Supreme Court of Canada
Appeal Heard: September 15, 2022 Judgment Rendered: April 14, 2023 Docket: 39906
Between: Janick Murray‑Hall Appellant and Attorney General of Quebec Respondent — and — Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Canadian Association for Progress in Justice, Canadian Cancer Society, Cannabis Amnesty, Cannabis Council of Canada and Quebec Cannabis Industry Association Interveners
Official English Translation
Coram: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 106) Wagner C.J. (Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ. concurring)
* Brown J. did not participate in the final disposition of the judgment.
Parties
Janick Murray‑Hall — Appellant
v.
Attorney General of Quebec — Respondent
and
Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Canadian Association for Progress in Justice, Canadian Cancer Society, Cannabis Amnesty, Cannabis Council of Canada and Quebec Cannabis Industry Association — Interveners
Indexed as: Murray‑Hall v. Quebec (Attorney General)
2023 SCC 10
File No.: 39906.
2022: September 15; 2023: April 14.
Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.
on appeal from the court of appeal for quebec
Headnote
Constitutional law — Division of powers — Double aspect doctrine — Federal paramountcy — Possession and cultivation of cannabis plants in dwelling‑house — Parliament enacting legislation prohibiting individuals from possessing or cultivating more than four cannabis plants at home — Quebec legislature enacting legislation regulating cannabis that includes provisions completely prohibiting possession and cultivation of cannabis plants at home — Whether provisions of Quebec legislation prohibiting possession and cultivation of cannabis plants at home are constitutionally valid in light of division of powers — If so, whether they are operative under doctrine of federal paramountcy — Constitution Act, 1867, ss. 91(27), 92(13), (16) — Cannabis Regulation Act, CQLR, c. C‑5.3, ss. 5, 10.
In June 2018, Parliament passed the Cannabis Act ("federal Act"), which decriminalized the recreational use of cannabis. This Act prohibits the possession of cannabis plants and the cultivation of such plants for personal purposes, but it exempts the possession and cultivation of no more than four plants from these prohibitions. At the same time, the Quebec legislature introduced its own scheme to regulate cannabis by passing a bill that, among other things, created the Société québécoise du cannabis ("SQDC"), which has a monopoly on the sale of cannabis in Quebec. It also enacted the Cannabis Regulation Act ("provincial Act"), ss. 5 and 10 of which completely prohibit the possession of cannabis plants and the cultivation of such plants for personal purposes in a dwelling‑house. These prohibitions are accompanied by fines.
In October 2018, M brought an action in the Superior Court on his own behalf and on behalf of all persons who, in Quebec, are liable to be prosecuted for possession of a cannabis plant in their dwelling‑house. He argued that ss. 5 and 10 of the provincial Act fall within the federal criminal law power under s. 91(27) of the Constitution Act, 1867 and outside the heads of power assigned to the provinces. He sought a declaration from the Superior Court that these provisions are ultra vires or, in the alternative, that they are of no force or effect pursuant to the doctrine of federal paramountcy. The Superior Court declared ss. 5 and 10 of the provincial Act constitutionally invalid. The Court of Appeal set aside the trial judgment and affirmed the constitutional validity of ss. 5 and 10 on the basis that they are within the powers conferred on the provinces by s. 92(13) and (16) of the Constitution Act, 1867. It also found that the impugned provisions are operative.
Held: The appeal should be dismissed.
Sections 5 and 10 of the provincial Act are a valid exercise by the Quebec legislature of the powers conferred on it by s. 92(13) and (16) of the Constitution Act, 1867. Further, the provisions do not frustrate the purpose of the federal legislation and are therefore operative.
To decide whether a law or some of its provisions are constitutionally valid under the division of powers, courts must first characterize the law or provisions and then, on that basis, classify them by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867.
At the characterization stage, the pith and substance of the law must be determined by looking at its purpose and effects. To analyze purpose, courts rely on intrinsic evidence, that is, the actual text of the law, as well as extrinsic evidence, such as parliamentary debates. In looking at the effects of the law, courts consider both its legal effects (those related directly to the provisions of the law itself) and its practical effects (the side effects arising from its application). Where very specific provisions of a law that are alleged to be an integral part of a regulatory scheme are being challenged, courts begin by characterizing the provisions rather than considering the validity of the law as a whole. However, this does not mean that the provisions must be read in isolation. Reading and analyzing the impugned provisions in the context of the regulatory scheme into which they are integrated is crucial in distinguishing the purpose of the law from the means chosen to achieve it.
