The legal status of psilocybin mushroom spores in Canada

Psilocybin is a substance found in certain types of mushrooms, known as psilocybin mushrooms or “magic mushrooms.” It is a psychedelic substance with chemical structure similar to that of neurotransmitter serotonin. Psilocybin is a Controlled Drugs and Substances Act [i] (“CDSA”) Schedule III substance and it is also in Schedule J to the Food and Drug Regulations [ii] (“FDR”). It means that there can be severe legal implications to any activities around psilocybin, such as possession, sale, transportation, etc., of that substance.

Despite psilocybin’s complex and extremely regulated legal status, it is one of the oldest known and most used recreational substance in the world. It can be found in nature in the form of mushrooms, and is not too difficult to produce if one knows how to grow psilocybin mushrooms. These facts make psilocybin (in the form of “magic mushrooms”) a not-so-difficult substance to be found in the black market.

Psilocybin’s most important use, however, is not its recreational use, but it’s medicinal use. Psilocybin has been found to be a very efficacious and potent antidepressant substance, with rapid, large and sustained antidepressant effects when administered to patients with major depressive disorders. [iii] In psychotherapy, psilocybin is a powerful tool to facilitate the recall of salient memories or to reverse negative cognitive biases. [iv] It can also relieve symptoms of obsessive-compulsive disorder [v] and can be used to treat cluster headaches. [vi],[vii]

In the context of patients with cancer-related psychiatric distress, administration of psilocybin has been found to decrease symptoms of depression, anxiety and death anxiety, along with increases in quality of life, life meaning and optimism, with long-lasting and sustained effects. Even patients with treatment-resisted depression experienced reduction in symptoms of depression and anxiety three months after being administered psilocybin. Psilocybin is also promising in the treatment of tobacco and alcohol addictions. [viii],[ix]

Nevertheless, in spite of psilocybin’s extremely promising therapeutical uses, it still is a prohibited substance. Increase of scientific research on the potential health benefits of psilocybin, however, is slowly changing the status quo, moving it, hopeful, toward a more flexible regulatory regime, but this is something that we are yet to see.

Because psilocybin occurs naturally in some mushrooms, producing psilocybin is not rocket science; all one needs to produce psilocybin mushrooms is knowledge of how to grow mushrooms, and psilocybin mushroom spores. While psilocybin is a prohibited substance under the CDSA, psilocybin mushroom spores generally do not contain psilocybin, as this substance is produced in the fruiting body. It is possible, however unlikely, that some traces of psilocybin may be found in some spores. For the purpose of this article, we are assuming that spores do not contain psilocybin. It is also assumed for the purposes of this article that spores do not have any medicinal effects and so they do not fall into the drug definition in the Food and Drug Act. If spores were captured by the Food and Drug Act then it would be prohibited pursuant to the Food and Drug Act to sell them under any circumstances.
Drug is defined in the Food and Drug Act asany substance or mixture of substances manufactured, sold or represented for use in

1. the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,
2. restoring, correcting or modifying organic functions in human beings or animals, or
3. disinfection in premises in which food is manufactured, prepared or kept.

In this paper, we are going to discuss the legal status of psilocybin mushroom spores in Canada.

Historical framework and the CDSA

Possession, trafficking, and production of psilocybin was not illegal in Canada until 1974, when the Food and Drugs Act [x] (“FDA”) was amended by way of regulation by the Governor in Council [xi] to include psilocybin, psilocin and their salts among the restricted drugs listed in Schedule H to the FDA. The legal framework set out in the FDA was in force until 1996, the year when Parliament passed the CDSA to consolidate Canada’s drug control policy in order to fulfil obligations under international treaties. Section 82 of the CDSA repealed the Narcotic Control Act [xii] (“NCA”) as well as Parts III and IV of the FDA, including Schedule H.

