Cannabis and the Constitution

The end of prohibition may be the beginning of new constitutional frontiers

Cannabis and the Constitution

On April 13, 2017, the federal government tabled legislation designed to end nearly a century of prohibition on the production, sale and possession of cannabis. The government’s plan is ambitious and would make Canada the first G7 country to legalize and regulate cannabis. 

The government’s scheme on cannabis is actually two bills. Bills C-45 (the “Cannabis Act”) and C-46 (an Act amending the Criminal Code). The Cannabis Act would create a regime governing the legality of possession and sale of cannabis, the licencing of producers, and rules on how cannabis may be advertised. The provinces and territories would be responsible for setting up a legislative regime for the distribution and sale of cannabis, subject to the minimums set out under the Cannabis Act. Bills C-45 and C-46 would also create new criminal offences for those who provide cannabis to youth and create a system for roadside testing for cannabis impairment and new penalties for all those offences. 

Whether one agrees with the government’s legislation or not, it is a reasonably safe bet that it will result in years of constitutional challenges. 

There is no doubt that the federal government has the power to determine what is criminal and what is not. To be sure, the Bills do set boundaries of criminal behaviour; Parliament was careful enough not to try to directly regulate the sale or distribution of cannabis. It had tried this with alcohol, which resulted in decades of constitutional battles. But, wherever the federal government ventures into “purely” regulation, the more it will be open to constitutional challenge as trenching on provincial jurisdiction over property and civil rights. Recent cases suggest that the criminal law power is not as broad as once thought, particularly where Parliament invokes its power to make laws to protect public health.1 Such laws must be directed to something “inherently” harmful. While the government has tried to make the case that cannabis is just that, one can expect a challenge to the apparent contradiction that if cannabis is not harmful enough for a total prohibition, how can such activities justify a regulatory regime?

Even though the federal government avoided trying to regulate the sale and distribution of cannabis, this does not mean there will not be any friction between the federal and provincial schemes. The provinces are entitled to restrict sales or raise the minimum age for use and possession. A coming constitutional battle may involve the provinces either trenching on the federal criminal scheme or enacting laws that frustrate the Cannabis Act’s purpose or are in conflict with its rules. 

Beyond federalism issues, Bills C-45 and C-46 could also present Charter issues. To name just two examples, under the Bills, police may demand a roadside saliva sample to test for cannabis, which could then support a reasonable suspicion of impairment and further testing, which raises issues under section 8 of the Charter. The Cannabis Act also contain restrictions on advertising to children. The devil will be in the details here, and the regulations on advertising have yet to be developed. A restrictive regime, like the one for tobacco, may encourage the cannabis industry to bring a challenge against these rules as infringing on commercial expression. 

The breadth of the legislation and the coming regulations mean that there is a potential for many more legal challenges. For constitutional-law observers, this is an exciting prospect as a formally “yes” or “no” question of prohibition has become an expansive frontier of constitutional law and policy.

 1 Reference re Assisted Human Reproduction Act, 2010 SCC 61 |