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‘This is the landmark case that is going to legalize psychedelics in Canada’

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Eight Canadians have filed a Charter challenge against the Government of Canada and the Minister of Health regarding patient access to psilocybin and psilocybin therapy.

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The plaintiffs, which include seven patients and one health-care practitioner, are arguing that the current modes of accessing psilocybin are insufficient and a violation of Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person.

It’s a similar argument to the landmark court case, R v Parker, which led to Canada’s first medical cannabis laws.

The challenge is supported by TheraPsil, a B.C.-based non-profit that has fundraised to cover legal fees and has previously worked with each of the plaintiffs to help them secure legal access to psilocybin, though not always successfully.

“This is the landmark case that is going to legalize psychedelics in Canada,” says TheraPsil’s CEO Spencer Hawkswell.

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Currently, there are three ways to legally access psilocybin, or magic mushrooms, for medical purposes.

The Charter challenge argues that each of these pathways — obtaining a personal exemption from the Minister of Health under subsection 56(1) of the Controlled Drugs and Substances Act (CDSA), working with a doctor to obtain an authorization through Canada’s Special Access Program or enrolling in a clinical trial — do not adequately serve the needs of patients.

Several of the plaintiffs have terminal diagnoses, including Thomas Hartle, who was diagnosed with stage four colon cancer in 2016.

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Hartle, an IT professional and father of two from Saskatoon, became a medical cannabis consumer shortly after his cancer diagnosis, trying the plant for the first time at the age of 48.

“If it works, I will use it,” Hartle told Postmedia in 2020, as he was waiting to hear back on the status of the S.56 application. “That’s my whole litmus test. Cannabis, I felt, was a very effective tool. I believe that psilocybin will also be an effective tool.”

Hartle, with assistance from TheraPsil, applied for the exemption in June 2020. Health Canada then requested more information, which was provided in two more supplementary letters in July 2020.

On August 2, 2020, Hartle was granted the CDSA exemption, valid for one year. He underwent psilocybin-assisted psychotherapy shortly after.

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In doing so, he became the first Canadian to legally consume psilocybin for medical purposes. He reported a significant decrease in his anxiety and distress, improvements that lasted several months and came without the side effects of pharmaceutical medications.

“I have had anxiety for so long, I had sort of forgotten what it feels like to not have it,” Hartle said a week after the therapy session. “To experience the lack of anxiety I have had this week is beyond words. It’s amazing. I have no idea how long this particular benefit will last, but so long as it’s here, it’s really, really amazing and good.”

Hartle was granted the CDSA exemption for one year on Aug. 2020.
Hartle was granted the CDSA exemption for one year on Aug. 2020. Photo by Michelle Berg /Saskatoon StarPhoenix

Hartle underwent psilocybin-assisted psychotherapy two more times before his exemption expired. According to the court filing, Hartle’s cancer has spread throughout his abdominal cavity. He has tumours in 51 locations, 47 of which are undetectable through medical scans, leaving doctors unable to offer a prognosis about how much time he may have left.

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Though he experienced months of relief following each of his psilocybin therapy sessions, his exemption has now expired and he no longer has timely means of accessing psilocybin. In October of last year, he submitted an application for a second S.56 exemption. He has yet to hear back.

Other plaintiffs in the challenge have pursued psilocybin therapy illegally after being denied an exemption or waiting for more than a year without a response. Like Hartle, several of the plaintiffs have a terminal cancer diagnosis, while others have conditions that include major depressive disorder, anxiety and addiction.

Another one of the plaintiffs has had four separate bouts of sepsis and lives in chronic pain. They are seeking relief from years-long intractable migraines, a condition for which Health Canada believes there is inadequate evidence to support the use of psilocybin, according to the court filing. The patient has pursued prescription pharmaceuticals, including OxyContin, morphine, fentanyl and nerve blockers to no effect.

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“The hoops that patients with cancer need to jump through to get access to their medicine is barbaric,” says Hawkswell. “We’ll look back at this and just see it as barbarism.”

TheraPsil says it has previously initiated three court challenges against the government, all of which were resolved in favour of the patients before court proceedings began. Hawkswell says over the past two years, the non-profit has been overwhelmed by applications from Canadians who need help accessing care. The organization’s waitlist now stands at more than 800 patients.

TheraPsil has had to focus largely on patients with terminal cancer. In an effort to support the implementation of proper medical regulations, the organization sent a 165-page document to Health Canada last year, an undertaking that Hawkswell estimates would have cost the agency hundreds of thousands of dollars to complete on its own.

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“For two years, we’ve done absolutely everything in our power to play nicely with the government,” he says. “If we get this, nobody in Canada will ever have to go to court again for access to psilocybin. No more people will be dying waiting for access. This is what we’ve been working towards.”

The statement of claim also argues that a framework for constitutionally viable access to psilocybin already exists in the context of cannabis law.

It’s really, really amazing and good

In 2000, an Ontario court ruled that Toronto resident Terry Parker, who had suffered epileptic seizures since his teens and found relief through cannabis, could grow the plant legally and threw out previous charges for possession and trafficking. The court agreed that the absolute prohibition of cannabis by the CDSA contravenes section 7 of the Charter.

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“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,” the court ruled. “Deprivation of this right must also accord with the principles of fundamental justice. The choice of medication to alleviate the effects of an illness with life-threatening consequences is such a decision.”

That case led to the creation of Canada’s first medical cannabis laws and Hawkswell believes the current Charter challenge should follow a similar path.

“This is a near replica of Parker,” he says. “The outright prohibition of psilocybin is against our Charter and that was made evident with cannabis.”

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Hawkswell says they are hoping for a resolution as quickly as possible, ideally within the next month.

“This is about people getting access to their medicine and this is why we’re targeting Jean-Yves Duclos. He’s the one who’s being sued here because he’s the one whose responsibility it is to fix this,” he says.

Hawkswell adds that the previous Minister of Health, Patty Hajdu, who granted the vast majority of exemptions over the past two years, displayed a level of empathy that has been absent under Duclos’ leadership.

“He has not displayed the same level of compassion or courage,” says Hawkswell. “But we’re hoping that we can help him.”

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