Vol. 139, No. 17 — August 24, 2005

Registration
SOR/2005-235 August 10, 2005

CONTROLLED DRUGS AND SUBSTANCES ACT

Order Amending Schedules I and III to the Controlled Drugs and Substances Act (Methamphetamine)

P.C. 2005-1367 August 10, 2005

Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to section 60 of the Controlled Drugs and Substances Act (see footnote a), deeming that it is necessary in the public interest, hereby makes the annexed Order Amending Schedules I and III to the Controlled Drugs and Substances Act (Methamphetamine).

ORDER AMENDING SCHEDULES I AND III TO THE CONTROLLED DRUGS AND SUBSTANCES ACT (METHAMPHETAMINE)

AMENDMENTS

1. Schedule I to the Controlled Drugs and Substances Act (see footnote 1) is amended by adding the following after item 17:

18. Methamphetamine (N,α-dimethylbenzeneethanamine)

2. (1) Subitem 1(2) of Schedule III to the Act is repealed.

(2) Item 1 of Schedule III to the Act is amended by adding the following after subitem (22):

but not including

(23) Methamphetamine (N,α-dimethylbenzeneethanamine)

COMING INTO FORCE

3. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The purpose of this regulatory initiative is to move methamphetamine from Schedule III to the Controlled Drugs and Substances Act (CDSA) to item 18 of Schedule I to the CDSA. The reclassification of methamphetamine to Schedule I is necessary to increase the penalties associated with methamphetamine offences and bring them in line with the harms caused by methamphetamine production, trafficking, and use. This will equate the penalties associated with methamphetamine offences with those of cocaine and facilitate effective denunciation of related crimes. The health risk of methamphetamine use is substantial in itself; however, methamphetamine affects more than just the health and safety of the user. Methamphetamine production presents a high level of risk to communities and creates a toxic environment where people live. An exemption from pre-publication in the Canada Gazette, Part I was requested in light of the significant dangers to the health and safety of Canadians and the environment.

In determining if and where a substance should be listed in the schedules to the CDSA, Health Canada considers several factors including international requirements, the dependence potential and likelihood of abuse/misuse of the substance, the extent of its abuse/misuse in Canada, the danger it represents to the safety of the public, and the usefulness of the substance as a therapeutic agent. Using these criteria, it has been determined that the movement of methamphetamine from Schedule III to the CDSA to Schedule I is warranted and appropriate.

International Requirements and Trends in Control/Scheduling

Methamphetamine was considered by the United Nations (UN) to constitute a substantial risk to public health and to have little to moderate therapeutic usefulness. It is listed in Schedule II of the UN Convention on Psychotropic Substances, 1971 (71 Convention). Most of the substances from Schedule II of the 71 Convention are listed in Schedule III to the CDSA; one such exception is phencyclidine (PCP), which is listed in Schedule I to the CDSA. At the time of scheduling PCP, the risk to the health and safety of Canadians was deemed to be greater than other substances in Schedule II to the 71 Convention; therefore, it was listed in Schedule I to the CDSA where it would be subject to greater penalties. There were no similar health and safety concerns with methamphetamine until recently. Since 1999, the risk to public health and safety presented by methamphetamine has increased dramatically within Canada; therefore, it was deemed necessary to assess the current scheduling and determine if the existing penalties are still appropriate.

In the United States (US) methamphetamine is listed in Schedule II of the Controlled Substances Act along with other stimulants, such as cocaine. In May of 2003, the New Zealand government reclassified methamphetamine to Class "A", the most serious classification, as part of comprehensive strategy in their newly created Methamphetamine Action Plan.

Dependence Potential

Although there is no evidence to suggest that a user will become addicted after only one episode, methamphetamine can produce a powerful psychological dependence. Abrupt discontinuance from chronic use produces withdrawal symptoms similar to but more intense than the symptoms induced by cocaine withdrawal, and is characterized by apathy, depression, lethargy, anxiety, sleep disturbances, and intense cravings. Myalgias, abdominal pain, voracious appetite, and a profound depression with suicidal tendencies may complicate the immediate post-withdrawal period and peak in 2 to 3 days. To relieve these symptoms, the user will frequently return to use more methamphetamine, often at increasing doses due to the tolerance which has readily developed, thus establishing a use-withdrawal-use cycle.