The three major goals of the CDSA are [xiii]:

• to provide “a framework for the control of import, production, export, distribution and use of substances that can alter mental processes and that may produce harm to health and to society when distributed or used without supervision”;
• to provide “mechanisms to ensure that the export, import, production, distribution and use of internationally regulated substances are confined to medical, scientific and industrial purposes”; and
• the provision of enforcement measures.

The intent of the CDSA is to reduce harm, to individuals and to society, caused by abuse or unsupervised use of certain substances that can alter mental processes. The intent of the law is not to criminalize drugs and substances in themselves; rather, the intent of the law is to restrict and control access to some drugs and substances in order to reduce actual or potential harm caused by misuse. As a matter of fact, the CDSA itself (as well as regulations under the CDSA) provide for the possibility of legal access to controlled drugs and substances by way of exemptions. No drugs and substances are illegal under the CDSA; what is illegal is possessing, trafficking and/or producing controlled drugs and substances without an exemption by the minister.

The repeal of Schedule H did not mean, however, that possession, trafficking or production of psilocybin became legal in Canada, as psilocybin and psilocin are still controlled substances under Schedule III to the CDSA. They are also included in Part I of the Schedule to Part J of the FDR. Penalties range from a fine up to $1000 for possession [xiv] to a term in prison up to ten years for the offences of trafficking, possessing for the purpose of trafficking [xv], importing and exporting, possessing for the purpose of exporting [xvi], and producing [xvii] controlled substances in Schedule III to the CDSA. Possessing, producing, selling, importing or transporting anything intended to be used to produce or to traffic in a Schedule III controlled substance may also result in a maximum ten-year term in prison. [xviii]

Those legal provisions are applicable to psilocybin. However, is it the same in relation to possessing, trafficking or producing psilocybin mushroom spores, even if the spores do not contain psilocybin?

Legal framework

Prior to 1982, Canadian courts understood that possession of psilocybin in the form of mushrooms could not support a conviction for possession of a restricted drug contrary to s 41(1) [xix] of the FDA because it occurs freely in nature (R v Parnel [xx], R v Cartier [xxi]). However, in the judgement delivered by McIntyre J in R v Dunn [xxii] in 1982, the SCC understood that “the fact that psilocybin may be contained within a mushroom does not destroy its character as a restricted drug under Schedule H of the FDA. It could therefore, …, be as much the subject of a conviction for possession as it could be for trafficking” (R v Dunn, at para 18). Since then, “magic mushrooms” have been equated with psilocybin, and the possession, trafficking or production of “magic mushrooms” is an offence under the CDSA.

However, is the same valid for the possession, traffic or production of “magic mushrooms” spores, as the spores contain no psilocybin or psilocin? To answer this question, we must first look at the statutory framework set out by the CDSA and then to case law.

The relevant statutory law to answer this question is s 7.1 of the CDSA. [xxiii] That section was added to the CDSA in 2011 and amended in 2017. The offence in 7.1(1) reads (as of today):

7.1 (1) No person shall possess, produce, sell, import or transport anything intending that it will be used

(a) to produce a controlled substance, unless the production of the controlled substance is lawfully authorized; or

(b) to traffic in a controlled substance.

[Emphasis added]

The actus reus of the offence also includes equipment or anything else that can be used to produce or traffic in a controlled substance. It is important to notice that mere possession, production, sale, importation or transportation of a substance (e.g., a precursor) or a piece of equipment that can be used to produce a controlled substance is not an offence; the mens rea of the offence in s 7.1 requires the intention to use that substance or equipment to produce or to traffic in a controlled substance.

There have been few cases of conviction under s 7.1, mostly having to do with possession of precursor chemicals to produce methamphetamine:

1. In R v Chui [xxiv], the accused was convicted for possessing precursor chemicals to produce methamphetamine as well as for producing methamphetamine, possessing it for the purpose of trafficking, and arson by negligence.
2. In R v Feser [xxv], the accused pled guilty for unlawfully possessing, producing and importing red phosphorus knowing that it would be used to produce methamphetamine. He also pled guilty for trafficking in and producing a controlled substance (MDA) and attempting to produce a controlled substance (fentanyl).
3. In R v Mendham [xxvi], the accused was addicted to methamphetamine and he was using a small lab to produce methamphetamine for himself. There was a fire in the premises that he was the lessee, and responders noted materials consistent with the production of methamphetamine. As result, the police arrested him. He entered a guilty plea for contravention of s 7.1, and for theft and for failing to comply with a condition of his release.

