Controlled Drugs and Substances Act
 
Definitions and interpretations
Source: Canadian Legal Information Institute (CanLII). Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended
Source: L. A. King, Forensic Chemistry of Substance Misuse: A Guide to Drug Control, RSC Publishing, Cambridge, 2009
  SHORT TITLE  
Short title 1. This Act may be cited as the Controlled Drugs and Substances Act.  
  INTERPRETATION  
Definitions 2. (1) In this Act,  
“adjudicator” “adjudicator” means a person appointed or employed under the Public Service Employment Act who performs the duties and functions of an adjudicator under this Act and the regulations;  
“analogue” “analogue” means a substance that, in relation to a controlled substance, has a substantially similar chemical structure;
The term “analogue” is employed in the following sections:
  • Schedule I section 3: Phenylpiperidines their intermediates, salts, derivatives and analogues and salts of intermediates, derivatives and analogues
  • Schedule I section 14: Phencyclidine (1-(1-Phenylcyclohexyl)piperidine) its salts, derivatives and analogues and salts of derivatives and analogues
  • Schedule I section 16: Fentanyls their salts, derivatives and analogues and salts of derivatives and analogues
  • Schedule I section 17.1: Methylenedioxypyrovalerone (MDPV) its salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues
  • Schedule I section 18: Methamphetamine (N,α-Dimethylbenzeneethanamine) its salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues
  • Schedule I section 19: Amphetamines their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues
On 6 Apr 2010 I received an e-mail from Health Canada in response to my inquiry about Mephedrone, 3-Fluoromethcathione and 4-Fluoromethcathione:
“According to the current information available at the Office of Controlled Substances, Mephedrone is considered CONTROLLED under Item 1 of Schedule III to the CDSA, under the item heading ‘Amphetamines, their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues including:’ as an analogue of Amphetamine and more specifically, 4-Methylmethamphetamine.
“Similarly, the isomers of Fluoromethcathinone are also CONTROLLED under Item 1 of Schedule III to the CDSA.”
4-Methylmethamphetamine
4-Methylmethamphetamine
Mephedrone
Mephedrone
3-Fluoromethcathione
3-Fluoromethcathione
4-Fluoromethcathione
4-Fluoromethcathione

On 13 Sept 2010 a reader kindly shared Health Canada’s opinion in answer to a query about 6-APB:
“According to the current information available at the Office of Controlled Substances, 6-(2-Aminopropyl)benzofuran (6-APB) is considered CONTROLLED under item 1 of Schedule III of the CDSA, on the basis that it is an analogue of 3,4-Methylenedioxyamphetamine (MDA) i.e. that it displays structural similarity to MDA.”
MDA
MDA
6-APB
6-APB

In January 2011 I learned that Health Canada considers these four substances controlled:
  • Methylone; bk-MDMA (3,4-Methylenedioxymethcathinone)
  • Butylone; bk-MBDB (1-(1,3-Benzodioxol-5-yl)-2-(methylamino)butan-1-one)
  • MDAI (2-Amino-5,6-methylenedioxyindane) and
  • CP 55,940 (2-[(1R,2R,5R)-5-Hydroxy-2-(3-hydroxypropyl)cyclohexyl]-5-(2-methyloctan-2-yl)phenol)
Methylone; bk-MDMA
Methylone; bk-MDMA
Butylone; bk-MBDB
Butylone; bk-MBDB
MDAI
MDAI
CP 55,940
CP 55,940
I have not seen any documents setting out their rationale, but I imagine the first two substances are deemed analogues of N-Methyl-3,4-methylenedioxyamphetamine (N,α-Dimethyl-1,3-benzodioxole-5-ethanamine) (a.k.a. MDMA or Ecstasy), listed at Schedule III section 1 subsection (9).
It might be argued the third, MDAI, is an analogue of 3,4-Methylenedioxyamphetamine (α-Methyl-1,3-benzodioxole-5-ethanamine) listed at Schedule III section 1 subsection (5).
CP 55,940 is a synthetic cannabinoid (i.e. a substance that binds to cannabinoid receptors), one of hundreds synthesized in recent decades. These substances, to one degree or another, are structurally or pharmacologically related to the naturally occurring cannabinoids found in Cannabis such as Tetrahydrocannabinol, listed at Schedule II section 1 subsection (7).
The only possible basis for considering CP 55,940 controlled is found at Schedule II section 1 which reads “Cannabis its preparations, derivatives and similar synthetic preparations” (emphasis added). Since it is neither a preparation nor a derivative of Cannabis, Health Canada presumably feels that “similar synthetic preparations” includes CP 55,940.