Likelihood of Abuse/Misuse

The abuse liability of methamphetamine is considered to be extremely high. It can produce intense euphoria that is considered by experienced users to be greater than dextroamphetamine. Because the drug is highly soluble in water, it can be administered in large amounts by injection. The smoked form of methamphetamine is called "crystal meth". Smoking and intravenous injection are very common modes of administration that produce a rapid and intense euphoria that lead to a "rush" or "flash" that is extremely pleasurable but lasts for only a few minutes. Snorting or taking the drug orally produces euphoria (or the 'high') but not the rush. The effects of methamphetamine can last for 12 hours or more in comparison to cocaine, which lasts for one hour. The low price and long lasting, intense effects of methamphetamine increase its attractiveness as a drug of abuse.

Extent of Abuse/Misuse in Canada

Methamphetamine can be produced domestically. Its low cost and ease of synthesis, along with a variety of possible administration routes, such as oral, intravenous, snorting or inhaling, make methamphetamine an attractive drug of abuse that is readily accessible in comparison to other illegal substances. Its popularity as a drug of abuse is increasing at an alarming rate. The number of seized methamphetamine samples analysed by Health Canada has increased seven fold since 1999, tripled since 2000, and doubled since 2002. Thirty-nine clandestine labs were dismantled by the Royal Canadian Mounted Police (RCMP) in 2003 versus two in 1998. Greater numbers of clandestine lab seizures in Canada indicate that the industry is expanding. Such expansion increases supply, lowers prices further and leads to a larger number of users. In 2004, Drug Analysis Services reported methamphetamine as the 2nd most prevalent hard drug of abuse, behind cocaine, according to the number of exhibits analysed. According to the Centre for Addiction and Mental Health Ontario Student Drug Use Survey, 2003, methamphetamine has been ranked the fourth most frequently used illegal substance (after cannabis, cocaine, and MDMA, or ecstasy) among students in Grades 7-12.

Methamphetamine is commonly referred to as meth, ice, yaba, crystal, chalk, glass, and speed. Traditionally associated with white, male, blue-collar workers, methamphetamine is now reportedly being used by diverse groups. Methamphetamine appeals to people who wish to stay awake for extended periods of time and maintain their performance ability, for example, long-distance drivers and students. Use is increasing among men who have sex with men, making this population more vulnerable to contracting and spreading sexually transmitted diseases, especially HIV/AIDS. Methamphetamine can also be injected, which further increases the risk of HIV/AIDS and other blood borne diseases. Young adults who attend "raves" or private clubs also are increasingly using methamphetamine, oftentimes in the belief that they are consuming MDMA (ecstacy). Rates of use are also high among the homeless and street youth. Increasing use of methamphetamine is reported among male and female commercial sex workers who also trade sex for drugs and among members of motorcycle gangs.

Danger to Public Health and Safety

Health Risk

Methamphetamine can produce a powerful psychological dependence. Its use is associated with episodes of violent behaviour, paranoia, anxiety, confusion, and insomnia. Long term use has also been associated with psychotic behaviour including paranoia, auditory hallucinations, mood disturbances, and delusions. The paranoia may result in homicidal or suicidal thoughts. Psychotic symptoms may persist for months after the drug is discontinued. Methamphetamine can also cause a variety of medical complications including weight loss and cardiovascular problems. The risk of short-term or possible neurological damage is also a concern.

Environmental Impact

Methamphetamine is produced in clandestine labs that range in size from the small lab in an apartment or van which can make 30 g at once to superlabs which are capable of producing multiple kilos. Every kilogram of methamphetamine produces, on average, six kilograms of hazardous waste. Methamphetamine production involves chemicals that are poisonous, corrosive, flammable, explosive, or emit toxic vapours, and can cause health and safety problems at the production site and within the surrounding area. The toxic by products of methamphetamine production are often improperly disposed of outdoors in rivers, streams, and other dump areas, which cause serious environmental damage, endangering children and others who live, eat, play, or walk at or near the site. Normal cleaning may not remove all the methamphetamine or some of the chemicals used to produce it; dangerous by products generated from the ingredients pose environmental hazards that can persist in the soil and groundwater for years.

Community Impact

Methamphetamine abuse also has an impact on communities: families, law enforcement, paramedics, emergency room staff, and other front line workers dealing with users. Chronic use can result in economic hardship and family breakdown. Individuals may lose employment due to their drug use and stop being contributing members of society. Parents who are dependent on methamphetamine typically become careless, irritable and violent, often losing their ability to nurture their children. Under these conditions, children are more likely to be physically and sexually abused by members of their own family and/or other drug-using acquaintances.

