Valid and Operative Division of Powers: Murray‑Hall v Quebec (Attorney General)

In Murray‑Hall v Quebec (Attorney General), 2023 SCC 10 [Murray-Hall], a unanimous Supreme Court of Canada (“SCC”) held that Quebec legislation prohibiting possession of cannabis plants for personal cultivation or use can coexist with a federal law permitting possession up to four plants.

The context here is that in Canada both levels of government have “exclusive”—though not entirely “watertight”—compartments of legislative authority, outlined in sections 91 and 92 of the Constitution Act, 1867 (“Constitution Act”). In an increasingly complex state, there’s often overlap of powers. 

Canadian courts have adopted and developed principles that facilitate a “cooperative” federalism whereby the two levels of a government are necessarily required to balance overlap, and the courts resolve disputes when they arise. When a branch of government’s legislative scope is challenged, courts examine the impugned provision to determine its constitutional validity. Where legislative authority legitimately overlaps, courts will uphold both levels’ legislation under the “double aspect” doctrine.

However, constitutionally valid overlap may conflict to an irreconcilable degree. Then, the courts rely on the doctrine of federal paramountcy to render the provincial law inoperative to the extent of the conflict if certain conditions are found to exist. 

That is the analysis the SCC walked through. This comment, after reviewing the case itself, will briefly discuss the continued utility of the two paramountcy branches. 

Summary of Facts and Procedural History

In June 2018, Parliament passed the Cannabis Act, S.C. 2018, c. 16 (“Federal Act”) which decriminalised cannabis use and, among other things, prohibited the possession of more than four cannabis plants for personal use and cultivation. As provinces responded with their own regulatory schemes, Quebec introduced a bill that created the Société québécoise du cannabis, a provincial monopoly on cannabis sales, and the Cannabis Regulation Act, CQLR c C-5.3 (“Provincial Act”), ss. 5 and 10 of which prohibit the possession of any number of cannabis plants for personal purposes. 

Trial and Appeal

Mr. Murray-Hall brought an action to the Quebec Superior Court on behalf of himself and all persons in Quebec liable to be prosecuted for violation of the Provincial Act. He argued that ss. 5 and 10 of the Provincial Act fell within the exclusively federal criminal law power of s. 91(27) of the Constitution Act and was thus ultra vires; in the alternative, he argued that the provisions were of no force or effect under the doctrine of federal paramountcy. The Superior Court agreed with the first of these arguments, declaring the provisions unconstitutional. 

On appeal, the Quebec Court of Appeal set aside the trial judgement holding that the provisions were within the provincial heads of power of ss. 92(13) and (16) (provincial jurisdiction over property and civil rights, and residual jurisdiction over matters of a local or private nature, respectively) and that the provisions were operative.

At the SCC

The SCC unanimously held that (i) ss. 5 and 10 of the Provincial Act are constitutionally valid exercises of Quebec legislative power under s. 92(13) and (16) of the Constitution Act; and (ii) the provisions are operative under the paramountcy doctrine because they do not frustrate the purpose of the federal legislation. 

The impugned provisions are constitutionally valid

In determining whether a provision is constitutionally valid within the division of powers, courts first characterise the provision to determine its “pith and substance” (i.e., dominant purpose) and in so doing, analyse the provision’s purpose and effect. Courts then classify the provision under the head(s) of power within ss. 91 and 92 to determine whether the proper level of government legislated on the matter.

The Court found that the pith and substance of ss. 5 and 10 of the Provincial Act is to protect the legitimate state monopoly on cannabis for the purpose of protecting the health and security of the public (Murray-Hall, para 28). The prohibition against possession and cultivation of cannabis plants is merely a means of serving this objective. That is, viewed in their legislative context, ss. 5 and 10 don’t have an independent purpose of prohibiting possession and cultivation of cannabis—they are merely a way to advance the Provincial Act’s goal of a state monopoly (Murray-Hall, para 45). The effect of the legislation is to prevent possession of cannabis plants, and to do so by imposing penal sanctions for violations. In light of the purpose, the modest fines attached to the sanctions confirm their intent to enforce the valid monopoly (Murray-Hall, para 59–60).

At the classification stage, Wagner J. held that even though the provisions “seemingly have all the characteristics of criminal law” they should not be classified under s. 91(27) (Murray-Hall, para 67). The fact that ss. 5 and 10 are similar to provisions enacted under the federal criminal law power can be explained by the double aspect doctrine—that is, the federalism doctrine that recognizes overlapping powers and permits overlap when a level of government has a compelling interest in enacting its legislation on different aspects of the same issue (Murray-Hall, para 76).

The impugned provisions are operative

The doctrine of federal paramountcy holds that the federal law prevails when otherwise constitutionally valid provincial and federal laws are inconsistent to an extent where either (i) simultaneous compliance with both laws would be impossible (“operational conflict”), or (ii) the purpose of the federal law is frustrated by the provincial law (“federal purpose”) (Murray-Hall, para 84). The Court found that federal paramountcy did not apply because there was no conflict.

Starting with the first branch, a provincial law that’s more restrictive than a federal one cannot, naturally, give rise to an operational conflict because compliance with both provisions is possible at the more restrictive standard (para 87). Therefore, only the federal purpose branch could apply in Murray-Hall.

The appellant argued that the purpose of the Federal Act was to create a positive right to possess cannabis plants and that the Quebec legislature, by completely prohibiting possession, frustrated the purpose of the Federal Act. Therefore, it should be rendered inoperative to the extent that it frustrates the Federal Act’s purpose.