In this case, it is essential to analyze ss. 5 and 10 of the provincial Act in light of their context and not just their wording. With regard to the intrinsic evidence for analyzing purpose, an overview of the provincial Act reveals a broad regulatory scheme that includes the creation of a state monopoly, granted to the SQDC, to oversee each step leading up to the purchase of cannabis by citizens in order to protect the health and security of the public. Sections 5 and 10 do not have the separate and independent objective of prohibiting the possession and cultivation of cannabis plants for personal purposes. The prohibitions themselves are one means, among a broad range of measures, for achieving the provincial Act's public health and security objectives, since they act as strong incentives for the integration of consumers into the legal cannabis market. With regard to extrinsic evidence, the remarks made by the members of the Quebec legislature confirm that the prohibitions help to ensure that consumers will buy from the SQDC. The impugned provisions do not represent a colourable attempt to re‑enact the prohibitions against possessing and cultivating cannabis repealed by Parliament, given the complete lack of evidence of any "improper" legislative purpose. As for the effects of the impugned provisions, their practical consequence is to prevent citizens from possessing and cultivating cannabis plants for personal purposes and to force consumers to buy from the SQDC. With regard to legal consequences, the provisions prohibit the possession and cultivation of cannabis plants and impose penal sanctions for any violation. Together, the legal and practical effects confirm the conclusion reached from analyzing the intrinsic and extrinsic evidence: the pith and substance of ss. 5 and 10 of the provincial Act is to ensure the effectiveness of the state monopoly on the sale of cannabis in order to protect the health and security of the public, and of young persons in particular, from the harm caused by this substance.
At the classification stage, what must be determined is whether the impugned provisions fall within the federal criminal law power under s. 91(27) of the Constitution Act, 1867 or within the powers conferred on the provinces over property and civil rights and matters of a merely local or private nature by s. 92(13) and (16), respectively. In this case, even though ss. 5 and 10 seemingly have the characteristics of criminal law, since they contain prohibitions accompanied by penalties and are backed by a valid criminal law purpose, they should still not be classified under s. 91(27). The partial decriminalization of cannabis by Parliament opened the door to provincial legislative action. In prohibiting the possession and cultivation at home of cannabis plants, the Quebec legislature exercised the power conferred on it by s. 92(15) to enact penal measures in order to enforce an otherwise valid law. Sections 5 and 10, which help to ensure the effectiveness of the state monopoly and thus to protect the health and security of the public, are clearly related to provincial heads of power, because provincial legislative action in the field of public health is grounded primarily in broad and plenary jurisdiction over property and civil rights (s. 92(13)) and residual jurisdiction over matters of a merely local or private nature in the province (s. 92(16)). The intent behind the Quebec legislature's action in the field of health in this case was to regulate, not to suppress a threat or an evil. This is important because health, as a matter not assigned in the Constitution Act, 1867, is an area of overlapping jurisdiction. According to the double aspect doctrine, Parliament and the provincial legislatures may make laws in relation to matters that, by their very nature, have both a federal aspect and a provincial aspect. The regulation of cannabis use has a double aspect, since it may be addressed from the perspective of the criminal law (under s. 91(27)), by suppressing some evil or injurious or undesirable effect upon the public, and from the perspective of health or trade (under s. 92(13) and (16)), by regulating, among other things, the conditions of production, distribution and sale of the substance. Sections 5 and 10 of the provincial Act, which regulate cannabis use from this second, normative perspective, are therefore intra vires the Quebec legislature.
Provisions of a provincial law that are declared constitutionally valid may nonetheless be declared to be of no force or effect under the doctrine of federal paramountcy when (1) there is an operational conflict or (2) the purpose of a federal law is frustrated. In this case, the only question to be answered is whether there is a conflict of purposes, which involves first establishing the purpose of the federal Act and then determining whether the provisions of the provincial Act are incompatible with that purpose.
The purpose of the federal Act is not to create — with a view to reducing illicit activities in relation to cannabis — positive rights to possess and cultivate up to four cannabis plants for personal purposes. Such an interpretation does not reflect the essentially prohibitory nature of the criminal law power and is not supported by the wording of the federal Act. The prohibitions in ss. 5 and 10 of the provincial Act directly address several of the objectives of the federal Act set out in s. 7 of that Act. Moreover, even though Parliament and the provincial legislature have taken different approaches to the self‑cultivation of cannabis, the provincial Act reflects a concern with combating organized crime, just as the federal Act does. The provincial Act's public health and security objectives and its prohibitions in ss. 5 and 10 are therefore in harmony with the objectives of the federal Act, and there is no basis for finding a conflict of purposes.
Cases Cited
Applied: Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188; distinguished: R. v. Morgentaler, [1993] 3 S.C.R. 463; considered: Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6; Schneider v. The Queen, [1982] 2 S.C.R. 112; referred to: Reference re Genetic Non‑Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Westendorp v. The Queen, [1983] 1 S.C.R. 43; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Dupond v. City of Montreal, [1978] 2 S.C.R. 770; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662; Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76.
Statutes and Regulations Cited
Act respecting the Société des alcools du Québec, CQLR, c. S‑13, s. 16.1 para. 1.
Bill 157, An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety‑related provisions, 1st Sess., 41st Leg., 2018, s. 3.
Bill C‑45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, 1st Sess., 42nd Parl., 2018.
Cannabis Act, S.C. 2018, c. 16, ss. 2 "illicit cannabis", 7, 8(1)(b), (e), 9(1)(a)(iv), 12(4), 13(1).
