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|Cannabis Control Policy|
Cannabis Control Policy: A Discussion Paper
Health Protection Branch
Department of National Health and Welfare
The Doctrine of Paramountcy and Concurrency
Since both the federal and provincial governments have the power to enact valid cannabis legislation, it is necessary to determine how conflicts between their enactments would be resolved. As indicated, the doctrine of paramountcy provides that if valid federal legislation and valid provincial legislation on the same subject are inconsistent, the federal law will prevail. The provincial statute, while not invalid or repealed, is rendered inoperative to the extent of the inconsistency. Where there is no inconsistency both laws operate concurrently.42
Two alternative tests of inconsistency have been articulated by the courts: the "negative implication test" and the "express contradiction" test.43 Mr. Justice Cartwright provides a clear example of the negative implication test in his dissenting judgment in O'Grady v. Sparling,  S.C..R. 804, at 820-821:
...when Parliament has expressed in an act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall be so punishable. By necessary implication the Act says not only what kind or degree of negligence shall be punishable but also what kinds or degrees shall not.
The test permits the court to infer from the statute its purpose and to render inoperative provincial legislation which would conflict with these implicit federal goals. The use of this test would increase the number of inconsistencies and result in more provincial legislation being rendered inoperative.
In recent years the majority of the Supreme Court has rejected the negative implication test in favour of the much narrower express contradiction test.44 Under the latter, an inconsistency arises if the provincial legislation expressly contradicts the federal, rendering it impossible for a person to obey both laws.45 Thus, a provincial statute which is virtually identical to a federal law raises no paramountcy issue because there is no inconsistency,46 even though theoretically an individual may be convicted twice for one act.47 The fact that a provincial law imposes a stricter standard of conduct than a federal enactment does not violate the express contradiction test. The courts have reasoned that in such situations a person may obey both laws by complying with the stricter of the two.
The express contradiction test was examined in Ross v. Registrar of Motor Vehicles,  S.C.R. 5.48 Following a conviction for impaired driving under the Criminal Code R.S.C. 1970, c. C-34 as am. 1972, c. 13, s. l8, Ross was prohibited from driving except during working hours. Subsequently, his license was unconditionally suspended under the provincial highway traffic act clearly defeating the goals of the federal law. The Supreme Court held that there was no express contradiction between the two statutes. The provincial act did not take away a federally-created right, but merely augmented the federal sanction. Ross could satisfy the sentences imposed under both laws by complying with the more onerous provincial sanction. It appears that the decision might have been different if the federal legislation expressly empowered the sentencing judge to authorize driving under certain circumstances notwithstanding a general driving prohibition in the federal law.49 In this case it could be argued that the provincial provision would negate a federally-created right. Ross would be expressly authorized to drive by federal law, but expressly prohibited by the provincial statute.50
The application of the paramountcy doctrine to the field of cannabis legislation is contentious. The judicial analysis of the express contradiction test has left several issues unresolved. Because of the narrow definition of inconsistency, there have been few cases in which the courts have found an express contradiction, and therefore few examples of its application.
The drug cases in which the paramountcy doctrine has arisen provide little guidance. In Dufresne et al. v. The King, , 19 C.C.C. 414 (Que. K.B.) the judge concluded that a provincial drug law was rendered inoperative because it imposed liability in broader circumstances than the federal act. His reasoning appears to be based on the negative implication test. In Regina v. Snider and Fletcher, , 61 W.W.R. 112 (Alta. S.C.) the validity of a provincial LSD prohibition was upheld, and the paramountcy doctrine only arose in relation to a subsidiary point. In his brief discussion of the matter, the judge apparently confused the questions of validity and paramountcy. The following year, a similar British Columbia LSD provision was held to be invalid. It was part of a legislative package containing a cannabis prohibition. Without explaining why, the court stated that the cannabis prohibition was a clear invasion of Parliament's criminal law power, and held the LSD prohibition to be similarly tainted. It is possible to infer that the provincial cannabis prohibition was struck down merely because it duplicated the federal law.
While the three drug cases are confusing, they appear to support the negative implication test of inconsistency. Since the majority of the Supreme Court specifically rejected this test, the three drug cases are not reliable precedents. The following analysis is based on the assumption that future conflicts between provincial and federal cannabis legislation will be resolved according to the express contradiction test.
Whether provincial legislation expressly contradicts a federal enactment depends on the exact wording of the statutes and the courts' interpretation of the Ross case.51 The following examples are intended to provide an outline of how such issues might be resolved.
The provinces could probably enact valid cannabis legislation with onerous sanctions pursuant to its public health power, notwithstanding the present federal prohibition. Since mere duplication does not amount to inconsistency and the provincial penalties would augment the federal sanctions, there would be no express contradiction. Both laws would operate concurrently. The provinces would have little reason to pursue this course of action, unless Parliament drastically reduced the present sanctions for possession of cannabis.
The paramountcy issue will likely arise if Parliament partially or totally repeals its present cannabis possession prohibition and the provinces respond by enacting provincial cannabis legislation. If Parliament replaced the current possession prohibition with a provision stipulating that possession of 30 or more grams of cannabis is an offence, the provinces might seek to prohibit possession of less than 30 grams. Since a person could obey both laws by complying with the stricter provincial enactment, there would be no express contradiction and both laws would operate concurrently.
Even if Parliament were to enact legislation stating that possession of 30 grams or more of cannabis was an offence and that possession of less than 30 grams was not an offence, the provinces could still prohibit possession of less than 30 grams. This situation is parallel to that in the Ross case. Parliament's failure to prohibit an act does not create a federally-guaranteed right to engage in that activity. As in the Ross case, the provincial cannabis statute would likely be viewed as merely augmenting the federal legislation. Since compliance with one act does not involve breach of the other there would be no express contradiction and both laws could operate concurrently.
The result would be less clear if Parliament specifically authorized possession of less than 30 grams of cannabis as an express exception to a general cannabis possession prohibition.52 As indicated earlier, Parliament's power to authorize conduct under its criminal law power is limited. A federal criminal statute empowering someone to possess cannabis might be struck down as invalid, unless it was narrow in scope and carefully drafted. Assuming the federal legislation was valid then a provincial cannabis prohibition would clearly extinguish a federally-created right to possess under 30 grams. Nonetheless, a person could comply with both laws by obeying the stricter of the two. The Ross case did not address this situation. The strong dissents and the wording of the majority judgment suggest that a provincial prohibition and a federal authorization would expressly contradict one another.53 If they did not, it would be difficult to imagine how an express contradiction could ever arise between substantive penal provisions. Therefore, it would appear that the provincial prohibition would expressly contradict the federal authorization. The federal legislation would be paramount, and the provincial cannabis prohibition would be rendered inoperative.
An express contradiction might also arise if the enforcement of the federal cannabis legislation conflicted with the enforcement of the provincial cannabis law. If Parliament was intent on preventing the provinces from entering the field, it could probably draft procedural provisions which would almost certainly conflict with the enforcement of a provincial cannabis offence. For example, the federal cannabis legislation could direct that a peace officer shall not arrest or detain any person for possession of cannabis unless the quantity involved is 30 grams or more. It could also provide for the confiscation of lesser quantities, but expressly prohibit the officer from recording the individual's name, or other personal information except as provided for by regulation. The exact wording of such procedural provisions would depend on the nature of the substantive criminal law.
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