This could not be the case, Wagner J. held, because the Federal Act did not intend to confer a positive right. In fact, the Court affirmed the “essentially prohibitory nature” of criminal law (para 83), and relied on other case law asserting the same (para 90). 

Analysis

The Court unanimously finding the provincial legislation to be valid and operable is a welcomed outcome. Murray-Hall represents a clear and uncontroversial application of the double aspect and paramountcy doctrines. This consensus stands in contrast to the highly criticised Reference re Genetic Non‑Discrimination Act, 2020 SCC 17 [GNDA Reference], which was the last time the Court addressed the federal criminal law power head-on, resulting in a split decision of three-to-two-to-four on pith and substance.

Being that these constitutional interpretation doctrines are judicially developed, it’s important for the apex court to provide straightforward direction. Shannon Hale and Dwight Newman, K.C. criticised the GNDA Reference writing that unpredictability regarding the characterization and definitional scope of law “undermines policy development and intergovernmental negotiation” (page 32).

Even though the Murray-Hall Court had no issue applying either doctrine, and the GNDA Reference was split on pith and substance, I want to briefly review the utility of the two paramountcy branches and the characterization of the federal purpose branch. Murray-Hall apparently indicates their doctrinal strength, but I wonder if the current makeup of the Court still holds to any of the majority view in Saskatchewan (Attorney General) v Lemare Lake Logging Ltd., 2015 SCC 53 [Lemare Logging], where Gascon J. stated that “[a]t some point in the future, it may be argued that the two branches of the paramountcy test are no longer analytically necessary or useful” (para 23).

What Gascon J. highlighted goes to the approach courts should take when dealing with the question of how to define a conflict between federal and provincial laws. It matters because the definitional scope of conflict has profound implications, given that a broader definition will strike down more provincial laws and resembles, according to Peter Hogg, judicial activism.  

And while the federal purpose branch, with its broader definition of conflict, is good law today, it echoes an approach articulated by Cartwright J. in his O’Grady v. Sparling, [1960] SCR 804 dissent, with which a majority of the Court had repeatedly disagreed. That approach, often called the “covering-the-field” theory, would find any provincial law within the same “field” as the federal law to be inoperative. 

Later, in Multiple Access v. McCutcheon, [1982] 2 SCR 161 [Multiple Access], Dickson J. defined the operational conflict theory, where federal paramountcy would be engaged only by express contradiction between the federal and provincial laws. As Dickson J. wrote in Multiple Access, “[i]n principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says ‘yes’ and the other says ‘no’” (page 191).

Multiple Access responded to the previous two decade’s jurisprudential uncertainty and seemed to settle the law. It also represents a minimal impermissible overlap approach under a paramountcy doctrine. However, in 1990, the SCC “unexpectedly” (as Hogg put it) shifted toward broader federal powers in Bank of Montreal v Hall, [1990] 1 SCR 121 by creating the federal purpose branch of the doctrine, which returned to Court to an analysis of conflict at purpose, not simply an express contradiction. As Eugénie Brouillet & Bruce Ryder noted, this newer development “poses a more serious threat to provincial autonomy.”

I note that Wagner J.’s analysis gives priority to a restrained scope of conflict, stating that a “cardinal rule of constitutional interpretation” is that if a federal law can be interpreted to not interfere with a provincial law, such an interpretation is preferred (Murray-Hall, para 85, citing A.G. Can. v. Law Society of B.C., [1982] 2 SCR 307, page 356). The Court also highlighted the need for “the greatest possible precisions” where the legislative subject has a double aspect in order to avoid the risky business of “eroding” provincial autonomy (Murray-Hall, para 85, citing References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para. 128). In light of that high standard, the Murray-Hall Court ultimately found that the appellant did not meet the high burden of proof. 

To be clear, the current articulation of the federal purpose branch is that the scope of a federal act should be defined with restraint (Lemare Logging, para 27; Murray-Hall, para 86). In Lemare Logging, the key issue was how broadly the federal purpose should be defined. There, the SCC held that courts should be cautious in applying the doctrine and “should avoid an expansive interpretation of the purpose of federal legislation” (para 23). Following Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 [COPA] and Canadian Western Bank v Alberta, 2007 SCC 22, Lemare Logging affirmed that “clear proof” of a federal purpose is required (Lemare Logging para 26; COPA, at para. 68). 

That said, even with an emphasis on a “restrained” approach and “clear proof” of federal purpose, this may be where the Court trips up in the future. As Hogg remarked, “[b]ecause there is no objective way of ascertaining the purpose of a particular federal law, and no objective way of determining whether a provincial law would frustrate that purpose, the decisions have become highly unpredictable.”

Another challenge courts face in applying the doctrine is conflation of the two branches, which Côté J. criticised the majority of doing in her Alberta (Attorney General) v Moloney, 2015 SCC 51 [“Moloney”] concurrence with McLachlin C.J. The central issue in Moloney was the characterization of conflict between the provincial and federal law, precisely the issue that risks diminishing provincial autonomy.

Nevertheless, Murray-Hall Court clearly didn’t need to eliminate the federal purpose branch to achieve its outcome. And as a matter of dealing decisively with the actual issue before the court, Wagner J. had no need to diverge from precedent. Where Murray-Hall does make a small mark is in limiting the scope of the criminal law power of the within the federal purpose branch, which Jesse Hartery addressed while Murray-Hall was being heard by the SCC. Though it was more of a refinement of the current restrained approach than Gascon J.’s forecasted unified approach, it is apparently responsive to concerns about definitional scope. Ultimately, given the GNDA Reference, it’s hard to consider Murray-Hall’s unequivocal affirmation of the law as anything other than a win.

This article was edited by Ariel Montana