The Supreme Court Rules On The Provinces' Power To Regulate Cannabis

• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Cannabis & Hemp, Trials & Appeals & Compensation
• Author: Canadian Appeals Monitor, Adam Goldenberg, Holly Kallmeyer and Simon Bouthillier
• Published date: 15 May 2023

In Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, the Supreme Court of Canada ruled that provinces have the power to prohibit personal cultivation of cannabis. In doing so, the Supreme Court also shed light on the scope of the constitutional power over health, commerce and criminal law, as well as the doctrine of federal paramountcy.

Facts

In 2018, Parliament passed the Cannabis Act, SC 2018, c. 16 (the "federal law"). Under this law, it is prohibited for an individual to possess or cultivate more than four cannabis plants in their home.

A few days before the adoption of the federal law, the National Assembly of Quebec adopted the Cannabis Regulation Act, CQLR, c C-5.3 (the "provincial law"), which completely prohibits the possession and cultivation of cannabis plants at home, regardless of the number of plants (the "challenged provisions").

The appellant filed an application before the Superior Court of Quebec seeking a declaration that the provisions were ultra vires and of no force or effect.

Decisions of the Superior Court and the Court of Appeal

After analyzing the legislative history of drug criminalization and legislative debates, the Superior Court concluded that the pith and substance of the challenged provisions was "to completely prohibit the personal cultivation of cannabis because it harms the health and security of the public", which fell under the federal criminal law power. The Superior Court found that the rest of the provincial law was valid under ss. 92(13) and 92(16) of the Constitution Act, 1867, but that the challenged provisions could not be saved by the ancillary powers doctrine because the encroachment of these provisions on the federal jurisdiction in criminal matters is serious. The Superior Court suggested that it would have been possible for the province to restrict the number of plants rather than banning them altogether. Finally, the Superior Court stated that provincial law was a form of "colourable legislation", which appeared to fall under provincial jurisdiction, but whose pith and substance fell under the criminal law power. In light of its conclusion on validity, the Superior Court did not find it necessary to address the argument on operability.

The Court of Appeal of Quebec overturned the first instance decision, finding that the challenged provisions must be placed in the overall context of the provincial law and that the pith and substance of the challenged provisions is to "put in place one of the means...