Appeal Watch: Delineating Constitutional Cannabis in Janick Murray-Hall v Attorney General of Quebec .
On September 15th, 2022, the Supreme Court of Canada (“SCC” or “the Court”) heard Janick Murray-Hall v Attorney General of Quebec SCC 39906 [Murray-Hall (2022)], on appeal from the Quebec Court of Appeal (“QCCA” or “Court of Appeal”). This case offers the SCC an early opportunity to scrutinize and define federal and provincial legislative jurisdictions related to cannabis, elaborate the methods used to determine whether the dominant trait of a provincial legislative measure is criminal or related to general health, and refine the correct application of the federal paramountcy doctrine to such disputes.
The appellant, Mr. Murray-Hall, alleges that a total ban on cultivating cannabis for personal recreational use (medicinal homegrown cannabis is still permitted) use as enacted under ss. 5 and 10 of the Quebec Cannabis Regulation Act, CQLR, c C-5.3 [Quebec Act] usurps the federal criminal law power under s. 91(27) of the Constitution Act, 1867, [Constitution]. Alternatively, he argues that ss. 5 and 10 conflicts with the federal Cannabis Act, SC 2018, c 16 [Federal Act], and is thus of no force or effect by virtue of the federal paramountcy doctrine. The respondent, the Attorney General of Quebec, argues that these provisions are a valid exercise of provincial jurisdiction guaranteed under the Constitution, specifically over property and civil rights (s. 92(13)) and over matters of a merely local or private nature (s. 92(16)), and contends that there is no conflict with the Federal Act.
In 2018, Parliament enacted the Federal Act, which amended both the Controlled Drugs and Substances Act (“CDSA”) and the Criminal Code to allow for the legalization of cannabis activity in Canada. Of particular interest for this case is s. 12(4)b) of the Federal Act, which prohibits any adult from cultivating, propagating, or harvesting more than four cannabis plants in their residence. Later that year, the Quebec legislature enacted the Quebec Act, which contains ss. 5 and 10 that prohibit both the possession of any cannabis plant as well as any cultivation of cannabis for personal recreational use.
The Quebec Superior Court (“QSC” or “Trial Court”) found that legislative debate regarding ss. 5 and 10 of the Quebec Act was motivated by a general disapproval of cannabis use, and concluded that the pith and substance of the impugned provisions is to completely prohibit the personal cultivation of recreational cannabis because it harms the health and security of the public [Murray-Hall (2019), para 46-51]. According to the QSC, this absolute prohibition imitates former cannabis criminalization under the CDSA and satisfies the criteria identifying a criminal law in R v Malmo-Levine, 2003 SCC 74 and R v Morgentaler,  3 SCR 463 [Morgentaler ‘93]: a provision with a valid criminal law purpose backed by a prohibition and a penalty enacted in the interest of public morals [Murray-Hall (2019) paras 58-60]. As such, the QSC classified ss. 5 and 10 as falling under s. 91(27) of the Constitution, the federal criminal law power, and that the dominant purpose of the provisions are of a criminal nature [Murray-Hall (2019), para 54]. In the eyes of the QSC, the “double aspect” doctrine, which establishes that the same subject matter can be concurrently assigned to and legislated on by both levels of government- here, the “subject of drugs”- does not save ss. 5 and 10 because these provisions encroach solely onto the federal criminal law power (Murray-Hall (2019), para 89) . Finally, the QSC decided ss. 5 and 10 are not saved on the basis of being sufficiently integrated within the rest of the Quebec Act itself, which the Trial Court found to fall legitimately under provincial powers as a whole, and did not consider arguments on federal paramountcy.
