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Criminal - Controlled Drugs and Substances Act (CDSA). Toth v. Canada (Mental Health and Addictions)
In Toth v. Canada (Mental Health and Addictions) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an unsuccessful JR, that against decisions "reiterating the reasoning of the notices of intent to refuse" "requests to Health Canada under subsection 56(1) [SS: 'Exemption by Minister'] of the CDSA for exemptions from section 4 of the Act to allow them to possess, transport, and consume psilocybin mushrooms for a PSAP training program".
Here the court illustrates and comments on a s.56 CDSA ['Exemption by Minister'] criminal drug exemption:[1] Psilocybin is a psychoactive compound found in certain mushrooms. It is classified as a drug under the Food and Drugs Act, R.S.C., 1985, c. F-27. It is also listed as a controlled substance under Schedule III of the Controlled Drugs and Substances Act, S.C. 1996 c. 19 (CDSA, the Act), and its possession is criminally prohibited by section 4 unless otherwise authorized. The Minister of Health has discretion under subsection 56(1) of the Act to grant exemptions from the application of section 4 where possession of a prohibited substance is necessary for medical or scientific purposes or is otherwise in the public interest.
[2] Psilocybin-assisted psychotherapy (PSAP) is the medically-supervised consumption of psilocybin. PSAP has been used for treatment or management of serious medical conditions, including end-of-life distress and treatment-resistant depression.
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[81] Vavilov teaches that the legal and factual constraints bearing on a decision maker inform a reviewing court’s assessment of the reasonableness of a decision; the decision maker’s authorizing legislation is particularly relevant (at paras. 106, 108). Here, the exemption requests were submitted pursuant to subsection 56(1) of the CDSA, the Minister’s empowering legislation. In applying this provision, the Minister must "“consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice”"; balancing the dual public health and public safety objectives of the CDSA guides the Minister in this analysis (PHS, at paras. 152-153).
[82] Subsection 56(1) endows the Minister with a broad discretion, underscored by the words "“opinion”" and "“public interest”" in the provision, to grant exemptions, echoing the Supreme Court of Canada in PHS (at para. 39):"56 (1) The Minister may, on any terms and conditions that the Minister considers necessary, exempt from the application of all or any of the provisions of this Act or the regulations any person or class of persons or any controlled substance or precursor or any class of either of them if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest."
"56 (1)"" S’il estime que des raisons d’intérêt public, notamment des raisons médicales ou scientifiques, le justifient, le ministre peut, aux conditions qu’il estime nécessaires, soustraire à l’application de tout ou partie de la présente loi ou de ses règlements toute personne ou catégorie de personnes, ou toute substance désignée ou tout précurseur, ou toute catégorie de ceux-ci." This language gives effect to the CDSA’s purpose of balancing the competing interests of public safety and public health (PHS, at para. 20).
