Health Protection Branch

4. Specific Constitutional Issues Related to Federal Cannabis Legislation

Several American states have "decriminalized" cannabis possession by transferring the relevant provisions from their criminal codes to their regulatory offence codes. Cannabis possession is not legalized, but rather becomes a non-criminal offence subject to punishment like a violation of a provincial highway traffic act. While a record of the incident may be officially recorded, the offender would not have a criminal record. This approach is available to the state governments because they have the constitutional power to create both criminal and non-criminal offences. As appealing as this model might be, Parliament appears to lack the constitutional authority to implement it.

Federal authority to enact cannabis legislation is, and will likely remain, based on its criminal law power. It is difficult to see how Parliament could create a non-criminal offence under its criminal law power given that the courts have defined a crime as an act prohibited with penal consequences. If it is to be upheld as a valid criminal enactment, the cannabis legislation must serve traditional criminal public purposes, and its breach must be subject to penal consequences. It may be argued that by definition alone, Parliament could not validly create a non-criminal cannabis offence.

In any event, the Interpretation Act R.S.C. 1970, c. I-23, s. 27 in effect renders a violation of any federal statute a criminal offence subject to all of the provisions of the Criminal Code R.S.C. 1970, c. C-34. Thus, parking on federal property in violation of the Government Property Traffic Act R.S. 1970, c. G-l0 constitutes a criminal offence. The fact that the legislation provides for ticketing the vehicle and entering a conviction upon payment of a set fine, does not negate the criminal nature of the offence, but merely relates to the criminal procedures and sanctions.

There is no reliable caselaw directly on point. In Toronto Railway Company v. The King, [1917], 29 C.C.C. 29 (P.C.) the court suggested, in the course of a very complex judgment, that Parliament could create a non-criminal offence. However, the decision appears to be based on a fundamental error. The court failed to recognize that Canada, unlike Great Britain, is a federation with a clear division of legislative authority between Parliament and the provinces. This error was detailed in Rex v. City of Victoria, [1920], 33 C.C.C. l08 (B.C.C.A.) and the Toronto Railway Company case has not been followed on this issue.

Although Parliament cannot create a non-criminal offence, the provinces can clearly do so. If the federal government is intent on cannabis possession being made a non-criminal offence, it could agree to repeal its current criminal prohibition on condition that the provinces enact a possessional offence. As indicated a violation of a provincial penal provision may be made punishable by a fine or imprisonment, but it is not a crime and such offenders do not, in a strict legal sense, have a criminal record.