Court of Appeal of Quebec

Procureur général du Québec c. Murray-Hall

200-09-010109-194

Thibault, Pelletier, Rancourt

Appeal from a judgment of the Superior Court declaring sections 5 and 10 of the Cannabis Regulation Act (CQLR, c. C-5.3) unconstitutional. Allowed.

The appellant submits that the trial judge erred in finding that sections 5 and 10 of the Cannabis Regulation Act, which prohibits the possession and cultivation of cannabis plants for personal purposes, falls under the exclusive jurisdiction of the Parliament of Canada over criminal law.

Analyzing the constitutionality of a law is two-stage process. At the characterization stage, the Court finds that the trial judgment attributes to sections 5 and 10 the autonomous and independent purpose of prohibiting the personal cultivation of cannabis. That prohibition is instead intended to implement one of the incidental means required to ensure that the sales monopoly granted to the Société québécoise du cannabis, the legislature’s preferred means to deal with the harmful effects of cannabis on health, is effective.

At the classification stage, the Court found that the reasons raised at trial to reject the application of the double aspect theory are incorrect. That theory applies when legislation deals with a subject matter that has both a provincial and a federal aspect, as in this case. Parliament decriminalized the possession of a limited quantity of cannabis to minimize the role of organized crime in this area, while the provincial legislature has a parallel objective, which is to effectively control access to cannabis.

Furthermore, the Court does not accept the respondent’s argument that the impugned provisions be declared of no force or effect under the doctrine of federal paramountcy to the extent that they frustrate the purpose of the federal law. In this case, sections 5 and 10 of the Cannabis Regulation Act fall within the broad plenary jurisdiction of criminal law and may be interpreted in a manner consistent with the principle of cooperative federalism. Furthermore, jurisdiction over criminal law grants Parliament the right to prohibit, not authorize, behaviour.

Last, the federal law does not limit the National Assembly’s power to prohibit private cannabis cultivation as a means of preventing and reducing cannabis harm to protect the health and security of the public.

Legislation interpreted: ss. 5 and 10 of the Cannabis Regulation Act

Text of the decision: Http://citoyens.soquij.qc.ca

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