Cannabis Regulation Act, CQLR, c. C‑5.3, ss. 1 para. 1, para. 2, 5, 10, 25, 27, 29, 30, 31 para. 2, 33, 34 to 39, 40 to 42, 44, 45, 56, 57.
Constitution Act, 1867, ss. 91, 92.
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4 to 7.1, Sch. II.
Liquor, Gaming and Cannabis Control Act, C.C.S.M., c. L153, ss. 101.13(1), 101.15.
Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22.
Regulation respecting training on the retail sale of cannabis and information to be communicated to a purchaser in the course of a cannabis sale, CQLR, c. C‑5.3, r. 1, s. 1, Sch. I.
Regulation to determine other classes of cannabis that may be sold by the Société québécoise du cannabis and certain standards respecting the composition and characteristics of cannabis, CQLR, c. C‑5.3, r. 0.1.
Tobacco Control Act, CQLR, c. L‑6.2, ss. 13, 14.4.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 314, 1st Sess., 42nd Parl., June 13, 2018, p. 20875.
Quebec. Assemblée nationale. Journal des débats, vol. 44, no 346, 1re sess., 41e lég., 6 juin 2018, pp. 21972‑73.
Quebec. Assemblée nationale. Journal des débats de la Commission permanente de la santé et des services sociaux, vol. 44, no 189, 1re sess., 41e lég., 21 mars 2018, pp. 22, 35.
Quebec. Assemblée nationale. Journal des débats de la Commission permanente de la santé et des services sociaux, vol. 44, no 191, 1re sess., 41e lég., 27 mars 2018, p. 3.
Appeal
APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Pelletier and Rancourt JJ.A.), 2021 QCCA 1325, [2021] AZ‑51792418, [2021] J.Q. no 10432 (QL), 2021 CarswellQue 13667 (WL), setting aside a decision of Lavoie J., 2019 QCCS 3664, [2019] AZ‑51625540, [2019] Q.J. No. 7561 (QL), 2019 CarswellQue 18400 (WL). Appeal dismissed.
Counsel
Maxime Guérin and Christian Saraïlis, for the appellant.
Patricia Blair and Frédéric Perreault, for the respondent.
Hera Evans and S. Zachary Green, for the intervener the Attorney General of Ontario.
Kathryn Hart and Deborah Carlson, for the intervener the Attorney General of Manitoba.
Jonathan Penner and Robert Danay, for the intervener the Attorney General of British Columbia.
Thomson Irvine, K.C., and Noah Wernikowski, for the intervener the Attorney General of Saskatchewan.
David N. Kamal and Nathaniel Gartke, for the intervener the Attorney General of Alberta.
Olga Redko and Ryan D. W. Dalziel, K.C., for the intervener the Canadian Association for Progress in Justice.
Robert Cunningham and Fady Toban, for the intervener the Canadian Cancer Society.
Ren Bucholz and Annamaria Enenajor, for the intervener Cannabis Amnesty.
Adam Goldenberg and Holly Kallmeyer, for the interveners the Cannabis Council of Canada and the Quebec Cannabis Industry Association.
Reasons for Judgment
English version of the judgment of the Court delivered by
The Chief Justice —
1A few years ago, the federal Parliament passed legislation relating to cannabis. Under that legislation, it is prohibited for an individual to possess or cultivate more than four cannabis plants in the individual's home. The provinces and territories subsequently passed their own legislation to regulate such practical matters as the manner in which cannabis was to be sold and stored. Through a broad legislative initiative that included the creation of a monopoly on the sale of cannabis, the Quebec legislature, for its part, enacted provisions that completely prohibit the possession and cultivation of cannabis plants at home, regardless of the number of plants. What must be determined in this appeal is whether the Quebec provisions are constitutionally valid in light of the division of powers and, if so, whether they are operative under the doctrine of federal paramountcy. For the reasons that follow, I conclude that the impugned provisions are a valid exercise by the Quebec legislature of the powers conferred on it by s. 92(13) and (16) of the Constitution Act, 1867. I also conclude that the impugned provisions do not frustrate the purpose of the federal legislation and are therefore operative.
2In these reasons, I express no opinion on the appropriateness or merits of the approaches adopted by Parliament and the Quebec legislature, respectively. I focus on explaining why two approaches to the self‑cultivation of cannabis — the more "permissive" federal approach and the more "restrictive" Quebec approach — can coexist from a legal standpoint within the Canadian federation.
I. Background
3In 2018, Canada became the second country in the world, after Uruguay, and the very first G7 country to decriminalize the recreational use of cannabis. The decriminalization of this psychoactive substance, also called marijuana, marked a real change in the approach that had been taken in this country for nearly a century. The consumption, possession and sale of cannabis had first been criminalized in 1923, when this substance was added to the list of narcotics banned by the Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22. Many decades later, cannabis was included in the list of controlled substances in Sch. II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA").