These examples reveal the Act’s highly subjective definition of “analogue” to be a remarkably elastic and adaptable device. Highly useful from a regulatory standpoint—dangerously arbitrary when embedded in criminal law. Particularly when, as is Health Canada’s custom, their “interpretations” are never made public.
When employed by a chemist, analogue is a handy term, used routinely and casually to highlight a common structural motif across a group of substances. It signifies a relationship between given substances; it does not define which substances are so related and which are not. Ask a chemist to list, for instance, the analogues of penicillin; I’ll wager all you’ll get back is a bewildered silence.
The list of every substance they have considered and their conclusion as to whether it is controlled or not can be viewed here. I want to state clearly and pointedly: this is not law—it is Health Canada’s opinion and, as far as I know, untested in the courts. I’ve posted it because I believe it best that everyone have this information. Please do not ask me to interpret this data; please ask Health Canada instead.

Using the Access to Information Act (ATI) I’ve tried to shine a light inside Health Canada’s “Skull and Bones” crypto-culture of concealment. These may help illustrate how things work, or not, at Health Canada.

I warn you though, public servants signal (I hesitate to say “communicate”) using an arcane, often impenetrable code. Remarkably, other public servants are paid to interpret this code, and have been so proactive and transparent as to make it available even to the public: Treasury Board Newspeak Dictionary.

  • On 27 June 2012 I asked about the Order Amending Schedule III to the Controlled Drugs and Substances Act (BZP and TFMPP) with ATI A-2012-00512. The interim response weighs in at over 2400 pages. There may be more I’m told.

  • On 27 June 2012 I asked about the status of 3,4-Methylenedioxypyrovalerone or MDPV with ATI A-2012-00509 (23 MB, 83 pages). Further, in ATI A-2012-00508 (37 MB, 737 pages), I asked for everything that prompted Health Canada to adjust their position on MDPV. By 180 degrees.

    As you may recall, MDPV gained undeserved notoriety as the drug of choice among face-eating cannibals. Absolute drivel of course. Still, even though Health Canada signed off on MDPV years ago, proclaiming it legal as sea salt, here was an Opportunity for Political Grandstanding. Er, that is, Safeguarding our Children.

    Following what appears to be standard procedure, when the media take notice of any drug the first priority at Health Canada is naturally of the CYA sort, à la the Minister was unaware of the issue, if any, until quite recently and is thus held blameless; the burden of deflecting responsibility weighs heavy on the Ministry. The PMO, whence every Minister’s string doth spring, will confirm this is official policy… though I haven’t actually asked them yet.

    Next, consultants are hastily hired (i.e. Canada’s Economic Action Plan for former public servants earning over $250K) to conjure up support for the Minister’s decision… as soon as she is made aware of it.

    Spending millions is necessary, of course. Evidence must be picked with care—only the ripest cherries mind you—then burnished for weeks with whole cloth. Much weight is given to headlines and accounts in the popular press, escaping the bias for which peer-reviewed journals are famous. On occasion, guidance has been sought from YouTube. Tragically, tasseography has largely been discontinued, the victim of departmental belt-tightening.

    Still, since Health Canada is not in the habit of citing their sources one would be forgiven for dismissing this process as an elaborate charade designed more to protect the Minister and her mandarins than the public.

