Health Protection Branch

3. Federal and Provincial Bases For Cannabis Control

There are four heads of power which might be invoked in support of federal cannabis legislation: the criminal law power s. 91(27); the trade and commerce power s. 91(2); the general power in the preamble to section 91; and the treaty-implementing power s. 132.

The courts have broadly defined and applied Parliament's criminal law power. It encompasses legislation prohibiting conduct with penal consequences, provided the legislation serves a typically criminal public purpose. In In The Matter Of A Reference As To The Validity Of Section 5(A) Of The Dairy Industry Act, R.S.C. 1926, Chapter 45, [1949] S.C.R. 1, at 50, Rand J. stated that "public peace, order, security, health, [and] morality" were "the ordinary though not exclusive ends" of the criminal law.⁶ The protection of health from injurious substances and the prevention of adulteration have been specifically upheld as valid criminal law goals.⁷

Parliament's constitutional authority to enact narcotics legislation under its criminal law power was established more than fifty years ago in Ex p. Wakabayashi. Ex p. Lore Yip, [1928] 3 D.L.R. 226 (B.C.S.C.). The present federal cannabis legislation is also based on the criminal law power and is constitutionally unassailable. Clearly, Parliament could substantially modify its present cannabis control regime. For example, Parliament could repeal its general cannabis possession prohibition and enact valid criminal legislation prohibiting possession and/or consumption in public, possession by minors, possession of stipulated cannabis products such as hash oil, or possession in the passenger section of an automobile.

Rather than repealing the present possession laws, the federal government could create limited exceptions to the existing control regime. These types of exceptions are not an uncommon feature of federal criminal legislation.⁸ In Morgentaler v. The Queen [1975], 53 D.L.R. (3d) 161, at 169 (S.C.C.), Laskin C.J.C. stated that "Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation." Although this statement was perhaps too broad and was not central to the decision, Parliament's power to create limited exceptions to general criminal prohibitions appears well established.⁹ Provided the exception is an integral part of a bona fide criminal law package, and not merely a colourable attempt to encroach on provincial power, it should be upheld as valid. For example, Parliament could maintain the present general cannabis prohibition but exempt from liability those in possession of less than 30 grams, or those in possession in a private place.

It has also been held that Parliament may regulate aspects of a trade or behaviour under its criminal law power, if such regulation is necessarily incidental to a criminal legislation which serves bona fide criminal law purposes. In Ex p. Wakabayashi. Ex p. Lore Yip, [l928] 3 D.L.R. 226 (B.C.S.C.), provisions of the Opium and Narcotic Drug Act, 1923 (Can.) c. 22 as am., which affirmatively authorized the licensed sale and distribution of restricted drugs, were upheld as valid. It is important to emphasize that these sections empowered individuals to engage in an activity, rather than merely exempting them from criminal liability. The judge distinguished several cases which had held that similar regulatory provisions in other federal criminal acts were invalid. Instead, he stressed that the provisions in this case were necessarily incidental to the operation of the federal criminal drug law. The fact that this criminal legislation created a federal right to trade in drugs did not trouble him. Similar regulatory authority is contained in current federal criminal enactments including the Food and Drugs Act, R.S.C. 1970, c. F-27 and the Narcotic Control Act, R.S.C. 1970, c. N-l.¹⁰

The courts have restricted Parliament's regulatory authority under its criminal law power to bona fide criminal law purposes in order to prevent federal encroachment on provincial jurisdiction over property and civil rights in the provinces s. 92(13). Federal attempts to establish broad regulatory control of retail markets and various trades in the provinces have generally failed.¹¹ The more elaborate and extensive the federal criminal regulatory scheme is, the more likely it is that it will be declared invalid.¹² Federal criminal legislation providing comprehensive control over the production, distribution, and consumption of cannabis would probably be viewed as colourable criminal law — that is invalid legislation which bears the trappings of criminal law, but which in fact deals with intraprovincial trade, a matter within the exclusive competence of the provinces by virtue of section 92(13).¹³ The fate of a more modest federal regulatory scheme governing limited aspects of cannabis possession would be difficult to predict. If such provisions were enacted as an exception to a broad criminal cannabis prohibition, it might well be viewed as necessarily incidental to the federal criminal drug law. The issue is contentious and would likely turn on the exact scope and wording of the regulating sections.

The second constitutional basis for federal cannabis legislation is Parliament's trade and commerce power, s. 91(2). Under this power Parliament may tax, regulate and even prohibit the importation of any commodity.¹⁴ The courts have narrowly construed s. 91(2), confining federal jurisdiction to international and interprovincial trade.¹⁵ Federal legislation affecting intraprovincial trade has only been upheld when such control was necessarily incidental to the regulation of international or interprovincial trade.¹⁶ The courts would likely not accept that federal regulation of the retail cannabis trade is necessarily incidental to control of the international or interprovincial aspects of the trade.¹⁷

Federal liquor licensing legislation provides an appropriate example of the limits of Parliament's trade and commerce power. In 1883, Parliament enacted the Liquor License Act, 1883, 46 Victoria, c. 30 as am. by 47 Victoria, c. 32, establishing a complex regulatory system and a prohibition against the sale of liquor by unlicenced vendors. The Supreme Court of Canada held the act to be invalid to the extent that it controlled retail licensing and distribution in the provinces.¹⁸ The principle established in this case has usually been followed.

The preamble to section 91 of the B.N.A. Act authorizes Parliament to enact laws for the peace, order, and good government of Canada. The "P.O.G.G." clause, as it has been called, has been subject to varying judicial interpretations during the last hundred years. The "gap test" provides that the P.O.G.G. clause is a residual power enabling Parliament to legislate on areas that do not come within the heads of section 92.¹⁹ Since cannabis control legislation clearly falls within several heads of section 92, the "gap test" is inappropriate.²⁰

The courts have held that a subject matter originally within provincial jurisdiction might become of such national concern as to bring it within Parliament's P.O.G.G power.²¹ There have been several competing tests of what constitutes a matter of national concern.²² Regardless of which test or tests are adopted, it would be difficult to argue that cannabis use is a matter of national concern, particularly since recent legislative initiatives are predicated on the view that cannabis is not as serious a problem as previously thought.²³

The fourth possible basis for federal cannabis control is Parliament's treaty-implementing power in section 132 of the B.N.A. Act. Since Canada, as a colony could not enter into treaties in its own right, section 132 granted Parliament power to implement treaties between the British Empire and foreign states. Canada became an autonomous dominion in the 1920s, and began entering into treaties on its own behalf. Nevertheless, it was held that section 132 did not authorize Parliament to implement Canadian treaties.²⁴ Consequently, Parliament could not likely base cannabis legislation on Canada's status as a signatory to the Single Convention on Narcotic Drugs 1961. [Recent judicial discussion suggests that Parliament may have the power to implement Canadian treaties by virtue of the P.O.G.G. clause.²⁵] The power to enact legislation implementing a Canadian treaty resides in that level of government which has constitutional jurisdiction over the class of subjects within which the treaty falls.²⁶

A related issue is the effect of Canada's treaty obligations on Parliament's legislative authority. It has been established that Parliament may enact any legislation within its constitutional competence. The fact that such legislation violates Canada's treaty obligations may attract international criticism and even sanction, but it has no effect on the law's constitutional validity.²⁷

In summary, Parliament may use its criminal law power to enact a broad range of cannabis laws provided such legislation serves a traditional criminal law purpose. Parliament's trade and commerce power provides a much narrower basis for cannabis legislation, and its P.O.G.G. and treaty powers could not be invoked for this purpose.