Is the Quebec Cannabis Ban Unconstitutional?
The Supreme Court of Canada heard arguments about whether or not the Quebec cannabis ban on homegrown cannabis is unconstitutional. According to the Cannabis Act, Canadians can grow up to four plants at home. However, the federal government left it up to the provinces to make their own decisions on this and other aspects of the cannabis market. Quebec was one of the provinces that elected to make homegrown cannabis illegal.
That Quebec cannabis ban is unconstitutional, argued lawyer Maxime Guérin on behalf of his client, Janick Murray-Hall.
“We seem to be putting aside the existence of this right to grow,” Guérin told the nine Supreme Court justices. “There’s an opposition between the federal position and the provincial position.”
Guérin stated that the Quebec ban also stigmatizes cannabis use and possession, and forces people to go back to the black market – especially for other items not allowed in Quebec. The CBC report (see link below) does not detail those items. However, Quebec also banned edibles and topicals. (Quebec started allowing some edibles a year later.)
However, Patricia Blair argued on behalf of Quebec’s Attorney General that Quebec’s Criminal Code only prohibits activities. Likewise, the federal Cannabis Act does not make growing cannabis at home a right. It only states that growing cannabis at home is not illegal. Blair also pointed out the fact that the Cannabis Act explicitly allows provinces to create their own laws within their jurisdictions.
Therefore, a Quebec cannabis ban on homegrown cannabis, edibles, topicals, and other products covered under the Cannabis Act cannot be unconstitutional.
Not the First Time a Quebec Cannabis Ban Has Been Challenged – LPC
This is not the first time that a Quebec cannabis ban on homegrown cannabis was challenged in court. Murray-Hall had the ban overturned by a Quebec Superior Court judge in 2019. However, the Quebec Court of Appeals overturned that decision in 2021.
At the heart of this particular fight seems to be the question of whether the federal and provincial laws contradict or complement each other. If they are found to contradict each other, that opens a whole new can of worms: which set of laws trumps the other, federal or provincial? And would that question be different in Quebec, where the law generally recognizes Quebec to be a distinct society? These questions can have effects reaching further than the Quebec cannabis ban on homegrown cannabis.
“We have significant overall concerns about the implications of this case,” said Robert Cunningham, a lawyer for the Canadian Cancer Society. “What is the impact on the other public health laws dealing with tobacco, alcohol, and many other areas?”
It is also a clash of Canadian freedoms and ideals. Does this mean that the Cannabis Act does not make cannabis use a right in Canada? Is it only illegal? Previously, this question may not have mattered. A judge could ban someone from using cannabis, but can a whole government below the federal level?
The question of a Quebec cannabis ban has implications for all Canadians. Undoubtedly, we should move towards greater freedoms while maintaining a safe supply and keeping cannabis out of the hands of children. How we get there, however, is a whole different question.
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