Health Protection Branch

Three heads of legislative power could arguably be used to support provincial cannabis legislation: the power over property and civil rights in the provinces s. 92(13); the public health power s. 92(7); and the power to make laws in relation to matters of a merely local or private nature in the provinces s. 92(16). Before examining provincial jurisdiction, several preliminary issues must be discussed.

Unlike Parliament, the provincial legislatures do not have an independent power to enact penal provisions. Rather, section 92(15) allows the provinces to create offences in order to enforce valid legislation enacted pursuant to one of their other enumerated heads of power. Thus, provincial penal enactments must serve bona fide provincial legislative purposes. It is often difficult to distinguish between valid provincial statutes containing ancillary penal provisions and colourable provincial legislation which is invalid because it is in essence criminal law. In recent years, the courts have tended to take a liberal view of provincial penal legislation.²⁸

Another major difference between federal and provincial penal powers is the legal significance of a conviction. Unless otherwise provided, the Criminal Code, R.S.C. 1970, c. C-34 applies to a violation of any penal provision of a federal act.²⁹ In effect, all such violations are crimes and result in the creation of a "criminal record." Since a violation of a provincial penal statute is an offence and not a crime, provincial offenders do not, in a strict legal sense, have a criminal record — despite the fact that official records are maintained and the sanctions imposed may be severe. The most important difference between a conviction for a federal crime and a provincial offence stems from the collateral punitive consequences that often result from the former.³⁰

Finally, it should be noted that valid provincial legislation will not be given legal effect if it is inconsistent with a valid federal enactment on the same subject. The federal law is paramount and the provincial law is rendered inoperative to the extent of the inconsistency.³¹ Unfortunately, this distinction between validity and paramountcy was blurred in the three most relevant cases dealing with provincial drug laws.³² As a result, the caselaw provides little guidance in determining the bounds of valid provincial drug legislation.

As indicated earlier, the provincial power to enact legislation in relation to property and civil rights in the province includes the power to control intraprovincial trade. The provincial regulatory and licensing schemes governing alcohol production, pricing, distribution and consumption are based on this head of power.³³ Therefore provincial regulatory control over cannabis would likely be valid on the same basis. As in the case of alcohol, the provinces' regulatory responses to cannabis would vary.

The provinces probably could not rely solely on their jurisdiction over intraprovincial trade to prohibit cannabis outright. Such a statute might be viewed as colourable provincial legislation which is in essence criminal law, and thus invalid.³⁴ In any event, a province could severely restrict, and perhaps, all but prohibit the cannabis trade by carefully drafting stringent production, distribution, pricing and consumption provisions.

Section 92(7), which empowers the provinces to enact legislation regarding health institutions, has been interpreted to include all public health matters not specifically assigned to Parliament.³⁵ The caselaw and existing provincial statutes suggest that the provincial health power encompasses a broad range of health-related legislation, such as confiscation of property which threatens public health, control of contagious diseases, food inspection, environmental health, mental illness and health insurance.³⁶

The regulation and even prohibition of non-medical drug use appears to fall within the provincial health authority. Yet, there is little caselaw on point. Despite their complexity, the provincial liquor prohibition cases are the most analogous. Initially, the courts held that the provinces could prohibit alcohol as a "local evil,"³⁷ under section 92(16), but the Supreme Court later rejected this interpretation of the section.³⁸ Therefore the Le Dain Commission stated that the provincial alcohol cases must be viewed as based on the provincial jurisdiction over public health. The Commission concluded that the provinces have a similar jurisdiction over non-medical drug use:

The court in Regina v. Synder and Fletcher [1967], 61 W.W.R. 112 (Alta. S.C.), adopting a line of reasoning similar to that of the Le Dain Commission, held that a prohibition against the manufacture, distribution, and possession of LSD in Alberta's Public Health Act S.A. 1967, c. 63, s. 42, was valid. Despite some confusion in the case between the issues of validity and paramountcy, the judge clearly stated that the non-medical use of LSD was a health problem which might legitimately be addressed by the provinces.

The following year, a similar prohibition against LSD possession in British Columbia's Health Act, R.S.B.C. 1960, c. 170 as am. by 1967, c. 21, s. 4, was found to be invalid.⁴⁰ This LSD prohibition was part of a legislative package which included a cannabis prohibition. The British Columbia Court of Appeal felt the latter was invalid, as it was a clear invasion of the criminal law field. The LSD prohibition was held to be invalid because it was linked to the invalid cannabis legislation. Again the issues of validity and paramountcy appear to have been blurred. If the LSD prohibition had been carefully drafted in terms of health concerns, the result might have been different.

Although the caselaw is confusing, the general conclusion reached by the Le Dain Commission appears to be correct. A carefully drafted provincial cannabis prohibition, which clearly reflects concern for public health, ought to be upheld.

Section 92(16) empowers the provinces to make laws in relation to matters of a merely local or private nature in the province. As indicated, this section has been subject to varying judicial interpretations. The more recent cases suggest that section 92(16) will not sustain provincial penal legislation designed to suppress a local evil or enforce morality.⁴¹ In light of these cases, and the Le Dain Commission's interpretation of the early provincial alcohol prohibition cases, section 92(16) does not appear to be an appropriate basis for provincial regulation or prohibition of non-medical drug use.

In summary, the provinces could regulate the cannabis trade by virtue of their jurisdiction over either property and civil rights in the provinces, or their public health power. It appears, however, that they could only prohibit cannabis by enacting carefully drafted legislation under their public health authority.