The Quebec Court of Appeal
In Procureur général du Québec c Murray-Hall, 2021 QCCA 1325 [Murray-Hall (2021)] the Court of Appeal disagreed with the Trial Court and countered that Quebec’s prohibition of personal cultivation must be considered within the context of its associated regulatory regime. Since Quebecers can buy legal cannabis from the Société québécoise du cannabis (“SQDC”), the prohibitions should not be seen as an isolated effort to prohibit cannabis for its own sake but instead as a means to help maintain the province’s monopolistic control over cannabis distribution in Quebec. To consider this prohibition as an isolated initiative would confuse the purpose of the legislation with the means chosen to carry out that purpose (Murray-Hall (2021), para 53). As well, the new provincial legislation uses fines up to $750 to enforce its prohibition instead of prison terms of up to 14 years which the former federal prohibitions used. This reinforces the plausibility that Quebec’s prohibition serves to enforce the general regulatory regime of which they are a part rather than reprimand individuals for immoral behaviour (Murray-Hall (2021), para 60).
The QCCA thus characterized the impugned provisions’ matter as a means chosen by Quebec to reinforce the integrity of its monopoly over lawful cannabis activity (Murray-Hall (2021), para 82). Applying the double aspect doctrine to the matter of public health, the QCCA found the provisions to be valid legislation under provincial jurisdiction over property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)) (Murray-Hall (2021), para 97). The QCCA considered but refused to apply the doctrine of federal paramountcy on the basis that the Quebec Act did not frustrate the purpose of the Federal Act.
Issue 1: The unclear scope of the “pith and substance” analysis
The correct approach to deciphering the Quebec Act’s “purpose and effects” as per the qualification stage of the pith and substance analysis, is expected to attract at least some clarification by the SCC in Murray-Hall (2022). The QCCA alleged that the Trial Court used an incomplete analysis of the “purpose and effects” of the provisions that led the court to erroneously infer that ss. 5 and 10 pursued an objective “autonomous” from the whole Quebec Act, deciding instead that ss. 5 and 10 were simply the “means chosen to achieve [it]” [Murray-Hall (2021), para 53]. According to the Court of Appeal, the Trial Court’s consideration of intrinsic evidence was too narrowly focussed on ss. 5 and 10, resulting in an incomplete analysis. They cited the Court in Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31 [Kitkatla]:
“Where the challenge is to a specific provision of a general plan, the pith and substance analysis begins with the impugned provision […] If the argument of constitutional validity is based on the claim that the impugned provision is part of a regulatory scheme, then the constitutionality of that system as a whole will have to be considered [Kitkatla, para 56].
Despite the omission of Kitkatla in its reasoning, the Trial Court did scrutinize the broader cannabis regulations enacted by the province as per the simultaneous creation of the SQDC. The QSC also acknowledged numerous provisions within the Quebec Act that tended towards a public health regulatory purpose [Murray-Hall (2019), para 39], while also ascertaining a purpose grounded in cannabis prohibition by looking at the intention of the legislators to “prevent and reduce cannabis harm” identified in s. 1 of the Quebec Act.
Given that the Court of Appeal constructed an interpretation of the Quebec Act’s “purpose and effects” differently, Murray-Hall (2022) will therefore provide an opportunity for the Court to clarify the Kitkatla rule, in particular the weight to be given to the impugned provisions themselves versus the broader regulatory scheme in the context of personal cannabis cultivation.
Issue 2: The method for classifying public health matters needs to be made understandable
The second step in the pith and substance analysis is to assign the matter to federal or provincial jurisdiction (Morgentaler ‘93, 23). However, the Murray-Hall case history offers a prime example of the confusion that arises when a division of powers question concerns the nexus between criminality and public health. This confusion stems from the fact that the distinction is (perhaps surprisingly) merely a by-product of our federalist governmental structure; In a unitary state, such as the United Kingdom, all laws that are prohibitions accompanied by a sanction can be characterized as being criminal in nature (Proprietary Articles Trade Association v Canada (Attorney General),  2 DLR 1). In Canada, provinces can also enact prohibitions when they are in support of otherwise valid legislation (Rio Hotel Ltd v New Brunswick (Liquor Licensing Board),  2 SCR 59), and the scope of the federal criminal law power has only been slightly developed beyond the aforementioned broad and simplistic definition, where the prohibition must now have a valid criminal purpose aimed at some evil, injurious, or undesirable effect upon the public (Reference re Validity of Section 5 (a) Dairy Industry Act,  SCR 1, para 49). Public health is recognized as one of these valid criminal purposes (Morgentaler v The Queen,  1 SCR 616, 625). At the same time, however, the Court’s jurisprudence has attributed a general jurisdiction over public health to the provincial power over matters of a purely local nature (s. 92(16)) (Schneider v The Queen,  2 SCR 112, 137) [Schneider]. It is thus unsurprising that the Trial Court and Court of Appeal classified the matter of the impugned provisions under different jurisdictional heads of power, because the structure of our constitutional regime has created an ambiguity where the criminal and public health powers intersect.
