Possessing Psilocybin: Magic Mushrooms and the Law

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The countdown to the 2018 legalization of marijuana is on and, as of September 8th, the provincial government in Ontario has begun to float its ideas for distribution, pricing, and control.

Nationwide, marijuana users are about to come out of the shadows and give up their status as outlaws and criminals. Pot is going mainstream, with heady promises of exotic cannabis varietals, food pairings, and trendy menus of edibles.

Assuming the Trudeau government stays on track with its plans for marijuana legalization, will the door now be opened for the societal acceptance of other drugs?

Consider the ‘shroom. Contrasted with the international trend towards the legalization of pot, magic mushrooms appear to be moving in the opposite direction.

Until 2008, varieties of mushroom were sold in Amsterdam and throughout the Netherlands legally. In Japan, where marijuana possession is a serious offense that warrants jail time, magic mushrooms were legal to buy from stalls on the street until 2002.

In Newfoundland and Labrador, cases involving magic mushrooms are not exactly clogging up the justice system. Mark Gruchy, a lawyer with Gittens and Associates, says that in his 10 years of practising law, he has yet to oversee a case involving mushrooms.

“That’s a pretty unusual occurrence, to have anything to do with mushrooms show up in a court process,” says Gruchy.

Like steps descending a staircase, the maximum penalties for drug possession are classified in “Schedules,” with Schedule One being the most severe (“one” written as “I” in roman numerals).

The drugs of Schedule One are opioids and narcotics, those that are typically thought of as “hard drugs,” including MDMA and extasy. Seven years imprisonment is the maximum sentence. ScheduleTwo, the “soft drugs” of marijuana and its derivatives, carry a maximum jail term of five years.

Then we come to Schedule Three, which encompasses hallucinogens, including LSD, mushrooms, and mescaline.“With respect to Schedule Three, it’s an indictable offence not exceeding three years,” says Gruchy. “Just to give you some context, that would be the most severe approach. You don’t generally ever see maximum sentences imposed for anything in the Criminal Code.”

Given that the law classifies “Schedule Three” mushrooms as less severe than “Schedule Two” marijuana, why not legalize mushrooms along with pot? Considering the legal categories, Gruchy weighed hallucinogens’ strange place outside either the “hard” or “soft” drug classifications.

“When we talk about hallucinogens in particular, hallucinogens have always sort of floated around those two categories,” says Gruchy.“My personal view of it is that they were illegalized because of, and they’re viewed the way they are, because of their potentially traumatic effect on people. And I suppose that the so-called ‘bad trip’ experience would be very disturbing for someone to observe or experience. These substances in and of themselves however, as I understand it, are not as toxic as things like the classic hard drugs, say, cocaine, opiates, and so on.”

Even issues of cultivation could become tricky where mushrooms are involved.

“Then you get into their really weird questions, legally,” says Gruchy. “Someone could have their property spontaneously producing these psilocybin-active mushrooms. And they could know they’re there. So are we under a duty to destroy these things when they are present on our property, just sitting in nature?”

Gruchy sees one possible route to making a legal case for magic mushrooms maintaining an outlaw status, “Some mushrooms are some of the most poisonous things on earth and can kill you very quickly, or slowly, in a very painful way. And that would probably be a more compelling argument to continue to regulate the sale of these sorts of mushroom in a clandestine fashion.”

For Justin Trudeau’s Liberal government, their position on the status of all other drugs has been clear: Despite championing pot’s legalization, discussions surrounding all other drugs are a non-starter. However, Jagmeet Singh’s win in the federal NDP leadership race may change things. He stated in his campaign platform that he wants to decriminalize all simple possession.

In the wake of marijuana’s newfound legal status, the 2018 debate around all illegal drugs – hard, soft, and otherwise – may gain even more oxygen on the national stage.

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David Keating

David lives in St. John’s, NL. On twitter, he is @writteninhaste.

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