Health Protection Branch

Jurisdiction. Both federal and provincial governments have the constitutional authority to enact valid cannabis legislation. Parliament's authority can be founded on its criminal law power, s. 91(27) of the British North America Act, 1867 (B.N.A. Act), and its trade and commerce power, s. 91(13) of the B.N.A. Act. Under its criminal law power, Parliament can enact legislation for the promotion of public order, safety, morals, and health, provided the legislation contains penal sanctions. If Parliament repealed the present cannabis prohibitions, it could still invoke its criminal law power to enforce standards of quality and purity for the drug. However, Parliament could not, in the name of criminal law, establish a regulatory scheme for the retail licensing and distribution of cannabis. Such a statute would be struck down as "colourable" criminal legislation, i.e., as legislation which bears the trappings of the criminal law, but which in fact, deals with matters assigned exclusively to the provinces. Federal legislation regarding the retail distribution of cannabis would almost certainly be held to invade the provincial power to control intraprovincial trade — a subject reserved for the provinces by virtue of their authority over property and civil rights (s. 92(13) of the B.N.A. Act).

Parliament has some constitutional jurisdiction over trade and commerce, but this head of power has been judicially defined to include only interprovincial and international trade. While Parliament could use this power to regulate, tax and even prohibit importation of cannabis into Canada, it could not, without use of the criminal law power, control cultivation within a province or intraprovincial cannabis sales. If Parliament relied exclusively on its trade and commerce power, each province could enact their own cannabis regulatory schemes.

The provinces have three constitutional bases for cannabis legislation: the provincial health power, s. 92(7), the provincial trade and commerce power, s. 92(13), and the provincial power over matters of merely a local or private nature in the province, s. 92(16). Just as Parliament cannot usurp provincial control over intraprovincial trade by enacting colourable criminal legislation, the provinces cannot, in the guise of health or intraprovincial trade, enact what is in essence criminal law. The provinces can Impose penalties for violation of provincial statutes, but these statutes must serve purposes constitutionally assigned to the provinces. The penalties for such violations may be as severe as those prescribed by federal statutes, but these provincial violations are defined as "offences," not "crimes," and such offenders do not have "criminal records."

Since Parliament and the provinces both have constitutional power to enact valid cannabis legislation, whether any provincial legislation is operative depends on the extent and nature of any federal cannabis legislation and the constitutional doctrines of paramountcy and concurrency. The doctrine of paramountcy provides that where valid federal and provincial legislation on the same subject conflict, the federal statute prevails, rendering the provincial legislation "dormant" or "inoperative" to the extent of the conflict. Where there is no inconsistency or repugnancy between the federal or provincial laws, both operate concurrently. The problem, then, is to determine what constitutes inconsistency or repugnancy.

Although the issue is contentious, it appears that the Supreme Court of Canada has adopted a test of "operating incompatibility" which requires that there be an express contradiction between the federal and provincial statutes. The test of such incompatibility is usually expressed as the impossibility of obeying one statute without violating the other. Thus, if Parliament were to pass legislation stating that it is an offence to possess more than a specified amount of cannabis, the provinces would be likely to enact legislation prohibiting possession of less than the specified amount as there would be no operating inconsistency between these two acts. Should Parliament wish to prevent provincial possessory legislation, it would have to expressly state that it is not an offence to possess less than the stipulated amount.

If Parliament, by modifying its cannabis legislation, vacated part of the cannabis control field, each province could enact its own complementary cannabis statutes. In the case of a complete federal withdrawal, one province could establish a government retail distribution system akin to a Liquor Control Board. Another province, however, could prohibit cannabis possession, cultivation and distribution under its health power. Once having vacated the field, Parliament could not prevent these variations in provincial responses. It is possible, however, that Parliament could negotiate with the ten provinces, offering to withdraw in return for provincial legislation which met its policy objectives.