Supreme Court of Canada: In an appeal against the order of Quebec Court of Appeal, wherein Sections 5 and 10 of the Cannabis Regulation Act, 2018, were held constitutionally valid, the Nine-Judge Bench of Richard Wagner C.J., Andromache Karakatsanis, Suzanne Côté, Russell Brown, Malcolm Rowe, Sheilah L. Martin, Nicholas Kasirer, Mahmud Jamal and Michelle O’Bonsawin, J.J., dismissed the appeal and upheld the validity of the Sections 5 and 10 of the Cannabis Regulation Act, 2018 on grounds that the Quebec legislature had jurisdiction to prohibit the possession and cultivation of cannabis for personal purposes.
Background
In June 2018, the Canadian Parliament passed the Cannabis Act (‘the federal Act’), which decriminalised the recreational use of cannabis. The Act prohibits the possession of cannabis plants and the cultivation of such plants for personal purposes, but it exempts the possession and cultivation of no more than four plants from these prohibitions. At the same time, the Quebec legislature introduced its own scheme to regulate cannabis by passing a bill that, among other things, created the Société québécoise du cannabis (‘SQDC’), which has a monopoly on the sale of cannabis in Quebec. The Cannabis Regulation Act, 2018 (“the Provincial Act”), Sections 5 and 10 were also enacted which completely prohibited the possession of cannabis plants and the cultivation of such plants for personal purposes in house, which accompanied imposition of fines.
In October 2018, the appellant brought an action in the Superior Court challenging the validity of Sections 5 and 10 (‘impugned provisions’) of the Provincial Act. The Superior Court declared the impugned provisions of the Provincial Act to be constitutionally invalid. Later, the Quebec Court of Appeal had set aside the trial judgment and affirmed the constitutional validity of sections 5 and 10 on the grounds that they were within the powers conferred on the provinces by sections 92(13) and (16) of the Constitution Act, 1867 (‘the Constitution’). It also found that the impugned provisions were operative under the doctrine of federal paramountcy. Aggrieved by the order of the Court of Appeal, the appellant approached the Court.
Issues
1. Did the Quebec Court of Appeal erred in holding that sections 5 and 10 of the Provincial Act are constitutionally valid?
The Court held that enacting the impugned provisions of the Provincial Act was valid exercise by the Quebec legislature under the powers conferred by Sections 92(13) and (16) of the Constitution. The Court said that the prohibitions against the possession of cannabis plants and their cultivation at home set out in the impugned provisions of the Provincial Act are a means of serving the public health and security of the public.
The Court viewed that the Court of Appeal has not committed any error in holding the impugned provisions of the Provincial Act to be valid. The Court said that the pith and substance of the impugned provisions was to ensure the effectiveness of the state monopoly to protect the health and security of the public, and of young persons in particular, from cannabis harm.
The Court noted that the consumers receive quality-controlled products and advice from sales employees who have been trained on the risks associated with cannabis consumption. The Court said that the consumers buying from the SQDC, also means that they are subject to a series of requirements, the most important of which is setting a minimum age of 21 years for purchasing cannabis from the SQDC. Thus, the purpose of the impugned provisions of the Provincial Act was not to suppress possession and cultivation at home, but rather to ensure the effectiveness of the state monopoly to protect the health and security of the public from cannabis harm. Thus, prohibiting the possession and cultivation of cannabis plants is not in itself the purpose of the impugned provisions, but rather a means of steering consumers to the only source of supply considered to be reliable and safe.
The Court reflected on the pith and substance of the impugned provisions and said that the enactment ensured the effectiveness of the State monopoly on the sale of cannabis, and it relates to the provinces’ powers, and are therefore, intra vires the Quebec legislature. The Court said that though both these impugned provisions have all the characteristics of criminal law, they cannot be classified under Section 91(27) of the Constitution.
Further, the Court said that the prohibitions set out in the impugned provisions of the Provincial Act does not have punitive purposes, but instead reflect an approach based on regulating and supervising access to cannabis. Therefore, the impugned provisions do not fall within the sphere of the criminal law but rather within the provinces’ general power to regulate health. Thus, the Court said that the Court of Appeal therefore made no error in its review of the validity of the impugned provisions.
2. Did the Quebec Court of Appeal erred in holding that sections 5 and 10 of the Provincial Act are constitutionally operative?
The Court examined the doctrine of federal paramountcy to examine whether the impugned provisions of the Provincial Act were inconsistent with the federal Act. The doctrine is applicable when there is an operational conflict or when the purpose of the federal law is frustrated by any provincial law. The Court said that the application of the absolute prohibitions set out in the Provincial Act do not frustrate the federal purpose. The purpose of the federal Act’s provisions was not to create a positive right to self-cultivate cannabis as part of a broader objective of limiting the influence of organized crime.
Further, the Court relied on Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310 (P.C.), and said that when exceptions are carved out for practices that Parliament does not wish to prohibit, this only means that a particular practice is not prohibited, not that the practice is positively allowed by the federal law.
Therefore, the Court said that by not possessing or cultivating cannabis plants in homes, individuals in Quebec can easily comply with both the Acts, i.e., federal Act, which exempts the possession and cultivation of up to four cannabis plants from the application of its scheme of criminal offences, and the Provincial Act, which prohibits the possession and cultivation of any cannabis plant in a house.
Thus, the Court said that the Provincial Act’s public health and security objectives and its prohibitions were in harmony with the objectives of the federal Act, and there was no basis for finding a conflict of purposes.
[Janick Murray Hall v. Attorney General of Quebec, 2023 SCC OnLine Can SC 1, decided on 14-04-2023]