TheraPsil’s
Charter Challenge 2022

Section 7 of Canada’s Charter of Rights and Freedoms guarantees that all Canadians have the rights to “life, liberty and security of person”.

Canadian courts have ruled in two landmark cannabis cases that the absolute prohibition of cannabis by the Controlled Drugs and Substances Act (CDSA) contravenes section 7:

“Liberty includes the right to make decisions of fundamental personal importance, including the choice of medication to alleviate the effects of an illness with life-threatening consequences ... Deprivation by means of a criminal sanction of access to medication reasonably required for the treatment of a medical condition that threatens life or health also constitutes a deprivation of security of the person.”
R. v Parker, Ontario Court of Appeal, 2000

The prohibition on possession of … of medical marihuana limits the s. 7 Charter right to liberty of the person in two ways. First, the prohibition deprives … medical marihuana users of their liberty by imposing a threat of imprisonment on conviction ... Second, it limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes security of the person.”
R. v. Smith, Supreme Court of Canada, 2015

These rulings compelled the federal government to amend the CDSA to allow for the medical use of cannabis. The decision to use cannabis medically is now made between patient and doctor, with no requirement for bureaucratic approval.

Psilocybin, like medical cannabis, represents a reasonable medical choice, and a more effective treatment for many patients suffering from anxiety, depression, PTSD, substance misuse and end-of-life distress. Such patients are entitled to compassionate care because all other medical alternatives have proved inadequate.

The current CDSA limits the liberty of patients needing psilocybin just like it did for cannabis: it forecloses a reasonable medical choice through the threat of criminal prosecution. Similarly, by forcing a patient to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes on security of person for the psilocybin patient. The law must be changed to bring it into conformity with the Charter: the decision to use psilocybin medically will be made between doctor and patient; patients will no longer have to go cap-in-hand to a government bureaucrat.