Does a schedule that include “psiocybin” include “psilocybe mushrooms”? The courts in Canada tend to say yes.
“… possession of the restricted drug Psilocybin (Magic Mushrooms).” (Anderson, J.A. R. v. Guthro, 1990 CanLII 1022 (BC CA), <http://canlii.ca/t/1d7jt>, retrieved on 2019-10-09)
“[60] In R. v. Dunn, McIntyre stated at p. 683:
In reaching his conclusion on the ‘no evidence’ motion the trial judge followed Parnell and decided that there was no evidence before him because Psilocybin contained in a mushroom is not listed in Schedule H as a restricted drug. The question which faced him, however, was not whether Psilocybin naturally occurring in a mushroom is listed in Schedule H but whether there was evidence before him upon which a properly instructed trier of fact could have found the respondent guilty of trafficking in Psilocybin which clearly is.
In the face of the evidence given at trial and the concession made by counsel for the respondent that Psilocybin, not merely the constituents from which it could be made, existed in the mushrooms, it could not be said that there was not some evidence of trafficking in Psilocybin. The mushrooms contained the drug.” (R. v. Dunn, [1982] 2 SCR 677, 1982 CanLII 214 (SCC), <http://canlii.ca/t/1z1dc>, retrieved on 2019-10-09)
The International Narcotics Control Board (INCB), on the other hand, says no:
As a matter of international law, no plants (natural material) containing psilocine and psilocybin are at present controlled under the Convention on Psychotropic Substances of 1971. Consequently, preparations made of these plants are not under international control and, therefore, not subject of the articles of the 1971 Convention. (http://www.vanpsilocybe.ca/wp-content/uploads/2019/10/mushrooms_law12.pdf, downloaded from Schouten A. “International Legal Status of Psilocybin Mushrooms”. Erowid.org. Oct 5 2004; /plants/mushrooms/mushrooms_law11.shtml.)
A similar statement appears here:
In contrast, although some active stimulant or hallucinogenic ingredients contained in certain plants are controlled under the 1971 Convention, no plants are currently controlled under that Convention or under the 1988 Convention. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control. (http://www.incb.org/documents/Publications/E-Publication_FINAL.pdf, backup)
Both the Convention on Psychotropic Substances of 1971 (CPS) and the Controlled Drugs and Substances Act of Canada (CDSA) use broadly similar language:
4 (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III. (CDSA, ss. 4(1))
The CPS provides that
The Parties shall not permit the possession of drugs except under legal authority. (CPS, Article 33)
And
“Drug” means any of the substances in Schedules I and II, whether natural or synthetic.(CPS, art. 1(1)(j))
So, the CPS provides that the parties shall not permit the possession of any of the substances in schedules I and II, whether natural or synthetic. It must be emphasized here that even the phrase “natural or synthetic” does not extend to include psilocybe mushrooms. This wording is more or less identical to the CDSA. How is it, then, that the CDSA manages to include psilocybe mushrooms within the ambit of “psilocybin” when the INCB says that the CPS’s scheduling of psilocybin does not extend to psilocybe mushrooms?
The INCB’s plain position is that for a plant material to be scheduled, it must be named specifically. It would likely be possible to generally schedule every particular plant that contained psilocybin, but that would require a specific statement that all plants containing psilocybin are scheduled. The reading in of “psilocybe mushrooms” from “psilocybin” is overly broad and not in line with international norms of drug law construction, and, indeed, construction of law in general. If psilocybe mushrooms are not “subject of the articles of the 1971 Convention,” it is illogical and unreasonable that they should be subjects of the CDSA, given that the wording in the CPS and CDSA are nearly identical.
Dunn also fails to consider that psilocybin is a different substance from psilocybe mushrooms and that they cannot be used interchangably in every sense. One could easily put a large dose of psilocybin, for example, into someone’s beer, as it would be, as a substance, a soluble crystal. Psilocybe mushrooms, on the other hand, if you put those in someone’s beer, he’d wonder why it had turned blue and sludgy. So, there is also the very real problem of psilocybe mushrooms not sharing all of the properties of psilocybin that lead to its being a subject of regulation. If we take psilocybin to mean the drug in a reasonably pure form, then psilocybin has properties that mushrooms do not have, including the capacity to adulterate other drugs, or to be adulterated with other drugs. Someone buying psilocybin on the street cannot, by visual inspection, determine if he is buying psilocybin. Someone buying psilocybe mushrooms, on the other hand, can by visual inspection be reasonably confident of the species of mushroom.
Thus, the CDSA schedules a substance, psilocybin, that could be put into someone’s drink—the substance is not an abstract notion, the substance is a particular material which has the property of being easily dissolved in a drink. Psilocybe mushrooms cannot easily be dissolved in a drink and, therefore, they are not within the ambit of psilocybin. In Dunn, the court did not consider these sorts of arguments, nor was it considered that the INCB itself says that scheduling psilocybin does not schedule psilocybe mushrooms. It is illogical and unreasonable that the same words should mean one thing in the CDSA, another in the CPS. For Canada’s position to be tenable, it would mean that the INCB is misconstruing the CPS and that the CPS really does require member states to schedule psilocybe mushrooms and to prosecute their possession under the treaty. This is not true. States may certainly enact domestic legislation prohibiting psilocybe mushrooms, but Canada has not enacted any such legislation.