4On June 19, 2018, Parliament passed Bill C‑45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, 1st Sess., 42nd Parl. On October 17, 2018, that statute came into force as the Cannabis Act, S.C. 2018, c. 16 ("federal Act"). Decriminalizing the recreational use of cannabis is the central feature of this legislation, which excludes this substance from the application of the criminal prohibitions set out in ss. 4 to 7.1 of the CDSA. The federal Act prohibits the possession of cannabis plants and the cultivation of such plants for personal purposes, but it exempts the possession and cultivation of no more than four plants from these prohibitions. The provisions creating the prohibitions read as follows:
Possession 8 (1) Unless authorized under this Act, it is prohibited (e) for an individual to possess more than four cannabis plants that are not budding or flowering; . . . Production 12 . . . Cultivation, propagation and harvesting — 18 years of age or older (4) Unless authorized under this Act, it is prohibited for an individual who is 18 years of age or older to cultivate, propagate or harvest, or to offer to cultivate, propagate or harvest, (b) more than four cannabis plants at any one time in their dwelling‑house.
5The enactment of the federal Act represents a paradigm shift in the Canadian legal landscape. Canada has moved from a suppression‑based approach to a scheme that gives the provinces responsibility for determining the framework for the sale and distribution of cannabis within their borders. In other words, the provinces are being called upon to make laws, within their fields of jurisdiction, concerning a substance that was previously subject to criminal prohibitions for nearly a century. The statutes and regulations passed by the provinces in parallel with the federal Act primarily establish rules governing the sale of the substance, for example with regard to the location, operation and staff of the stores where the various cannabis products are sold. Much of the provincial legislation also sets out additional restrictions that supplement the federal legislative framework, including with respect to the minimum age required to purchase cannabis, the applicable limit on the possession of this substance and the places where it may be consumed in public.
6On June 12, 2018, the Quebec legislature introduced its own scheme to regulate cannabis when it passed Bill 157, An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety‑related provisions, 1st Sess., 41st Leg. The creation of the Société québécoise du cannabis ("SQDC"), a subsidiary of the Société des alcools du Québec with a monopoly on the sale of cannabis in Quebec, was one of the most important measures. The enactment of the Cannabis Regulation Act, CQLR, c. C‑5.3 ("provincial Act"), was another. The provincial Act contains a broad range of provisions concerning the possession, cultivation, use, transportation, storage, sale and promotion of cannabis in Quebec. The specific provisions of the provincial Act being challenged in this case are ss. 5 and 10, which completely prohibit the possession of cannabis plants and the cultivation of such plants for personal purposes in a dwelling‑house. These prohibitions are accompanied by fines of between $250 and $750, which are doubled for a subsequent offence:
It is prohibited to possess a cannabis plant. Anyone who contravenes the first paragraph commits an offence and is liable to a fine of $250 to $750. Those amounts are doubled for a subsequent offence.
It is prohibited to cultivate cannabis for personal purposes. That prohibition against cultivating cannabis applies, in particular, to the planting of seeds and plants, the propagation of plants from cuttings, the cultivation of plants and the harvesting of their production. Anyone who contravenes the first paragraph by cultivating four cannabis plants or less in their dwelling‑house commits an offence and is liable to a fine of $250 to $750. Those amounts are doubled for a subsequent offence. For the purposes of the third paragraph, "dwelling‑house" has the meaning assigned by subsection 8 of section 12 of the Cannabis Act (S.C. 2018, c. 16).
7Therefore, under ss. 5 and 10 of the provincial Act, the possession and cultivation at home of cannabis plants are subject to penal sanctions in Quebec — just as in Manitoba, which has adopted an approach similar to Quebec's in The Liquor, Gaming and Cannabis Control Act, C.C.S.M., c. L153, ss. 101.13(1) and 101.15.
8On October 25, 2018, the appellant in this Court, Janick Murray‑Hall, brought an action in the Quebec Superior Court on his own behalf and on behalf of all persons who, in Quebec, are liable to be prosecuted for possession of a cannabis plant in their dwelling‑house and who may thus face the penal consequences arising from the provincial Act. He argued that ss. 5 and 10 of the provincial Act fall within the federal criminal law power under s. 91(27) of the Constitution Act, 1867 and outside the heads of power assigned to the provinces. He sought a declaration from the Superior Court that these provisions are ultra vires or, in the alternative, that they are of no force or effect pursuant to the doctrine of federal paramountcy.
II. Judicial History
A. Quebec Superior Court, 2019 QCCS 3664
9On September 3, 2019, the Quebec Superior Court ruled in favour of Mr. Murray‑Hall and declared ss. 5 and 10 of the provincial Act constitutionally invalid.
