Quebecers will still not be able to grow cannabis at home. The Supreme Court of Canada ruled on Friday that the Quebec government has the right to ban the cultivation of cannabis at home, even if it is authorized by federal law.
Quebec is the only province, along with Manitoba, to have completely prohibited the cultivation and possession of cannabis plants at home. Quebecer Jannick Murray Hall challenged this ban, arguing that Quebec had thus tried to encroach on federal jurisdiction over criminal law.
But the Supreme Court of Canada rejected these arguments. The Quebec law, although more restrictive than the federal law, pursues the same objectives — namely to discourage the illicit trade in cannabis. And the imposition of fines – deemed “relatively modest” by Chief Justice Richard Wagner, who signed the court’s unanimous decision – does not correspond to an attempt by Quebec to interfere in the field of criminal law.
The Quebec government could therefore prohibit the cultivation and possession of cannabis at home on its territory, ruled the highest court in the country.
“Sections 5 and 10 of the provincial law are not intended to suppress possession and cultivation at home as such, but to ensure the effectiveness of the state monopoly for the purpose of protecting health and of public safety against the harms of cannabis”, write the nine judges under the pen of the chief justice. “The public health and safety objectives pursued by the provincial law and its prohibitions are, to a large extent, consistent with the objectives pursued by the federal law, and there is no reason to conclude that there are a conflict of objects. »
Asymmetrical legalization
By legalizing cannabis in Canada, the government of Justin Trudeau allowed in its 2018 law the cultivation of a maximum of four cannabis plants per dwelling. The Quebec law governing cannabis, adopted the same year, tightened this federal authorization and prohibited any cultivation at home. Quebec offenders are liable to fines of $250 to $750.
The judges of the Supreme Court were careful not to pronounce on these different approaches.
“It is not for the Court to decide which of the two approaches — the prohibition of personal production, or the tolerance of such a practice — is more likely to limit the exercise of activities cannabis-related offences, they write. Suffice it to say that it is this same objective that guided the legislative intervention of the two orders of government in this case. »
The plaintiff’s lawyer Jannick Murray Hall argued before the Supreme Court, during hearings held exceptionally in Quebec last September, that the provincial government had come to interfere in federal jurisdiction and criminal law. The Quebec government, for its part, pleaded that it had legislated under its own jurisdiction in matters of health protection and argued that authorizing the cultivation of cannabis at home would break the monopoly that the province has chosen to entrust to the Société québécoise du cannabis (SQDC).
The Supreme Court seems to have subscribed to this second argument, holding that “prohibitions on the possession and cultivation of plants at home contribute to the effectiveness of the state monopoly by directing consumers to the only legally authorized source of supply”.
The court also reiterated the conclusions of the Quebec Court of Appeal.
Mr. Murray Hall — who became known for his satirical news site The Diary of Mourreal — had won the case at first instance. The Superior Court of Quebec had ruled in 2019 that the Quebec law did indeed encroach on federal criminal jurisdiction. But the Quebec Court of Appeal overturned this decision two years later, ruling that the federal law had “not limited the power of the National Assembly to prohibit the private cultivation of cannabis” and that the objectives of the Quebec government were moreover “in harmony” with those covered by the federal law.
A similar challenge was filed in Manitoba, where the government has also banned all home cultivation of cannabis. The case was heard in the Court of King’s Bench in May 2022. Judge Shauna McCarthy has yet to render her decision.