Health Protection Branch

Appendix B

The Canadian constitution limits the federal and provincial governments’ legislative response to cannabis. In this paper we will examine the impact of these constitutional restrictions on the federal and provincial government's possible legal options. The following analysis is concerned exclusively with the constitutionality of various alternatives and not with their substantive merit or political appeal. We are examining what each level of government could do assuming its legislation was challenged. While this approach defines the possible alternatives, it suggests that such matters are usually litigated. However, many contentious constitutional issues are resolved through federal-provincial negotiations and cooperative legislation. The courts’ tendency to uphold the constitutionality of legislation has provided further impetus to settle differences through discussion.

Before beginning the analysis of the various legislative alternatives, it is necessary to provide a summary of some basic principles of Canadian constitutional law. The rest of the paper is divided into two sections. In the first, we examine the federal and provincial governments' constitutional bases for cannabis legislation and the feasibility of cooperative federal-provincial control. The second section deals with specific aspects of federal legislative authority including Parliament's power to create non-criminal offences, to control the dissemination of criminal records in the hands of provincial officials, and to confiscate cannabis in the absence of a criminal offence of possession.