The Court should take the opportunity presented by Murray-Hall to fix this ambiguity. It is true that the definition of the criminal law power cannot be defined in such a way so as to freeze it in time or confine it to a fixed domaine of activity (RJR-MacDonald Inc v Canada (Attorney General),  3 SCR 199, para 28). However, there is a problem with not having an enunciated methodology to use when deciding between invoking public health as a valid criminal purpose in order to invalidate provincial provisions by attributing them to the federal criminal power, or instead upholding those provisions as validly falling under the provincial jurisidiction of public health. For example, in Schneider, the Court used the intention by British Columbia to medically treat narcotics addicts instead of punish them to deem their compulsory detention as valid provincial legislation. Is the intention to punish thus the ultimate criteria in every case where criminal law and public health intersect? The law is not clear, and clarifying it would bring the Court’s future decisions more in line with the principle of the rule of law by making them less arbitrary and unpredictable from the perspective of observers.
Given the current state of the law, we do not believe one can adequately conclude as to whether the matter of the impugned Quebec Act provisions falls under the federal criminal power of s. 91(27) or if they fall under the provincial general health power of s. 92(16).
Issue 3: Federal paramountcy will impact cannabis regulation
If found to be constitutionally valid on the basis of the pith and substance test, the SCC must then grapple with the appellant’s argument that ss. 5 and 10 of the Quebec Act are inoperative by virtue of frustrating the purpose of the Federal Act, pursuant to the doctrine of federal paramountcy, which dictates that provisions of a Provincial Act be rendered inoperative to the extent of their incompatibility with federal legislation (Murray-Hall (2019), para 32).
The Trial Court found that the “provincial act prohibits what the federal act authorizes,” [Murray-Hall (2019), para 89], but did not elaborate as a result of already finding ss. 5 and 10 constitutionally invalid. The QCCA, after finding the impugned provisions to be constitutionally valid, rejected the lower court implication that the Quebec Act frustrates the Federal Act, since the “federal purpose does not emerge clearly from the [Quebec Act]” in the first place [Murray-Hall (2021), para 132]. The QCCA acknowledges that a Senate decision was made to exclude an amendment expressly allowing provinces to reduce or prohibit homegrown cultivation, but proceeds to find that the legislative purposes outlined in s. 7(a) of the Federal Act (reducing youth access to cannabis) and (f) (controlling cannabis quality) imply a restrictive decriminalization as opposed to a positive legalization approach to creating home cannabis cultivation rights (Murray-Hall (2021), para 120, 126-129). The QCCA also found that the federal legislature did not contemplate homegrown cannabis as a method of “lawful production” under the s. 7(c) purpose (using lawful production to counter illicit activities), and found the modest fine penalty insufficient to establish a frustration of purpose 7(e) of the Federal Act, to reduce the burden on the criminal justice system.
Authorities governing the federal paramountcy doctrine, and the manner of its application by the Court of Appeal appear relatively unambiguous with respect to ss. 5 and 10 of the Quebec Act. However, the degree to which the SCC either conforms to or departs from the the purpose of the Federal Act as articulated by the QCCA will either embolden or dissuade provincial efforts to regulate cannabis in other ways—especially at this early point in its classification as a legal drug.
While cooperative federalism demands a restrictive application of federal paramountcy, it also necessitates for the sake of clarity that the Court supply a rational test to determine the content and boundaries of a law’s coherent general purpose, and, in circumstances such as Murray-Hall, derive that purpose from a cluster of relevant regulatory aims, such as those identified in s. 7 of the Federal Act.