In a scrum with reporters on Wednesday, Minister of Justice Jody Wilson-Raybould suggested the federal government could be gearing up for a constitutional fight with Quebec and Manitoba over one of the most well-publicized aspects of the federal government's Cannabis Act: a provision that would allow Canadians to grow up to four cannabis plants at home for recreational use.
Quebec's Liberal government and Manitoba's Progressive Conservatives both plan to ban non-medical home cultivation completely after legalization.
If passed into law, the federal Cannabis Act would grant the provinces the right to "make some of the provisions including home cultivation and the number of plants more restrictive, they are free to do so," said Wilson-Raybould.
"Having said that, there are limits on that."
"Where provincial jurisdiction has overtaken federal jurisdiction, or the purposes in our legislation have been overtaken by another piece of legislation, there are federal paramountcy powers that come in... We are going to continue to have conversations with the provinces and territories," said Wilson-Raybould later in the scrum.
'Yes, they'll be challenged'
Legal experts say those provincial bans on growing recreational cannabis at home might face legal challenges that could lead to them being overturned by the courts.
"I think yes, they'll be challenged, whether that's successful or not is not certain," said Scott Bernstein, a lawyer who works as a senior policy analyst with the Canadian Drug Policy Coalition.Advertisement
"The crux of the case comes down to, really, what the intention of Parliament was when they created a four plant limit," he explained, and whether Parliament meant to allow the provinces to reduce that limit all the way to zero.
As Wilson-Raybould suggested on Wednesday, a May 2017 Department of Justice memo about the Cannabis Act suggests the federal government could argue against provincial bans in court under the doctrine of paramountcy. That doctrine gives federal law precedence over provincial law in the event of conflict between the two.
The Cannabis Act, the memo said, tries to achieve the government's policy objectives of stymieing black market marijuana production and letting Canadian adults access a quality supply of legal cannabis, "in part, by permitting personal cultivation of no more than four plants."
"A lower plant limit may be set in provincial legislation that is consistent with the federal objectives and allows for dual compliance with both provincial and federal limits, however a complete provincial prohibition on personal cultivation could be seen as frustrating the federal objective and thus be deemed inoperable."
That passage contains "actual buzzwords from the doctrine of paramountcy," said Andrew Bernstein, a partner in the litigation group at Torys LLP, who has argued constitutional law cases and clerked for a former chief justice of the Supreme Court of Canada.
Still, Bernstein said the wording of that passage is "pretty weak," and doesn't necessarily imply that Ottawa would make that argument in court.
"I think more likely the Department of Justice lawyers who wrote this said, 'Here's an argument that would be open for the federal government to make,' I don't think they've gone as far as saying, 'We would make it, and we would succeed.'"
But, any Canadian affected by Manitoba or Quebec's pending bans on home cultivation of recreational cannabis could potentially make a paramountcy argument in court, added Bernstein.
Possible Charter challenge
B.C. barrister Kirk Tousaw, who specializes in cannabis-related law, said a paramountcy challenge to provincial bans on recreational home cannabis cultivation could be "raised just as soon as somebody is arrested or ticketed or fined for their otherwise federally legal production."
But Tousaw also sees another legal possibility for fighting Manitoba and Quebec's proposed bans: a challenge under the Canadian Charter of Rights and Freedoms.
"Where I think you do have a possible Charter case is where a province attempts to impose some kind of penal sanction, whether that's a fine or possible jail time, on somebody who is growing recreational cannabis in compliance with federal law," he said.
The Charter, explained Tousaw, subjects Canadian laws "to a test of whether those laws are arbitrary or overbroad or produce grossly disproportionate consequences to any benefits that the law seeks to obtain."
If the federal government makes an activity legal and "a province makes that activity unlawful, and subjects its residents to some kind of sanction which infringes on their liberty, then you might have a section-seven argument because I don't think that there's any empirical justification for that type of ban," said Tousaw.
In any such Charter challenge, Tousaw expects provincial governments would likely cite public health and safety in justifying a ban on home cannabis cultivation.
"But there's no evidence that the bans achieve those public-safety goals," said Tousaw, pointing to the 2016 ruling of federal court judge Michael Phelan in Allard v. Canada. (That case, in which Tousaw served as co-counsel to lead complainant Neil Allard, dealt with the right of legally registered users of medical cannabis to grow their own supply.)
In his decision, which set the stage for the federal government's existing regulations on medical cannabis, Judge Phelan found that expert testimony on the health and safety risks of home cannabis cultivation was not credible.
"Many of the risks purported to be significant were not proved to exist, including fire, home invasion/violence/diversion and community impacts," wrote Phelan.
'A brave new world of cannabis regulation'
"Any federal position in future litigation would have to take into account the circumstances of a particular case, including final legislation and facts, which are not available at this time," said Health Canada in a recent statement to The Leaf News.
"The federal government continues to work in close collaboration with provincial and territorial governments to prepare for the implementation of the proposed framework."
Big federalism fights are not that common in Canada and usually tend to involve brand-new legislation, said Torys lawyer Andrew Bernstein.
"But cannabis kind of falls under the new thing, right? We're in a brave new world of cannabis regulation, and so I think there's going to be lots of constitutional law to be made on these various questions," he said.
The current Liberal government, Bernstein expects, "would protect its jurisdiction pretty carefully, but one could see a potential Conservative government being much less willing to get involved on behalf of cannabis users."