10To make that finding of invalidity, the court began by characterizing the pith and substance of the impugned provisions as being [translation] "to completely prohibit the personal cultivation of cannabis because it harms the health and security of the public" (para. 51). In the court's view, the absolute nature of the prohibitions and the sense of [translation] "general disapproval" (para. 46) of cannabis use revealed by the legislative debates pointed to the conclusion that the impugned provisions are not simply intended to protect the health and security of the public. Rather, their purpose is to [translation] "suppress the personal production of cannabis" (ibid.), as the former provisions of the CDSA did. This led the court to find that the impugned provisions are [translation] "colourable". With regard to the argument that the prohibitions established by ss. 5 and 10 are means of achieving the public health and security objectives set out in the provincial Act, the court held that this argument was not supported by the intrinsic and extrinsic evidence or by an examination of the effects of the provisions. In its opinion, [translation] "the prohibitions in ss. 5 and 10 are not means, but rather the very purpose of these provisions" (para. 76).
11The Superior Court continued its analysis of constitutional validity and held that the impugned provisions fall under the federal criminal law power. At the classification stage, the court found that the three prerequisites for valid criminal law are met and that the impugned provisions are similar to the provisions of the CDSA that formerly prohibited the possession and cultivation of cannabis. The court added that the double aspect doctrine does not apply in this case because, given the absolute nature of the prohibitions they contain, ss. 5 and 10 are related solely to the federal criminal law power. Referring to the possibility of limiting the possession and cultivation of cannabis for personal purposes to one, two or three plants, the court noted that [translation] "[i]t is clear that, other than zero plants, the province could have legislated, either for health or for security" (para. 87).
12Finally, the court held that the provisions found to be invalid cannot be saved under the ancillary powers doctrine. They cannot be regarded as sufficiently integrated into the provincial Act, otherwise considered valid as a whole, because the total prohibitions imposed by them were [translation] "not absolutely necessary" (para. 99). In the court's view, the provincial legislature could have achieved its objectives by imposing a stricter limit on the number of plants than the federal Act does rather than by imposing absolute prohibitions.
13Having found ss. 5 and 10 of the provincial Act constitutionally invalid, the court held that it was not necessary to consider whether the provisions are operative. It also denied the request to suspend the declaration of invalidity on the ground that no legal vacuum or chaos would result from its decision.
B. Quebec Court of Appeal, 2021 QCCA 1325
14In a unanimous decision, the Quebec Court of Appeal set aside the trial judgment and consequently affirmed the constitutional validity of ss. 5 and 10 of the provincial Act on the basis that they are within the powers conferred on the provinces by s. 92(13) and (16) of the Constitution Act, 1867.
15At the characterization stage, the court found that the pith and substance of the impugned provisions is to [translation] "put in place one of the means chosen to ensure the effectiveness of the state monopoly granted to the SQDC" (para. 82), a monopoly created to prevent and reduce cannabis harm and to protect the health and security of the public. The purpose of ss. 5 and 10 of the provincial Act, which prohibit possession and cultivation at home, is therefore to steer consumers to the only source of supply trusted by the Quebec legislature. Contrary to what the Superior Court found, the impugned provisions do not have the [translation] "separate and independent objective of prohibiting the personal cultivation of cannabis" (para. 81). In its reasoning, the Court of Appeal stressed the need to consider the provincial Act as a whole rather than reading ss. 5 and 10 in isolation. It also urged caution in analyzing the legislative debates, which in this case did not demonstrate the existence of colourable legislation aimed at morally suppressing the possession and personal cultivation of cannabis as such.
16At the classification stage, the Court of Appeal found that the impugned provisions are related to the provincial powers conferred by s. 92(13) and (16) of the Constitution Act, 1867. It held that this is a proper case for the application of the double aspect doctrine, because the two levels of government are pursuing parallel objectives within their respective fields of jurisdiction. Parliament, it noted, [translation] "is seeking to better control the intrusion of criminal organizations" into the cannabis market by replacing a measure it considers ineffective (total prohibition against possession) with a measure it views as more likely to minimize the role of organized crime (decriminalization of the possession of a limited amount) (para. 93). The provincial legislature, for its part, is trying to ensure effective control over access to cannabis by creating a state monopoly on distribution.
17Having upheld the constitutional validity of the impugned provisions, the Court of Appeal also found that they are operative under the doctrine of federal paramountcy. Addressing the possibility that the purpose of the federal Act is being frustrated, the court rejected Mr. Murray‑Hall's argument that Parliament not only decriminalized home cultivation but actually authorized it for the purpose of reducing illicit activities in relation to cannabis. The court noted that the text of the federal Act does not expressly confer any positive right to possess or cultivate cannabis plants at home for personal purposes. It added that Mr. Murray‑Hall's argument was particularly troubling because it was based on the idea that Parliament's criminal law jurisdiction gives it not only the power to prohibit conduct but also the power to formally authorize it. Finally, the Court of Appeal again emphasized the complementarity of the two statutes in issue, which reflect the same concern with combating the harm associated with cannabis consumption. It is therefore possible, in its view, to interpret the federal Act in a manner consistent with the principle of cooperative federalism and to find that it [translation] "has not limited the National Assembly's power to prohibit the private cultivation of cannabis in implementing means by which to achieve its objectives" (para. 139).
III. Issues
18This appeal raises the following two questions:
A. Did the Quebec Court of Appeal err in law in holding that ss. 5 and 10 of the provincial Act are constitutionally valid?