It is not uncommon for fires to erupt as a result of improper storage or mishandling of chemicals and solvents used in the clandestine production of methamphetamine. A significant percentage of methamphetamine labs are discovered as a result of fires or explosions. First responders, including medical, public health, law enforcement, firefighters, child protective services and environmental clean up personnel are particularly at risk of acute injury from chemical exposure, fire, explosion and so-called "booby-traps" when called to methamphetamine labs or dumpsites.

Legitimate Use in Canada

There is no approved medical use for methamphetamine within Canada. Movement from Schedule III to Schedule I will have no economic impact on the general public, industry, or international trade.

Judicial Concern:

In 1997, Canada enacted the CDSA, which allowed for the control of the narcotics, controlled drugs, restricted drugs, targeted substances, and precursor chemicals included in the schedules to the CDSA. As mentioned above, methamphetamine was placed in Schedule III to the CDSA, which contains offences for possession, trafficking and possession for the purpose of trafficking, importation, exportation, and possession for the purpose of importation or exportation, and production. The following table outlines the current maximum penalties for offences associated with methamphetamine as a Schedule III substance and the maximum penalties proposed by this amendment (Schedule I):

Schedule	Possession	Trafficking / Possession for the purpose thereof	Importing / Exporting / Possession for the purpose thereof	Production
I	indictable offence: 7 years summary conviction: first offence: $1,000 or 6 months or both subsequent offence: $2,000 or 1 year or both	indictable offence: life no summary conviction	indictable offence: life no summary conviction	indictable offence: life no summary conviction
III	indictable offence: 3 years summary conviction: first offence: $1,000 or 6 months or both Subsequent offence: $2,000 or 1 year or both	indictable offence: 10 years summary conviction: 18 months	indictable offence: 10 years summary conviction: 18 months	indictable offence: 10 years summary conviction: 18 months

Methamphetamine is now gaining in popularity with users, traffickers, and producers. Police officers, prosecutors, and members of the judiciary have expressed concerns over the classification of methamphetamine in Schedule III to the CDSA. They argue that the maximum penalty of ten years assigned to such serious crimes as import/export, production, and trafficking are not commensurate with the health, social, and economic harm caused by methamphetamine and, to a lesser extent, other potent Schedule III drugs such as MDMA (ecstasy), GHB, etc. In comparison, similar offences for Schedule I drugs (opioids, cocaine and PCP) or Schedule II drugs (cannabis) carry a penalty of life imprisonment. While the courts are fully aware of the serious harms associated with methamphetamine, they generally impose lower penalties for serious offences, almost universally invoking Parliament's decision to classify this substance in Schedule III. Justice Arnold of the British Columbia Provincial Court in R. v. Khan best summed it up:

"I am aware of the fact that parliament has seen fit to impose a 10-year maximum for this offence as opposed to life, which exists for heroin and cocaine. So parliament at this point, in any event, rates this offence as being less dangerous than heroin and cocaine. I suppose if they read what I read, they might change their mind."

Political Concern:

Concern that harsher penalties are required for methamphetamine was voiced at: the Methamphetamine: An Environmental Scan workshop held in Alberta in September 2004; the Western Canadian Summit on Methamphetamine in November 2004 and more recently at the Meeting of Western Ministers of Health, Justice and Public Safety. Several constituencies, including provincial attorneys general, Ministers of Justice and Health, and various municipalities have written to the federal Ministers of Justice and Health to request action to move methamphetamine from Schedule III to Schedule I to the CDSA to have access to higher penalties for illicit activities. Mr. Randy Kemp (CPC, Pitt Meadows-Maple Ridge-Mission) announced in the House of Commons on June 22 that the conservative party is working on a bill to move crystal meth from Schedule III to Schedule I. The proposed bill has been sent to Legislative Counsel to draft in its proper form and is expected to be brought forward in the House in the fall.