    But, c’mon. Give yourself a shake! What kind of secretive, controlling, manipulative, crude, autocratic, vicious, unprincipled, untrustworthy, paranoid government would do that?


    Below, one of the vexing issues borne of a policy vacuum and the crushing weight of analysis demanded when crafting criminal law without a dartboard. The scent of idle indifference all but wafts from the page, as though the consequences where on a par with choosing the right sunglasses. (See A-2012-00508 above, p. 702. Emphasis added):

    “So, an interesting issue has come up in progressing our analysis of MDPV and that is into what Schedule we actually want to propose placing it in the forthcoming NOI [Notice of Intent]?

    ”If we follow past practice of using structural similarity as the main consideration, MDPV should really go into Schedule IV as that is where pyrovalerone is listed.

    ”However, we know that simple possession is not prohibited for Schedule IV substances and given the apparent dangers associated with the use and abuse of MDPV, it would seem that Schedule III is more appropriate and so currently, this is what the NOI suggests.

    ”Given the extensive references to cocaine and amphetamine-like effects in the media and in statements from health officials however, another option would be to propose that MDPV be added to Schedule I on the grounds that the offences involving it are worthy of more serious penalties akin to those associated with Schedule I.

    ”While I am not suggesting that MDPV is an amphetamine, the comparison is interesting because once the drug portion of the Safe Streets and Communities Act (Bill C-10) is implemented, all of the amphetamines in Item 1 of Schedule III will be moved to Schedule I.

    ”Do you have any particular views on this? While we can always change our plans after the NOI, it would be my preference to have the NOI state where we intend to put MDPV on a permanent basis.”
  • On 4 May 2011 I asked about their Proposal regarding the regulation of Tapentadol with ATI A-2011-00210. Their 1757 page, 80 MB response, contains vast amounts of duplication (endlessly forwarded e-mails, etc) and a good bit of “severing”; that’s ATI-speak for blacked out.

    Sadly, they took so long to respond they broke the law (ATI)—the technical term is “deemed refusal.” They also shared my request with a third party, i.e. they disclosed personal information about me and my request to someone else. That’s also against the law, two in fact—ATI and the Privacy Act.

    Those are not my opinions—those are the findings of the Information Commissioner’s report 3211-00465, and of the Privacy Commissioner’s report 7100-012446.

    All this from “the most transparant government in Canadian History” claims 10th dan Orwellian Tony Clement.

  • On 24 Oct 2010 I asked about the status of Mephedrone and how, exactly, they arrived at their position it is a controlled substance, with ATI A-2010-00804.

    Their “status report” claims mephedrone is controlled in the US, citing the DEA’s Microgram Journal. In fact, Microgram makes no such claim and barely a mention of Mephedrone, merely the observation that a case could be made under the analogue provisions of US drug law. Only years later, on 9 July 2012, was Mephedrone added to the CSA.

    It’s not immediately apparent but the status report was not written by Health Canada. Instead, they paid an outside consultant to make the call. Though severed from some pages (a further violation of ATI), his name does appear on others.

    Consider that for a moment. The power to “read a substance into the CDSA” has been delegated from Parliament to the Minister of Health, who has in turn punted it right out of the public service. The CDSA which, de facto, is part of the Criminal Code of Canada.

    As a technique for blurring responsibility this approach has merit; it allows Health Canada to feign objectivity. The fact that the paid consultant is a former Health Canada employee does not necessarily preclude an objective analysis, does it?

