In response to federal legislation legalizing cannabis, the Québec government passed laws banning the possession of cannabis plants and the cultivation of cannabis for personal use. However, this prohibition was challenged on federalism grounds and the Québec Superior Court recently ruled that they are unconstitutional. The Court held that prohibiting the cultivation of cannabis would repress an activity that is now lawful and would thus be an improper exercise of the federal criminal law power. The decision is an important reminder that provinces cannot easily circumvent the new reality of legalized cannabis.
What you need to know
- Provinces cannot counteract the federal legalization of cannabis. The Court explained that a provincial attempt to regulate cannabis cannot undo what the federal legislation expressly permits. The Attorney General of Québec (AGQ) argued that its new laws were a valid exercise of the provincial power to legislate over health and safety. The Court rejected this argument, holding that the provincial law was an attempt to counteract the effects of federal legislation.
- Provincial regulation of cannabis must be tied to the provincial jurisdiction over health and safety. The Court’s ruling does not diminish the breadth of the province’s power to legislate on matters of health and safety. Indeed, the Court stated that provinces have jurisdiction over the production, distribution and use of cannabis. However, that power is not broad enough to prohibit cannabis cultivation outright.
- Québec decision may be appealed. Because the Court’s ruling addresses important issues of constitutional law, including the scope of the federal criminal law power and the provincial jurisdiction over health and safety, the AGQ may appeal the decision. The AGQ has not decided whether it will file an appeal, but the AGQ’s decision is expected sometime in October (or earlier). There may therefore be another chapter in Québec’s attempts to ban home cultivation of cannabis.
- Similar Manitoba laws may be susceptible to challenge. When the federal government legalized cannabis, Manitoba also enacted similar laws that ban growing and possessing cannabis plants at home. If the Québec decision survives appeals, Manitoba’s laws may be susceptible to constitutional challenge.
In June 2018, Parliament enacted legislation legalizing the consumption and personal cultivation of cannabis for recreational use in Canada. In particular, the federal law permits individuals to possess up to four cannabis plants and to grow up to four cannabis plants in their homes. The federal legislation came into force on October 17, 2018.
In anticipation of legalization, the Québec legislature passed legislation to regulate the possession, cultivation, use, transportation, storage and sale of cannabis, in June 2018. Two provisions in the Québec law completely prohibit the possession of cannabis plants and the cultivation of cannabis for “personal use”.1
An individual in Québec challenged the constitutionality of those provisions. He argued that their dominant purpose was to prohibit the personal cultivation of cannabis on moral grounds, and that the Québec legislature did not have the constitutional jurisdiction to enact this type of prohibition. The AGQ argued that the purpose of the impugned law was to protect the health and safety of the population by controlling the quality of and access to cannabis.
The Court held that the Québec law was unconstitutional. It held that the impugned provisions are not a valid exercise of the provincial jurisdiction over health and safety. Rather, it found they are an improper exercise of the federal power over criminal law.
To determine the purpose (or “pith and substance”) of the laws, the Court examined the text of the laws at issue, the effect of the laws and the legislative history. The Court concluded that the purpose of the laws was to prohibit the cultivation of cannabis and not, as the AGQ submitted, to supervise an activity that Parliament had decriminalized. As a result, the Court held that the laws were an invalid exercise of the federal criminal law power.
The AGQ also attempted to justify the laws based on the double aspect doctrine. When a statute deals with a subject that has both a provincial and federal aspect, the double aspect doctrine permits the concurrent application of both federal and provincial legislation. However, the Court rejected the AGQ’s argument that the impugned laws were anything other than a criminal prohibition on cannabis.
Although the AGQ asked the Court to temporarily suspend the effect of the declaration of constitutional invalidity, the Court declared the impugned provisions invalid effective immediately.
The Court viewed the impugned laws through the federal criminal law power and through cannabis’ history as a controlled substance. Using this analytical lens sends a strong message to provinces that they cannot interfere with the legalization of cannabis (and in the criminal sphere more generally) by trying to strengthen, supplement or replace a criminal law that they consider to be deficient. Indeed, the speeches in National Assembly of Québec which spoke to the morality of cannabis use underscored the Court’s conclusion that the laws were criminal in nature. As provincial governments continue to regulate legalized cannabis, any attempts to do so on the grounds of public safety or morality may be susceptible to challenge.
1 Although it is not clear from the legislation, this prohibition appears to include cultivation for both recreational and medical uses. In 2016, the Federal Court struck down federal laws that prohibited the personal cultivation of cannabis for medical use (Allard v. Canada, 2016 FC 236). The Court held that the ban violated section 7 of the Charter of Rights of Freedoms and was therefore unconstitutional.
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