of the CDSA. A proportionate balancing is one that gives effect, as fully as possible, to the Charter protections at stake given the particular statutory mandate. 

The Convention on Psychotropic Substances, 1971 allows a state to enter reservations. Generally, reservations must be circumscribed rather than broad and open-ended, such as those proposed in this petition. The Convention itself only allows for reservations to be entered: 1) when states become a party to the Convention (at the time of signature, ratification, or accession); 2) for certain small and clearly determined identifiable groups; and 3) for certain substances (traditionally those used in “magic or religious rites”). Given the specific requirements of the Convention, the actions proposed in this petition would not be consistent with the Convention. That said, Canada is committed to the ongoing development of the scientific evidence base in relation to controlled substances and will continue to work within international forums to raise awareness of the impacts of drug scheduling on particular communities and traditional practices. 

In Canada, any plants or fungi that are or contain any substance listed in Schedules I, II, III, IV, or V of the Controlled Drugs and Substances Act (CDSA) are regulated as “controlled substances”. The CDSA prohibits any person from conducting activities with controlled substances unless authorized by regulation or through an exemption granted under section 56 of the Act. Regulations under the CDSA allow for the legitimate use of controlled substances, such as their use in approved prescription drugs, while minimizing the risk of their diversion to illegal markets or uses. In addition, section 56 of the CDSA gives the Minister of Health a broad exemption power. An exemption under section 56 of the CDSA can permit a person to conduct activities that would be otherwise prohibited under the CDSA and its regulations (e.g. possession), and can be granted for medical or scientific purposes, or if the exemption is otherwise in the public interest (such as religious uses).

Because of their biological effects, controlled substances also meet the definition of “drug” under the Food and Drugs Act (FDA). As such, any therapeutic use of a controlled substance is therefore also subject to the FDA and its regulations. When a sponsor decides that it would like to market a drug in Canada, it files a "New Drug Submission" with Health Canada. Drugs are authorized for sale in Canada once they have successfully gone through the drug review process, which includes a science-based assessment of the drug’s safety, efficacy and quality. This assessment is informed by evidence from clinical trials.

Another potential option to access products that have not yet been licensed for sale in Canada, and may still be under investigation, is through a clinical trial. Most clinical trials require an authorization from Health Canada to ensure that the best interests of patients is protected and that a product is administered in accordance with national and international ethical, medical, and scientific standards. Clinical trials can be conducted for as few as a single patient or for a larger group. The decision to pursue clinical trials is at the discretion of sponsors (e.g., a manufacturer, a research centre, or a physician).

Given that the CDSA, FDA, and their respective regulations already provide a mechanism to access such organisms for medical or scientific purposes, or for reasons that are otherwise in the public interest (such as religious uses), no amendments to the current legislation or regulations are required.