  • On 16 June 2005 I asked about the status of Ketamine with ATI A-2005-00382

“analyst” “analyst” means a person who is designated as an analyst under section 44;
“Attorney General” “Attorney General” means
  1. (a) the Attorney General of Canada, and includes their lawful deputy, or
  2. (b) with respect to proceedings commenced at the instance of the government of a province and conducted by or on behalf of that government, the Attorney General of that province, and includes their lawful deputy;
“controlled substance” “controlled substance” means a substance included in Schedule I, II, III, IV or V;
“derivative” “It is now usually accepted amongst forensic chemists that compound A is a derivative of compound B only if B can be converted to A in a single chemical reaction, even if that is only achievable in a theoretical sense.”
“Derivative” is employed but not defined in the CDSA. The definition above is from King, pp 20–21.
“designated substance offence” “designated substance offence” means
  1. (a) an offence under Part I, except subsection 4(1), or
  2. (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);
“inspector” “inspector” means a person who is designated as an inspector under section 30;
“isomer”
The term “isomer,” not defined in the Act, is employed in the following sections: The Oxford Dictionaries define “isomer” as “Each of two or more compounds with the same formula but a different arrangement of atoms in the molecule and different properties.”

A good analogy can be found in language. With words and letters standing for molecules and atoms, all of these are isomers: part, trap, rapt, tarp, and every other arrangement of those four letters whether found in a dictionary or not.

In chemical terms, what the law actually says makes no sense whatsoever, when even a small molecule like amphetamine has hundreds of known isomers (i.e. ones synthesized and reported in the literature) and thousands more potential isomers.
“judge” “judge” means a judge as defined in section 552 of the Criminal Code or a judge of a superior court of criminal jurisdiction;
“justice” “justice” has the same meaning as in section 2 of the Criminal Code;
“Minister” “Minister” means the Minister of Health;
“offence-related property” “offence-related property” means, with the exception of a controlled substance, any property, within or outside Canada,
  1. (a) by means of or in respect of which a designated substance offence is committed,
  2. (b) that is used in any manner in connection with the commission of a designated substance offence, or
  3. (c) that is intended for use for the purpose of committing a designated substance offence;
“possession” “possession” means possession within the meaning of subsection 4(3) of the Criminal Code;
“practitioner” “practitioner” means a person who is registered and entitled under the laws of a province to practise in that province the profession of medicine, dentistry or veterinary medicine, and includes any other person or class of persons prescribed as a practitioner;
“precursor” “precursor” means a substance included in Schedule VI;
“prescribed” “prescribed” means prescribed by the regulations;
“produce” “produce” means, in respect of a substance included in any of Schedule I to IV, to obtain the substance by any method or process including
  1. (a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or
  2. (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained,
and includes offer to produce;
“provide” “provide” means to give, transfer or otherwise make available in any manner, whether directly or indirectly and whether or not for consideration;
“salt”
“Salt” is liberally employed, but not defined, in the Act.
“sell” “sell” includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration;
“traffic” “traffic” means, in respect of a substance included in any of Schedules I to IV,
  1. (a) to sell, administer, give, transfer, transport, send or deliver the substance,
  2. (b) to sell an authorization to obtain the substance, or
  3. (c) to offer to do anything mentioned in paragraph (a) or (b),
otherwise than under the authority of the regulations.
Interpretation 2. (2) For the purposes of this Act,
  1. (a) a reference to a controlled substance includes a reference to any substance that contains a controlled substance; and
  2. (b) a reference to a controlled substance includes a reference to
    1. (i) all synthetic and natural forms of the substance, and
    2. (ii) any thing that contains or has on it a controlled substance and that is used or intended or designed for use
      1. (A) in producing the substance, or
      2. (B) in introducing the substance into a human body.
Interpretation 2. (3) For the purposes of this Act, where a substance is expressly named in any of Schedule I to VI, it shall be deemed not to be included in any other of those Schedules.
Interpretation 3. (1) Every power or duty imposed under this Act that may be exercised or performed in respect of an offence under this Act may be exercised or performed in respect of a conspiracy, or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence under this Act.
Interpretation 3. (2) For the purposes of sections 16 and 20, a reference to a person who is or was convicted of a designated substance offence includes a reference to an offender who is discharged under section 730 of the Criminal Code.
Interpretation 5. (5) For the purposes of applying subsection (3) or (4) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.
Interpretation 5. (6) For the purposes of subsection (4) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance.
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