Is Ayahuasca Legal?

Legal Status of Ayahuasca

This conversation is limited in scope to Canada and is not legal advice. For an up to date overview of the legal status of Ayahuasca globally, see: https://www.erowid.org/

This issue is a complicated and important one. Who governs which spiritual or religious practices are valid, or invalid? Legal, or illegal? Who determines which world-views are acceptable, and which are silenced? What follows is not legal advice in any way, just my perspective.

My ancestors were persecuted and driven underground by the Christians for over 800 years, before being almost completely exterminated by the Communists. I feel privileged and honoured to be living at a time when the worst that can happen to a shaman is being sent to jail for a limited period of time. The significance of this situation, as a turning point of humanity and social justice, must not be overlooked.

With that said, there is still a long way to go with spiritual, cognitive, and consciousness freedoms. The moment that we are not vigilant in speaking out in defence of our freedoms is the moment that they are taken away. The policies of the Harper Government were a sharp reminder of this.

Because of the stigma surrounding sacred plant medicines in mainstream Canadian culture and media, it’s commonly believed that they are universally illegal in this country, that anything (other than alcohol) which alters your consciousness is by default verboten.

This is an inaccurate perception, and I will share some evidence with you to demonstrate. See footnotes for references.

While some say the jury is still out on the legal status of Ayahuasca, you should know that the jury was never called. They have no idea about Ayahuasca, or even DMT for that matter. They’ve never heard of it, never heard evidence on it, and no one in Canada has ever been convicted of a crime relating to Ayahuasca, as far as my legal research has been able to uncover.

In fact, only one person has ever been convicted of a crime related to pure DMT1 in Canada, and one conviction related to pharmaceuticalized Harmaline2.

Pure (either chemically extracted or lab synthesized) DMT and Harmaline are Schedule III in Canada, as are any “salts thereof”.

What does the United Nations International Narcotics Control Board – the international body which monitors whether or not countries are following international drug control laws – have to say about it?

No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including Ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.” ~Herbert Schaepe, Secretary, International Narcotics Control Board3

With the exception of marijuana, nowhere in the Controlled Drugs and Substances Act does it say that plants containing a controlled substance are illegal, and the above letter from the secretary explains why: that was never the intended scope of the international 1971 Convention on Psychotropic Substances, of which Canada was a participant.

Our drug control laws are based closely on the convention, so it stands to reason that our laws follow the same guidelines, and therefore Ayahuasca tea is completely legal… though legal precedent has muddied the simplicity of that conclusion.

What about entheogenic mushrooms and cacti?

Where the situation takes a complex turn is entheogenic mushrooms of the Psilocybe genus4. Until 1982, there had been some back and forth about its legal status.

The reasons it was not made illegal, according to the judges who refused to convict Barry Wayne Dunn (a medium to large scale mushroom distributor) was:
A) because the judge believed interpreting the law as making natural material containing controlled substances illegal was not the intent of the law, and
B) because it would create potential for “absurd situations”, where hard working BC farmers who had the innocent mushrooms growing in their pastures would become criminals, if they set that precedent.

The lower circuit judges refused to touch on reason A, the interpretation of the law, and focused instead on reason B, the absurdity test.

When the case went to the Supreme Court, the judge turned the tables. He said that reason B, the absurdity test, was invalid, because those farmers needed to know what the mushrooms were and be illegally using them to be breaking the law. This seems to contradict the legal maxim, “ignorantia legis neminem excusat” or “ignorance of the law excuses no one” but regardless, that was his determination.

Mushrooms growing in a field could obviously not be considered trafficking, but I don’t see how that could not be considered possession, in the same way the cows or crops on his field would be considered his possessions (legally speaking).

The supreme court judge looked at reason A, and made the legal determination that since the mushrooms contain psilocybin, which is illegal, and the dealer knew they contained it and was selling them exclusively for that reason, that they were psilocybin.

And since that time, if you read cases of dealers being charged for selling “magic mushrooms” they’re simply called “psilocybin” in the case files.

