Cannabis Regulation Act: Summary Of Murray-Hall V. Attorney General Of Québec, 2023 SCC 10

• Law Firm: Borden Ladner Gervais LLP
• Subject Matter: Government, Public Sector, Criminal Law, Cannabis & Hemp, Constitutional & Administrative Law, Crime
• Author: Ms Nadia Effendi, Anaïs Bussières McNicoll and Antoine Gamache
• Published date: 16 May 2023

In an unprecedented visit by the Supreme Court to Québec City in September of 2022, the country's highest court heard the appeal of Mr. Janick Murray-Hall (the Appellant) in his challenge of the constitutional validity of two sections of the Cannabis Regulation Act.

The decision in Murray-Hall v. Attorney General of Québec, 2023 SCC 10 is an interesting example of the application of the double aspect doctrine, whereby the Supreme Court confirmed that provincial legislatures may enact legislation that has all the appearance of criminal law, where such legislation is enacted within the limits of the heads of jurisdiction granted to the provinces. Moreover, the decision of the highest court in the land also confirms the essentially prohibitive nature of criminal law rules and that, as a matter of principle, such rules do not grant positive rights to constituents.

Key takeaways

• According to the double aspect doctrine, Parliament and the provincial legislatures may make laws on matters that by their very nature have both a provincial and a federal aspect.
• Under the doctrine of federal paramountcy, there is an inconsistency that justifies giving a federal law priority over a valid provincial law where there is an operational conflict or when the purpose of the federal law is frustrated.
• The federal head of power on criminal law can only be exercised to prohibit acts, and thus cannot create positive rights for litigants.

Context

In 2018, the federal government passed the Cannabis Act (the Federal Act), decriminalizing the recreational use of cannabis. The Federal Act prohibits the possession or cultivation of more than four cannabis plants in a dwelling-house. At the same time, the provincial government passed the Cannabis Regulation Act (the Provincial Act) regulating the possession, cultivation, use, sale and promotion of cannabis in Québec, and also creating the Société québécoise du cannabis, which has a monopoly on the sale of cannabis in the province. The Provincial Act prohibits the possession or cultivation of cannabis plants for personal use in a dwelling-house,¹ subject to fines.

Mr. Murray-Hall challenged the validity of sections 5 and 10 of the Provincial Act on his behalf and on behalf of all persons who are liable to be prosecuted for possession of a cannabis plant in their dwelling-house in Québec. The Appellant claimed, among other things, that these prohibitive sections of the Provincial Act infringed upon the federal criminal law power.²

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