Cannabis Cultivation now Legal in Quebec
On September 3, 2019, the Superior Court rendered a decision that is likely to be of great interest to amateur horticulturalists and constitutional law nerds alike. As of that date, residents of Quebec may possess and cultivate up to four cannabis plants in their own home without running afoul of either federal or provincial laws.
Some background is in order. On October 17, 2018, Parliament adopted the Cannabis Act, SC 2018, c. 16, which decriminalized personal possession of small amounts of cannabis. Section 12 of the Cannabis Act moreover decriminalized a certain degree of personal production of cannabis, by only banning the cultivation of more than four plants in a private residence.
The provinces, in turn, adopted a variety of legislative schemes to address the sale, consumption, and advertising of cannabis products. Quebec took one of the stricter regulatory approaches to the product. Its Loi encadrant le cannabis, among other things, contained two provisions directly related to:
5. Il est interdit d’avoir en sa possession une plante de cannabis.
Il est interdit de faire la culture de cannabis à des fins personnelles.
Cette interdiction de culture s’applique notamment à la plantation des graines et des plantes, la reproduction des plantes par boutures, la culture des plantes et la récolte de leur production.
Read together, sections 5 and 10 prohibit anyone in Quebec from cultivating or possessing four or fewer plants, which is no longer prohibited under federal law. Anyone who contravened these prohibitions could be fined between $250 and $500.
This was unacceptable to Mr. Murray Hall, who brought an action in his own name as well as on behalf of all persons in Quebec who might be fined for possessing a cannabis plant or cultivating one at home. Mr. Hall sought a declaration that sections 5 and 10 of the Loi encadrant le cannabis are ultra vires the province or, alternatively, that they are inoperative by virtue of the doctrine of paramountcy or inapplicable due to interjurisdictional immunity.
On September 3, Manon Lavoie, J.S.C. granted Mr. Hall’s action, declaring sections 5 and 10 of the Quebec law to be invalid: Murray Hall c. Procureure générale du Québec, 2019 QCCS 3664.
Justice Lavoie moreover refused to suspend this declaration of invalidity, holding that invalidating these provisions outright would not pose a danger to the public or to the rule of law, since the federal Cannabis Act still exists to regulate possession and cultivation of cannabis plants.
What is most interesting about the Superior Court’s judgment is the fact that it is not based on an application of the doctrines of paramountcy or interjurisdictional immunity. Rather, the Court held that the provincial prohibitions on the possession and cultivation of cannabis plants were, in pith and substance, criminal law and therefore ultra vires provincial jurisdiction.
Justice Lavoie rejected the Attorney General’s contention that the prohibitions were aimed at protecting the health and safety of the population and that the province could adopt measures with such an aim. She found instead that the purpose of the provincial prohibitions (which were, like all valid criminal laws, accompanied by penal sanctions) was to create an absolute prohibition on cannabis plant possession and cultivation, in the context where Parliament had opted not to adopt an absolute bar on these activities.
The fact that the prohibition on possession and cultivation of cannabis plants was “un cas flagrant où la Loi provinciale interdit ce que la Loi fédérale permet” (para. 89) was, to Justice Lavoie, indicative of the provincial provisions’ invalidity:
Ici, le Parlement fédéral a décidé d’opter pour la réglementation du cannabis plutôt que la prohibition, étant manifestement plus efficace pour restreindre la consommation de ces produits par les mineurs. La législation fédérale permet cependant aux provinces d’adopter le même genre de réglementation afin, entre autres, de restreindre la consommation de cannabis par les mineurs. Les provinces peuvent alors adopter des mesures législatives et réglementaires qui couvrent les aspects provinciaux de la décriminalisation. Toutefois, cela ne saurait inclure une prohibition générale (para. 81, emphasis added).
With respect, this conclusion strikes me as problematic. There is a fairly consistent jurisprudence holding that provinces may, in fact, prohibit activities that are permitted under federal law.
For instance, the Supreme Court recognized in Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2015 SCC 13, that provinces may ban certain forms of advertising of tobacco products even if federal criminal legislation does not absolutely prohibit such advertising. Decades earlier, in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board),  2 SCR 59, the Court held that a prohibition of nude entertainment as a condition of issuing a liquor license was intra vires the province, despite the fact that the Criminal Code already contained prohibitions relating to public nudity and yet did not ban nude entertainment altogether.
The caveat is that any provincial prohibition must be supported by a purpose that relates to a matter falling within provincial jurisdiction. A desire to protect health and safety could, for instance, validly ground an exercise of provincial legislative power.
Justice Lavoie, however, finds that Quebec’s purpose was to impose absolute prohibitions on cannabis plant possession and cultivation (see e.g. para. 76). Despite later acknowledging that these absolute prohibitions were adopted “afin de préserver la santé de la population” (para. 84, emphasis added), she holds that the mere fact of intending to adopt, and actually adopting an absolute prohibition on certain activities that Parliament had decriminalized had brought Quebec outside of its constitutional jurisdiction (para. 86).
In focusing exclusively on the absolute nature of the prohibitions in sections 5 and 10, Justice Lavoie appears to have confounded the purpose of these provisions with the means chosen to achieve the province’s goals. It is self-evident that a province that has adopted an explicit absolute prohibition on an activity intended to do so; in principle, a court can always conclude that an order of government intended to adopt the legislation that it did.
But this does not reveal the purpose for which the province acted in the first place. The relevant question in the pith and substance analysis is whether Quebec’s reason for adopting absolute prohibitions could support an exercise of provincial jurisdiction. This was simply not a question Justice Lavoie really addressed; to her, the absolute nature of the prohibitions was determinative of the validity of the pith and substance of the impugned provisions.
Because of she concluded that sections 5 and 10 are, in pith and substance, criminal law, Justice Lavoie did not conduct an analysis of whether and how paramountcy or interjurisdictional immunity might impact these provisions’ applicability or operability. Whether these issues will be addressed in an eventual appeal by the Attorney General of Quebec remains to be seen.
For now, though, it looks like the SQDC is no longer the only game in town – or in the province – for Quebeckers interested in taking advantage of the federal decriminalization of cannabis possession.