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[95] Though, as I have already explained, neither the section 7 rights of the patient appellants or the HCPs are engaged, I see no principled reason why the words of McLachlin C.J.C. in PHS, that "“[t]he Minister cannot simply deny an application for a s. 56 exemption on the basis of ""policy simpliciter,” do not also apply from an administrative law perspective" (at para. 128). In 2020, the Minister was satisfied that subsection 56(1) exemption requests should be granted to HCPs for PSAP training purposes as a matter of public interest. It was incumbent on the Minister to explain why the nearly identical exemption requests at issue in this case were no longer in the public interest, but a clinical trial was. The Decisions do not provide this explanation, and thus failed to demonstrate the necessary transparency for a reasonable decision under Vavilov. I am not satisfied that the justificatory burden has been met, and would allow the appeal on this basis. . R. v. Campbell [exigent circumstances]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
The court considers when a warrantless search may be justified for 'exigent circumstances', here under the Controlled Drugs and Substances Act (CDSA):(a) Legal Principles
(i) Section 11(7) of the CDSA
[111] Section 11(1) of the CDSA authorizes a justice to issue a warrant to search a place for a controlled substance and to seize it. By exception, s. 11(7) authorizes a peace officer to search the place without a warrant, if the conditions for a warrant exist but “exigent circumstances” make it “impracticable” to obtain one. Section 11(1) and (7) provides:11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
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(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. (ii) Two Requirements Under Section 11(7)
[112] In Paterson, Brown J. interpreted s. 11(7) as having two requirements. First, it must be shown that there were “exigent circumstances”, which “denot[e] not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety” (para. 33 (emphasis in original)). Second, it must be shown that the conditions for obtaining a warrant existed, but that exigent circumstances “render[ed] it ‘impracticable’ to obtain a warrant”, meaning that it was “impossible in practice or unmanageable to obtain a warrant” (paras. 34 and 36; see also para. 28). Thus, the “exigent circumstances must be shown to cause impracticability” (para. 34). Justice Brown summarized the two requirements of s. 11(7) as follows:... for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives. [para. 37] (iii) The Evidentiary Threshold: Reasonable and Probable Grounds
[113] As urged by the Crown and the intervener Criminal Lawyers’ Association (Ontario), the police must have reasonable and probable grounds, rather than merely reasonable suspicion, for the claimed exigency under s. 11(7). The higher standard of reasonable and probable grounds helps ensure that the police are not relieved too readily of the obligation to obtain a warrant, given the privacy and liberty interests engaged when weighed against the needs of law enforcement (see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at pp. 240-43; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31 and 41; Tse, at para. 33; Fearon, at paras. 69-73; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 43).
[114] The standard of reasonable and probable grounds requires the Crown to establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them; it does not require the Crown to establish the exigency on the balance of probabilities (see R. v. Beaver, 2022 SCC 54, at para. 72, discussing the standard of reasonable and probable grounds for a warrantless arrest). The Crown must show that the officers’ reasonable belief in the exigency was “objectively grounded in the circumstances of the case” (R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408, at para. 73; see also para. 79; Beaver, at para. 72; Hobeika, at para. 45). The subjective views of the police must have been objectively reasonable (Beaver, at para. 72; R. v. McCormack, 2000 BCCA 57, 133 B.C.A.C. 44, at para. 25). A vague, speculative, or general concern that delaying a search to obtain a warrant would risk the loss of evidence does not meet the exigency threshold (Pawar, at para. 72).
(iv) The Standard of Appellate Review
[115] A trial judge’s assessment of the evidence and findings of fact in applying s. 11(7) attract “substantial deference” on appeal (see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 25; Hobeika, at para. 45). But whether the facts as found by the trial judge meet the legal standard for exigency under s. 11(7) is a question of law reviewable for correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 26; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60). As this Court has emphasized, “[w]hether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed ‘through the “lens of hindsight”’” (Cornell, at para. 23, quoting Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45). Courts should not second‑guess reasonable operational decisions taken by the police (Hobeika, at para. 52, citing Cornell, at paras. 24 and 36).
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[125] Finally, I accept that the police cannot devise an investigative strategy to create circumstances of exigency in order to proceed without a warrant. In some cases, “[i]f the police strategy creates the supposed urgency, the circumstances are not ‘exigent’, but are anticipated, if not planned for, by the police” (Hobeika, at para. 49, per Doherty J.A., citing R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at paras. 49-53 and 84-86, per La Forest J., dissenting, and R. v. Phoummasak, 2016 ONCA 46, 350 C.R.R. (2d) 370, at paras. 15-18). In this case, however, after Dew’s first four text messages, the police “were faced with an active, unfolding crime” (R. v. Webster, 2015 BCCA 286, 374 B.C.A.C. 129, at para. 90; see also R. v. Hunter, 2015 BCCA 428, 378 B.C.A.C. 165, at para. 30). As a result, the police responded to, but did not create, the situation of exigency.
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