I could not find any case in which the possession of “magic mushrooms” spores effected a conviction for contravention of s 7.1 of the CDSA.

As we can see in the cases above, it is not unusual that convictions or pleas of guilty for contravention of s 7.1 come with convictions or pleas of guilty for other related offences under the CDSA. However, as in R v Mendham, possession of the materials necessary to produce a controlled substance may effect a conviction for contravention of s 7.1. Again, it is important to observe that mere possession of materials that may be used to produce a controlled substance is not contravention of s 7.1; it is required that those materials are intended to be used to produce a controlled substance, and the Crown has the onus to prove that intent beyond a reasonable doubt. From the context in R v Mendham, it is clear that the accused had a private lab and that the materials were intended to produce methamphetamine.

The cases above show that possession of precursor chemicals to produce a controlled substance is a contravention of s 7.1. In the case of “magic mushroom”, however, spores are not chemical precursors. Past, pre-legalization regulations on cannabis seeds are the closest to regulations on “magic mushroom” spores could be compared. That previous regulatory regime of cannabis seeds may help answer our question whether possession, traffic or production of “magic mushroom” spores is a contravention of s 7.1 of the CDSA.

In R v Hunter [xxvii], the police seized cannabis seeds from the accused’s hemp store, on July 26, 1996. On testing, the seeds were found to have a high germination rate, i.e., they were not non-viable seeds. The trial judge convicted the accused of possession of cannabis for purpose of trafficking. On appeal, he argued that viable cannabis seeds were not prohibited by provisions of the NCA.[xxviii] The British Columbia Court of Appeal understood that viable seeds constituted a prohibited substance under the NCA. The court noted, at para 13, that “[t]he material seized from the appellant's store premises,…, leave no possible doubt but that the appellant was selling seeds that could be grown into marijuana. From those plants the drug substance could be obtained for those minded to do so.”

R v Hunter stands for the proposition that it is illegal to possess or traffic in the seeds of a plant from which a controlled substance can be obtained. This is one step beyond R v Dunn, which equated possessing or trafficking in a plant from which a controlled substance can be obtained to possessing or trafficking in the controlled substance itself. In the former, the seed has just the potential to become a plant that contains the controlled substance, differently from the latter, which involves the plant itself.

Although the NCA and its cannabis seeds provisions were repealed and cannabis seeds are now under the regulatory scope of the Cannabis Act [xxix], I believe R v Hunter is a precedent that can be used to clarify the application of s 7.1 of the CDSA to the spores of “magic mushrooms.” Section 7.1 proscribes the possession, sale, etc., of anything (whether it is organic or inorganic, a substance or piece of equipment, etc.) that is intended to be used to produce a controlled substance. R v Hunter stands for the proposition that spores, just like seeds, can be used to produce a plant that contains a controlled substance, which is equal to producing the controlled substance itself (R v Dunn).

Conclusion

Although psilocybin mushroom spores do not contain psilocybin and, for that reason, theoretically it is legal to possess those spores, s 7.1 of the CDSA proscribes possessing, producing, trafficking or transporting anything that is intended to be used to produce or traffic in a controlled substance.

Innocent possession or trafficking of psilocybin mushrooms spores is not a contravention of s 4(1) [possession], s 5(1) [trafficking] or s 5(2) [possession for purpose of trafficking] of the CDSA. A person may be in possession of psilocybin mushroom spores because the person wants to create a seed bank, use them in some exotic cooking experiment, for scientific experimentations, decorative purposes, and so on. However, if the person ever intended to use the psilocybin mushroom spores to grow “magic mushrooms”, then the possession of psilocybin mushroom spores is a contravention of s 7.1 of the CDSA and the person is liable to a maximum ten-year-term in jail.

