The Supreme Court reaffirms the provinces' power to regulate cannabis
April 14, 2023
On April 14, 2023, the Supreme Court ruled in Murray-Hall v. Quebec (Attorney General) that provinces have the power to prohibit personal cultivation of Cannabis in Canada, despite federal legislation allowing individuals to cultivate no more than four plants in their home.
In 2018, Janick Murray-Hall filed an application before the Superior Court of Quebec seeking a declaration that the provisions of the Cannabis Regulation Act passed by the National Assembly of Quebec, which prohibited the possession and cultivation of cannabis plants at home, were ultra vires and of no force or effect.
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 chosen to ensure the effectiveness of the state monopoly granted to the Société québécoise du cannabis".
The Supreme Court unanimously concluded that the pith and substance of the challenged provisions is "to ensure the effectiveness of the state monopoly in order to protect the health and security of the public, and of young persons in particular, from cannabis harm". According to the Supreme Court, the prohibitions on personal cultivation ensure control over the quality of the products offered, awareness of the health risks associated with cannabis consumption, and compliance with minimum age purchase standards. It affirmed that there is no conflict of application because it is possible to comply with both provincial and federal law by not engaging in self-cultivation.
McCarthy Tétrault advised the Cannabis Council of Canada and the Association québécoise de l’industrie du cannabis before the Supreme Court of Canada with a team led by Adam Goldenberg that included Holly Kallmeyer and Simon Bouthillier (Litigation).