Provincial and Municipal Psychedelic Regulation

Federal vs. Provincial

Pursuant to s. 91(27) of Canada’s Constitution Act, 1867, the federal government of Canada has exclusive authority over criminal law, subject to some narrow exceptions. Accordingly, psychedelic law in Canada is largely a matter of federal jurisdiction, as most psychedelic substances (e.g., psilocybin, LSD, MDMA) are criminally prohibited under the Controlled Drugs and Substances Act.

However, once a substance is legalized, provinces have considerable authority to regulate activities involving the substance pursuant to their powers under s. 92 of the Constitution Act, 1867. The diverse patchwork of provincial regulations governing the use and sale of cannabis across Canada attests to this.

“But, America…”

Under the US constitution and federalist division of powers, criminal law is not the exclusive domain of the federal government. As such, states can decriminalize or legalize psychedelics.

Nonetheless, it’s not technically correct to say that cannabis and other psychedelics are legal in those states that have legalized or decriminalized them. In such states, applicable substances may be legal or decriminalized at the state level, but they remain federally prohibited if they’re listed as such under the Controlled Substances Act, as most psychedelic substances are.

In short, those substances are still in-fact illegal. However, enforcement of the law is another matter…

Subnational Decriminalization

In November 2020, Vancouver’s city council unanimously voted in favour of a motion to ask the federal government to decriminalize possession of prohibited substances in the city. Toronto’s chief medical officer issued a similar request that month, and Montreal’s city council followed suit with a vote similar to Vancouver’s in January 2021.

In March 2021, Vancouver submitted its preliminary exemption request submission to the federal government.

All three of Canada’s largest cities are grappling with epidemics of addiction-related death exacerbated by the COVID-19 pandemic. Supporters of decriminalization believe it would strengthen the role and ability of health professionals working to address the crisis, while decreasing police involvement.

These municipal votes, however, are simply requests for the federal government to change the law or grant municipal exemptions under the Controlled Drugs and Substances Act. They are not the same as decriminalization initiatives in American cities like Washington, DC and Ann Arbor, Michigan, which effectively deprioritize enforcement of certain state and/or federal drug laws by municipal law enforcement authorities.

On November 1, 2021, British Columbia requested that the federal government grant it a s. 56 exemption to decriminalize possession of small amounts of most prohibited drugs, including psychedelics like psilocybin. The official request submission can be found here.

In May 2022, the federal government agreed to grant BC a limited exemption that would decriminalize personal possession of up to 2.5 grams of opioids, cocaine, methamphetamines, and MDMA (ecstasy) in the province. The exemption came into effect January 31, 2023, and will last until January 26, 2026 (at which point, it may be extended).

Psilocybin possession in BC was not decriminalized by this exemption, though many people appear to be under the incorrect impression that it was, on account of numerous psilocybin dispensaries operating illegally in plain sight in the province.

Subnational Regulation

In Canada, regulation of healthcare is split between the federal and provincial governments. The federal government regulates the use of drugs and pharmaceuticals, whereas provinces are responsible for the regulation of hospitals, doctors, and other licensed healthcare workers.

As psychedelics like psilocybin, LSD, and MDMA are federally-controlled substances, their use can only be permitted by the federal government, though how they are used by healthcare workers is subject to regulation by provincial governments. Cannabis, the recreational use and sale of which is broadly permitted under the federal Cannabis Act, is likewise further regulated by the provinces, which determine who can sell cannabis and how.

On October 5th, 2022, Alberta became the first province to announce regulations regarding the provision of psychedelic-assisted therapy. The regulations went into effect on January 16, 2023, and require, among other things, that:

  • Clinics providing psychedelic-assisted treatment be licensed under the Mental Health Services Protection Act and appoint a psychiatrist to serve as medical director;

  • Only a psychiatrist (or appropriately trained physician in consultation with a psychiatrist) prescribe psychedelic drugs used in treatment; and

  • Patients undergoing psychedelic treatments be monitored by health professionals during treatment sessions.

The regulations do not legalize psychedelic-assisted therapy in Alberta, but will apply where such treatment is federally-permitted. The text of the Alberta regulations can be found here.

Indigenous Jurisdiction

Various Canadian laws and treaties grant Indigenous groups in Canada authority to regulate businesses operating on tribal lands. As such, some Indigenous groups and provinces have entered into agreements establishing or clarifying Indigenous authorities’ ability to regulate cannabis-related businesses operating on tribal lands.

In some provinces though, such as Saskatchewan, in cases where there are no such agreements, it remains legally undetermined whether Indigenous authorities can regulate cannabis-related businesses operating on tribal lands without provincial authorization (see Indigenous Rights).