To be safe, if a person wants to possess or to deal with psilocybin mushroom spores, the person had better obtain a s 56 exemption for that purpose as well as the appropriate licences (dealer’s licence or producer’s licence) to deal with psilocybin mushroom spores. Otherwise, the person risks criminal prosecution under the CDSA and an eventual term in jail.

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[i] SC 1996, c 19.

[ii] CRC, c 870.

[iii] Davis, Alan K., Frederick S. Barrett, Darrick G. May, Mary P. Cosimano, Nathan D. Sepeda, Matthew W. Johnson, Patrick H. Finan, and Roland R. Griffiths. "Effects of Psilocybin-Assisted Therapy on Major Depressive Disorder: A Randomized Clinical Trial." JAMA Psychiatry (Chicago, Ill.) (2020), https://doi.org/10.1001/jamapsychiatry.2020.3285

[iv] Carhart-Harris, R. L., R. Leech, T. M. Williams, D. Erritzoe, N. Abbasi, T. Bargiotas, P. Hobden, et al. "Implications for Psychedelic-Assisted Psychotherapy: Functional Magnetic Resonance Imaging Study with Psilocybin." British Journal of Psychiatry 200, no. 3 (2012): 238-244.

[v] Moreno, Francisco A., Christopher B. Wiegand, E. Keolani Taitano, and Pedro L. Delgado. "Safety, Tolerability, and Efficacy of Psilocybin in 9 Patients with Obsessive-Compulsive Disorder." The Journal of Clinical Psychiatry 67, no. 11 (2006): 1735-1740.

[vi] Sempere, A. P., L. Berenguer-Ruiz, and F. Almazán. "Chronic Cluster Headache: Response to Psilocybin." Revista De Neurologiá 43, no. 9 (2006): 571.

[vii] Sewell, R. Andrew, John H. Halpern, and Jr Pope Harrison G. "Response of Cluster Headache to Psilocybin and LSD." Neurology 66, no. 12 (2006): 1920-1922.

[viii] Johnson, Matthew W. and Roland R. Griffiths. "Potential Therapeutic Effects of Psilocybin." Neurotherapeutics 14, no. 3 (2017): 734-740.

[ix] Griffiths, Roland R., Matthew W. Johnson, Michael A. Carducci, Annie Umbricht, William A. Richards, Brian D. Richards, Mary P. Cosimano, and Margaret A. Klinedinst. "Psilocybin Produces Substantial and Sustained Decreases in Depression and Anxiety in Patients with Life-Threatening Cancer: A Randomized Double-Blind Trial." Journal of Psychopharmacology (Oxford) 30, no. 12 (2016): 1181-1197.

[x] RSC 1970, c F-27.

[xi] SOR/74-198.

[xii] RSC 1985, c N-1.

[xiii] CDSA, Summary.

[xiv] CDSA, s 4(6)(b)(i).

[xv] CDSA, s 5(3)(b)(i).

[xvi] CDSA, s 6(3)(b)(i).

[xvii] CDSA, s 7(2)(c)(i).

[xviii] CDSA, s 7.1(2)(a)(i).

[xix] Repealed, 1996, c 19, s 81.

[xx] (1979), 51 CCC (2d) 413 (BCCA).

[xxi] (1980), 54 CCC (2d) 32 (ABCA).

[xxii] (1982), 1 CCC (3d) 1 (SCC).

[xxiii] 2011, c 14, s 1; am 2017, c 7, s 6.

[xxiv] 2015 ONSC 2490.

[xxv] 2015 ABQB 786.

[xxvi] 2016 YKTC 42.

[xxvii] 2000 BCCA 363, leave to appeal refused 2000 CarswellBC 2447 (SCC).

[xxviii] The CDSA came into force only on May 14, 1997.

[xxix] SC 2018, c 16.