Rationale for Immediate Action:

Measures have been put in place to control methamphetamine production via the Precursor Control Regulations (PCR). These measures have led to a decrease in the rate of diversion of precursors to the illicit market and is one part of a comprehensive approach to the abuse of synthetic drugs such as methamphetamine. An increase in maximum penalties is required as an additional measure to decrease methamphetamine production, trafficking, and use, as the extent of abuse of methamphetamine is increasing at an alarming rate. There is a strong public outcry for an increase in the maximum penalties associated with methamphetamine offences, particularly from smaller communities that have been devastated by the effects of methamphetamine production and abuse on their lives. The level of harm presented by methamphetamine production, trafficking, and use to individuals and to communities, as described above, in addition to the urgent public and political demand for higher penalties calls for immediate government intervention.

According to the Canadian Sentencing Commission, 1987, criminal sanctions have been found to carry some deterrent and incapacitative effects. Higher penalties for methamphetamine offences may act as a deterrent for the trafficking and use of a substance that has been shown to have serious health concerns, and protects communities from possible explosions and toxic contamination of the environment that is caused by the presence of clandestine labs.

Alternatives

Alternative 1:  Reschedule methamphetamine and selected Schedule III substances of similar harm to Schedule I to the CDSA.

This option increases the maximum penalty for serious offences from 10 years to life imprisonment, bringing maximum penalties for serious offences more in-line with the harms associated with methamphetamine while maintaining the current relativity between methamphetamine and other dangerous substances in Schedule III in addition to the substances listed in Schedule I of the 1971 Convention. Grouping substances of similar harm together in one schedule would facilitate future scheduling decisions in terms of administrative convenience, timeliness, and costs.

Due to the urgency surrounding the scheduling of methamphetamine and the time and resources required to implement this option, it was decided to reschedule methamphetamine with the intent of considering other Schedule III substances with similar harmful profiles for rescheduling at a later date.

Alternative 2:  Increase penalties in the CDSA (to a maximum of 14 years or life imprisonment) for serious offences related to Schedule III drugs of similar harms.

This option achieves the goal of bringing maximum penalties in line with the harms caused by methamphetamine and similarly dangerous substances in Schedule III and maintains the option of proceeding by summary conviction for less significant offences of import, export, trafficking, possession for the purpose thereof and production.

This option was not considered acceptable as it: requires a statutory amendment which requires parliamentary approval; would significantly delay increasing penalties for offences related to methamphetamine; and, may increase penalties for other Schedule III substances which may not be of comparable harm. Maintaining methamphetamine in Schedule III would still likely be perceived by the judiciary as a lesser offence than Schedule I offences, particularly if the maximum penalty is less than life imprisonment. In addition, if life imprisonment is chosen as a maximum penalty, the graded control approach foreseen in the CDSA is partially lost.

Alternative 3:  Create a new regime of offences and penalties for those substances in Schedule III that present the greatest harm.

With this option, the offences and penalties could be tailored to the harms caused by methamphetamine and similar substances. It is consistent with the graded level of controls foreseen in CDSA and maintains the summary conviction provisions currently assigned to Schedule III.

It was decided not to proceed with this option because it is a statutory amendment which requires parliamentary approval, which is a lengthy process. It would require a complete review of the offences, penalties and Schedules under the CDSA. It would still likely be perceived by the judiciary as a lesser offence than Schedule I offences and unless the new schedule is a very close match to an existing schedule in the international classification system, the initial selection of substances and the analysis required for future decisions would likely be onerous, cumbersome, and lengthy. There is sufficient latitude within the current provisions and schedules of CDSA to deal with methamphetamine and related issues without developing a new regime of offences and penalties.

Benefits and Costs

Risk and Benefit Analysis of Moving Methamphetamine from Schedule III to Schedule I to the CDSA

item	Risk/Benefit Area
	Health and Safety Risk (Science)	Legal obligations (Policy)
Risks	Little to no risk.	Increase in the prison population and the length of incarceration of inmates. May place a burden on law enforcement resources. Creates further discrepancies in scheduling between the international conventions and the CDSA.
Assess Risks	Impact low / Likelihood low	Impact medium / Likelihood medium
Benefits	Deterrent for the production, trafficking and use of a substance which has been shown to have serious health concerns. Protects neighbourhoods from explosions and toxic contamination of the environment that is caused by clan labs.	Offences and penalties more in line with the harm caused to public health, communities and the environment. Accomplished through Order in Council and does not require parliamentary approval. Eliminates option of summary conviction to provide further deterrent. Addresses concern raised by Western Ministers of Health, Justice, and Public Safety, by police and the courts, and at the Western Canadian Summit on Methamphetamine. Addresses concerns raised by police and the courts. No administrative burden to Health Canada - only penalties affected.
Net Assessment Risk vs. Benefits	LOW	MEDIUM
Overall Assessment of Risk	IMPACT LOW / LIKELIHOOD LOW