B. Did the Quebec Court of Appeal err in law in holding that ss. 5 and 10 of the provincial Act are constitutionally operative?
19Although Mr. Murray‑Hall specifically refers only to the first question in his written submissions, I am of the opinion that this Court should also address the second one. A number of Mr. Murray‑Hall's arguments relate to an alleged conflict of purposes between the federal Act and ss. 5 and 10 of the provincial Act. The Court of Appeal also devoted a good part of its reasons to the question of whether the application of the impugned provisions frustrates or undermines the purpose of the federal Act. In these circumstances, I think it wise to address this question, providing all necessary clarifications.
IV. Analysis
A. Did the Quebec Court of Appeal Err in Law in Holding That Sections 5 and 10 of the Provincial Act Are Constitutionally Valid?
20As I will explain below, I am of the view that ss. 5 and 10 of the provincial Act are a valid exercise by the Quebec legislature of the powers conferred on it by s. 92(13) and (16) of the Constitution Act, 1867 and that the Court of Appeal therefore made no error in its analysis of the validity of the impugned provisions. I will begin by setting out the analytical framework that I apply to reach this conclusion.
(1) Analytical Framework
21The analytical framework for determining the constitutional validity of laws is well established and is not the subject of any particular controversy in this case, so a brief review will suffice.
22To decide whether a law or some of its provisions are constitutionally valid under the division of powers, courts must first characterize the law or provisions and then, on that basis, classify them by reference to the heads of power listed in ss. 91 and 92 of the Constitution Act, 1867 (Reference re Genetic Non‑Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283, at para. 26, citing Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 15).
23At the characterization stage, what must be determined is the pith and substance of the law (Reference re Genetic Non‑Discrimination Act, at para. 28, citing Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 26). In its jurisprudence, the Court has described the aim of this exercise as being to identify the "dominant purpose" of the law (RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 29), its "dominant or most important characteristic" (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 62‑63) or its "leading feature or true character" (R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 481‑82). At the classification stage, in turn, what must be determined is whether the pith and substance thereby defined comes within one of the heads of power of the enacting legislature (Reference re Firearms Act, at para. 25).
24To ascertain the pith and substance of a law, courts look at its purpose and effects (Reference re Firearms Act, at para. 16). This essentially interpretative exercise is meant to be neither technical nor formalistic, to use the words of the late Professor Peter W. Hogg (Constitutional Law of Canada (loose‑leaf ed.), vol. 1, at p. 15‑12, cited in Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 18). Indeed, in addition to the words used in the law itself, courts may consider the circumstances surrounding its enactment (Ward, at para. 17, citing Reference re Firearms Act, at paras. 17‑18, and Morgentaler, at p. 483).
25To analyze the purpose of a law, courts rely on intrinsic evidence, that is, the actual text of the law, including its preamble and purpose clauses, as well as extrinsic evidence, such as parliamentary debates and minutes of parliamentary committees (Canadian Western Bank, at para. 27; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at paras. 53‑54; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457 ("Reference re AHRA"), at paras. 22 and 184). In looking at the effects of the law, courts consider both its legal effects, namely those related directly to the provisions of the law itself, and its practical effects, that is, the "side" effects arising from its application (Kitkatla Band, at para. 54, citing Morgentaler, at pp. 482‑83).
26That being said, I would nonetheless emphasize that textual analysis is the focus of the characterization exercise. As Kasirer J. noted in Reference re Genetic Non‑Discrimination Act, "[i]n the final analysis, it is the substance of the legislation that needs to be characterized, not speeches in Parliament or utterances in the press" (para. 165).
27I will devote the next few sections to these two stages of the analysis — characterization and classification — in order to determine whether the Court of Appeal correctly held that ss. 5 and 10 of the provincial Act are constitutionally valid.
(2) Characterization of the Impugned Provisions
28In my view, the pith and substance of the impugned provisions is to ensure the effectiveness of the state monopoly in order to protect the health and security of the public, and of young persons in particular, from cannabis harm. It follows that the prohibitions against the possession of cannabis plants and their cultivation at home set out in ss. 5 and 10 of the provincial Act are a means of serving the public health and security objectives pursued by that Act. With a few slight differences, my conclusion at the characterization stage is the same as that of the Court of Appeal.
29Before embarking on the analysis, I will provide a brief overview of the principles that apply in characterizing provisions that are alleged to be an integral part of a regulatory scheme.
30Where, as in this case, only very specific provisions are being challenged and not the entire law, certain principles apply. A court should begin by characterizing the provisions rather than considering the validity of the law as a whole. However, this does not mean that the provisions must be read in isolation, as Laskin C.J. noted in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206:
It is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute, even if the statute comprises a regulatory scheme under the general trade and commerce power. At the same time, courts must be careful to assess the validity of each provision in its full context; it would be wrong to read an individual provision in isolation from the regulatory scheme to which it belongs.
