On April 14, 2023, the Supreme Court of Canada unanimously upheld the constitutionality of Quebec’s ban on cultivating cannabis for personal use. The ban was part of the rubric of the Quebec government’s cannabis marketing monopoly. The ruling, which stems from the patchwork of provincial and territorial responses to the federal legalization of recreational cannabis in 2018, upheld the ban because it did not conflict with the federal government’s exclusive jurisdiction over the criminal law as provided in section 91 the Constitution Act, 1867.
This case, known as Murray-Hall v. Quebec (Attorney General), is in its essence a classic federalism case. It considered the pith and substance of the impugned legislative provisions by looking at its language and at extrinsic evidence, such as parliamentary debate and the effects of the provisions, to determine if the law falls under a provincial or federal head of power. It also looked at the doctrine of federal paramountcy, in which a provincial law that directly conflicts with a federal law is considered invalid.
The court found that the Quebec legislation had the goal of ensuring compliance with the province’s monopoly on the sale of legal cannabis through the Societé québécoise de cannabis and not of infringing on the federal law, which decriminalized the possession and cultivation of cannabis. The court found that the pith and substance of the provisions was to “ensure the effectiveness of the state monopoly on the sale of cannabis in order to protect the health and security of the public, and of young persons in particular, from the harm caused by this substance.” The court decided that the provisions fall under the provincial jurisdiction over property and civil rights as well as matters of a merely local and private nature, as provided by section 92 of the Constitution Act, 1867 in furtherance of the monopoly. The penalties provided in the provisions were likewise considered constitutional in accordance with section 92 regarding “[t]he Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province” as part of a valid provincial objective.
The court also rejected the appellant’s argument that the ban on and penalties for cultivation of cannabis for personal use was incompatible with the federal Cannabis Act under the doctrine of federal paramountcy. The Cannabis Act did not create a positive right to cultivate up to four cannabis plants because criminal law does not create rights. Though the Quebec government decided to approach the legalization of cannabis in a different manner than that of the federal government or most other provincial governments, “the provincial Act reflects a concern with combating organized crime, just as the federal Act does. The provincial Act’s public health and security objectives … are in harmony with the objectives of the federal Act.”
Michael Chalupovitsch, Law Library of Congress
May 3, 2023
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