item	Risk/Benefit Area
	Health Canada Value: Caring for the people of Canada (Communications)	Industry (Economic)
Risks	Possible imprisonment of users for longer periods of time, who may benefit more from educational, treatment and rehabilitation programs.	No risk. There is no approved medical use for methamphetamine within Canada.
Assess Risks	Impact low / Likelihood low	Impact low / Likelihood low
Benefits	Provides a further deterrent to potential users and traffickers. Removes current traffickers and producers from the public and from attracting new users, for a longer period of time.	Little to no benefit to industry.
Net Assessment Risk vs. Benefits	LOW	LOW
Overall Assessment of Risk	IMPACT LOW / LIKELIHOOD LOW

Factors to Mitigate Risk:

• Movement from Schedule III to Schedule I to the CDSA increases the penalty for an indictable possession offence from a maximum of 3 years to a maximum of 7 years and may cause an increase in both the prison population and the length of incarceration for inmates. This may be seen as onerous for methamphetamine users who may benefit more from educational, treatment, and rehabilitation programs. However, although it would be possible for a judge to issue the maximum sentence of 7 years in prison for simple possession, judges are able to use their discretion when sentencing. In the case of cocaine and heroin, first offenders caught with small amounts are not generally incarcerated and may be incarcerated for a number of months upon repeated use. No significant difference has been found in the sentencing ranges for possession offences in relation to methamphetamine or Schedule I substances. The situation changes when the offence involves trafficking.
  
  Additionally, higher penalties are just one part of a broader strategy to tackle methamphetamine production, trafficking and use. For example, Health Canada through the Drug Strategy Community Initiatives Fund (CIF), under Canada's Drug Strategy, supports the development of community-based prevention or harm reduction solutions to problematic substance use, as well as, provides information to youth, teachers and parents to raise their awareness of substances such as methamphetamine on its youth Web site, www.drugwise. gc.ca.
  
  
• This option introduces new discrepancies within the CDSA classification system (in comparison with other phenylethylamine derivatives and other substances in Schedule III) and with the international classification system (as compared with substances listed in Schedule II of the 1971 Convention). Such discrepancies could increase the complexity of future scheduling decisions which may increase the costs and impede the timeliness of these decisions. Consideration will be given to moving substances with similar levels of abuse and related harms from Schedule III to Schedule I to the CDSA in the future.

Consultation

This is a regulatory initiative to increase the penalties associated with the offences pertaining to methamphetamine under the CDSA and is not expected to have an economic impact on the general public, industry, or international trade. The issue is increasingly gaining the attention of the Western Ministers and the media, since the illicit production and use of methamphetamine puts communities, individuals and the environment at serious risk. A timely solution is required.

Compliance and Enforcement

This amendment will increase the maximum penalties for offences associated with methamphetamine. Under Schedule I, the maximum penalty for possession is 7 years for an indictable offence. The maximum penalty for a first offence on summary conviction is $1,000 or 6 months in prison or both, and $2,000 or 1 year in prison or both for subsequent offences. The maximum penalty for production, trafficking and possession for the purpose of trafficking, importation, exportation and possession for the purpose thereof is life, with no option of summary conviction. It will have no impact on the regulatory controls for methamphetamine, and therefore will have no impact on the existing compliance and enforcement strategy for controlled substances.

Legislative interventions, while important in containing the availability of dangerous drugs and in deterring their production, are but one dimension of an overall strategy to tackle the health, social and economic harm associated with these substances. For optimum impact, such a strategy should incorporate legislative and enforcement measures with complementary initiatives like public education, prevention, treatment, and harm reduction, be predicated on evidence-based best practices, integrated across service providers and levels of governments and endowed with sufficient funds to sustain efforts over the long haul. Public awareness will be a key factor in the value of higher penalties as a deterrent.

Contact

Erin Kingdom
Drug Strategy and Controlled Substances Programme
Healthy Environments and Consumer Safety Branch
Address Locator: 3503D
Ottawa, Ontario
K1A 1B9
Telephone: (613) 948-8948
FAX: (613) 946-4224

Footnote a

S.C. 1996, c. 19

Footnote 1

S.C. 1996, c. 19

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