31This Court has repeatedly emphasized the need to consider the impugned provisions in light of their interaction with the scheme to which they belong, since the provisions must be analyzed not in isolation, but rather in context (Canadian National Transportation, at pp. 253 and 259; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 20; Ward, at para. 20).
32The principle enunciated by McLachlin C.J. in Ward, where the issue was whether a section of federal fisheries regulations prohibiting the sale of seal products constituted an exercise of the criminal law power, is worthy of note: "The inquiry into pith and substance should look beyond the effect of a particular provision and consider it within the broader regulatory framework to which it belongs" (para. 20).
33I would also note that reading the impugned provisions in the context of the scheme into which they are integrated is crucial in distinguishing the purpose of the law from the means chosen to achieve it. As Estey J. observed in Canadian National Transportation, "[t]he purpose of a law is not to be confused with the method by which it is implemented" (p. 272).
34Bearing in mind the principles laid down in National Transportation and the note of caution sounded in Ward, I will now characterize ss. 5 and 10 of the provincial Act by analyzing their purpose and effects.
(a) Purpose of the Impugned Provisions
(i) Intrinsic Evidence
35Sections 5 and 10 of the provincial Act set out absolute prohibitions against, respectively, the possession and the cultivation of cannabis plants for personal purposes in Quebec. Read literally, these provisions prohibit what the federal Act allows.
36However, it is essential to analyze ss. 5 and 10 in light of their context and not just their wording, because it is the Attorney General of Quebec who is defending the constitutional validity of the impugned provisions, not the appellant Mr. Murray‑Hall, and the impugned provisions form part of a broad provincial scheme.
37It is also my view that the impugned provisions must not be read "separately" or "individually" on the pretext that they may relate to a very discrete issue. This way of reading them would obscure the fact that ss. 5 and 10 do not live in isolation; they must be understood in conjunction with the other provisions of the provincial Act.
38An overview of the provincial Act reveals the scope of the regulatory scheme introduced by the Quebec legislature. Like the Court of Appeal, I find it helpful to map out that scheme. The provincial Act includes the following: general prohibition on possessing a cannabis plant (s. 5); provisions governing the manner in which cannabis is consumed (ss. 8 and 9); general prohibition on cultivating cannabis for personal purposes (s. 10); provisions concerning the SQDC's monopoly on the sale of cannabis (s. 25) and the various controls governing the exercise of that monopoly, including controls related to the characteristics of cannabis products (ss. 27, 29 and 30), the marketing of cannabis (s. 31 para. 2), the packaging and labelling of cannabis (ss. 33 and 34 to 39) and the information to be provided to cannabis purchasers (ss. 40 to 42); the requirement that cannabis‑related retailers verify the age and sobriety of customers (s. 44); and the prohibition on cannabis advertising (ss. 45, 56 and 57).
39It is helpful to recall that, at the same time the provincial Act was enacted, the Quebec legislature amended the Act respecting the Société des alcools du Québec, CQLR, c. S‑13, to make the SQDC a subsidiary of the SAQ. In the words of the new s. 16.1 para. 1 of that Act, "The Société québécoise du cannabis is a subsidiary of the [SAQ]." These two legislative initiatives must be seen as part of the same legislative exercise: together, they signal the Quebec legislature's intent to give the SQDC a monopoly on the sale of cannabis with the goal of protecting the health and security of the public.
40The provincial Act sets out the various aspects governing the exercise of the SQDC's monopoly on the sale of cannabis (s. 25), including controls on the characteristics of cannabis products (ss. 27, 29 and 30), the marketing of cannabis (s. 31 para. 2), the packaging and labelling of cannabis (ss. 33 and 34 to 39), and information to be provided to purchasers (ss. 40 to 42). These provisions — most of which govern the SQDC's activities — all have the effect of making the SQDC and its product attractive to consumers and thus of strengthening the monopoly by favouring the substitution of legal cannabis for illegal cannabis.
41Like the provisions just mentioned, ss. 5 and 10 are part of the monopolistic logic intended by the Quebec legislature, and the prohibitions they set out contribute to the effectiveness of the state monopoly, since they act as incentives for consumers to integrate into the legal cannabis market. The prohibitions channel consumers towards the SQDC by removing self‑cultivation as a possible alternative. I therefore agree with the Court of Appeal that the impugned provisions do not have a separate and independent objective of prohibiting the possession and cultivation of cannabis plants for personal purposes. Rather, the prohibitions are one means, among a broad range of measures, by which the provincial Act pursues its public health and security objectives.
42In reality, the impossibility of possessing and cultivating cannabis plants at home without risking penal sanctions has the effect of steering consumers toward the SQDC. Consumers who would otherwise grow their own cannabis at home, thus competing with the SQDC, are instead directed to purchase their cannabis from the SQDC. In this sense, ss. 5 and 10 strengthen the effectiveness of the state monopoly, making it harder for a black market to develop by reducing the supply from individuals who cultivate cannabis for personal use. In short, by prohibiting the possession and cultivation of cannabis plants for personal purposes, ss. 5 and 10 eliminate an alternative source of supply that would compete with the SQDC.