Testifying in court, a police officer might say, “He had 300 grams of psilocybin in his possession, which has a street value of $3000.” which is obviously not true, since 300 grams of pure psilocybin would have an astronomical street value.

The police officer would be talking about mushrooms that contain psilocybin, and essentially using a loop-hole created by legal precedent to call them psilocybin, thus making the accused a criminal.

While no such precedent exists regarding Ayahuasca the psilocybin situation is a related precedent, which could theoretically allow a judge to say, “Ayahuasca tea contains DMT and harmaline, therefore it is DMT and harmaline.”

The medicinal cactus peyote is in fact protected by name in Canadian law:

“Mescaline (3,4,5–trimethoxybenzeneethanamine) and any salt thereof, but not peyote (lophophora)” [emphasis added]

And it is generally assumed that this protection extends to all mescaline containing cacti, such as Peruvian torch. I personally find this strange, considering peyote is native to the southern Unites States and Mexico, while psilocybe mushrooms are native to BC and grow wild throughout the province.

But, the issue is more to do with potential for abuse and tax revenue subverting commerce than it is about where the medicines originate.

In terms of the “absurdity test” relating to DMT, about 0.05 milligrams of DMT passes through your cerebral-spinal fluid each day, or about one light “psychedelic” (meaning “Psyche manifesting” in Latin) dose every 200 days. It’s produced in the brain of every mammal, and naturally occurs in hundreds, possibly thousands of species of plants.

If it was not in your brain, you would not be able to experience REM sleep, and would therefore not be able to live long without it, and it’s likely involved in other functions of the brain. It’s present in human urine in trace amounts as well, meaning that as a species we are pouring rivers of DMT into our sewers every day.

Other issues complicating the legality of Ayahuasca include:

No one in good health has ever been directly harmed by it, as overdose is not possible, though negative interactions with other substances have occurred. Those with poor cardiac health or other health issues can have bad reactions.

It has a 2000+ year long track record of use as a medicine throughout South America, and is used medicinally and shamanically by at least 40 known tribes. The vine and its religious use are legally protected in much of South America.

It is not addictive in any way, and has been used to treat addiction both in and out of clinical settings.

In modern clinical trials, it has shown great promise as a treatment for several serious mental health issues, and in case studies, also cancer.

It is not a “drug of abuse”, and as far as I have ever encountered or heard of, it is exclusively used for spiritual and medicinal reasons. Given that it’s so difficult to stand up while journeying with Ayahuasca, and the nearly universal purging, the idea of someone drinking Ayahuasca at a club or rave is an amusing and absurd thought.

It has gained a wide base of support, including prominent medical doctors and psychiatrists, psychologists, scientists, neurologists, anthropologists, and influential artists.

In the case of psilocybe mushrooms, I was unable to find a single case where someone using them for spiritual or medicinal reasons was convicted of a crime. In fact, very few cases exist where someone was convicted of selling or possessing mushrooms alone; almost all cases ending in conviction included hard, dangerous drugs in addition to the mushrooms.

The Canadian Charter of Rights and Freedoms states: Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

So, to put it simply, the perception of the illegality of Ayahuasca is much more of a barrier than the reality of the situation, which is ambiguous.

In the coming years, it may come to pass that someone is charged with a crime in relation to sacred use of Ayahuasca, and I certainly hope that a flood of support from the shamanic community will await that person. As I said, we must all support and stand up for the spiritual freedoms of one another in solidarity, while we still have them.

Footnotes:

1. For extracting and selling DMT on a military base. The judge stated, “…Counsel before me were unable to find any previous sentencing case authorities dealing with the drug DMT, either in a military or a civilian context.”

2. A 19 year old drug dealer in Quebec, who had four Harmaline pills in addition to a significant quantity of amphetamines, marijuana, and cocaine.

3. The original fax can be found on Erowid at: https://www.erowid.org/chemicals/Ayahuasca/images/archive/Ayahuasca_law_undcp_fax1.jpg

4. Some relevant docket numbers that can be searched on CanLii.org: 16675, T-2206-05, 24419-3, 108522-1-D, 108522-2-DA, T-1073-09