43The essence of the position advanced by the appellant in this Court is that the purpose of the provincial Act could have been achieved by regulating cultivation rather than prohibiting it entirely and that, accordingly, the prohibitions exceed what would be required to protect the health and security of the public. On this basis, Mr. Murray‑Hall concludes that the prohibitions are the very purpose of the provisions rather than a means of achieving the provincial Act's public health and security objectives.
44In my opinion, however, this distinction between the absolute prohibitions being challenged and the more flexible prohibitions mentioned with reference to the possibility of permitting the cultivation of a limited number of plants does not concern the purpose of the law or the characterization of the impugned provisions. The absolute or relative nature of the prohibitions may be relevant to determining the "means" chosen by the legislature to achieve its public health and security objectives, but not to characterizing the law or its provisions.
45In short, when viewed together with the other provisions of the provincial Act, ss. 5 and 10 do not have the separate and independent objective of prohibiting the possession and cultivation of cannabis plants for personal purposes. The prohibitions they establish are one means — among a broad range of measures — for achieving the provincial Act's public health and security objectives, since they act as strong incentives for the integration of consumers into the legal cannabis market.
(ii) Extrinsic Evidence
46In my view, the usefulness of the legislative debates in this appeal is relative. I adopt the Court of Appeal's observation that [translation] "legislative debates should be used with considerable care as evidence regarding the purpose of legislation" (para. 71). I note, however, that some comments made by members of the Quebec legislature do support the conclusion I have just reached on the basis of the intrinsic evidence. They confirm that ss. 5 and 10 serve the purpose of steering consumers toward the SQDC by removing the self‑cultivation alternative, and thus that the prohibitions in ss. 5 and 10 are a means of ensuring that consumers will buy from the SQDC rather than growing their own cannabis at home.
47It can be seen from the proceedings of the Standing Committee on Health and Social Services that the members of the Quebec legislature considered that the prohibition on the personal cultivation of cannabis acts as an incentive for consumers to buy from the SQDC and, in doing so, protects the health and security of the public. In a statement that clearly illustrates the link between ss. 5 and 10 and the state monopoly, a member of the National Assembly noted that [translation] "[o]ne of the key objectives of this bill is to direct the population toward the legal circuit in order to protect public health. This is why the bill prohibits the personal cultivation of cannabis for home use" (National Assembly, Journal des débats de la Commission permanente de la santé et des services sociaux, vol. 44, No. 189, 1st Sess., 41st Leg., March 21, 2018, at p. 22 (M. Charette)).
48A comment made by a member of the opposition, which the Minister responsible for Public Health later endorsed, is revealing:
[translation] This bill positions and prepares Quebec for the imminent legalization of cannabis, unilaterally imposed, let us be honest, Madam President, by the federal government. I want citizens to understand that this is not a bill that condones, that condones the use of cannabis. We continue, we maintain the fight against cannabis; the tools are simply different. (National Assembly, Journal des débats, vol. 44, No. 346, 1st Sess., 41st Leg., June 6, 2018, at pp. 21972‑73 (L. Charlebois))
49That being said, I acknowledge that the discussion concerning the extrinsic evidence in the Superior Court and the Court of Appeal related mainly to the concept of "colourable legislation". Since neither party addressed the concept of colourability in this Court, I will deal with this issue briefly.
50The concept of "colourable legislation" refers to legislation that seemingly deals with a matter within the jurisdiction of the enacting level of government, but in reality relates to a matter outside that jurisdiction. In essence, a finding of colourability is a finding of bad faith on the part of the legislature.
51The appellant submits that the members of the Quebec legislature demonstrated on a number of occasions that their intent was to thwart Parliament's action by using the provincial Act to circumvent the decriminalization effected by the federal Act. In his view, this indicates that the Quebec legislature was improperly attempting to re‑enact the prohibitions against the possession and personal cultivation of cannabis that Parliament had formerly enacted as criminal offences and then repealed. On this argument, even if ss. 5 and 10 are formally health‑related, their true purpose is to circumvent the federal decriminalization.
52It is true that some uneasiness was expressed within the walls of the National Assembly over the decriminalization bill, which was introduced on short notice by the federal government. The following comments, made by a member of the governing party — comments approved by the minister later in the same session — are particularly notable:
[translation] This bill positions and prepares Quebec for the imminent legalization of cannabis, unilaterally imposed, let us be honest, Madam President, by the federal government. I want citizens to understand that this is not a bill that condones, that condones the use of cannabis. We continue, we maintain the fight against cannabis; the tools are simply different. (National Assembly, Journal des débats, vol. 44, No. 346, 1st Sess., 41st Leg., June 6, 2018, at pp. 21972‑73 (L. Charlebois))
53Statements like these are, however, far from sufficient for a finding of colourability. As Cromwell and Karakatsanis JJ. noted in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, "[c]olourability generally requires more — namely, evidence of an 'improper' legislative purpose that intrinsically relates to a legislative failure, such as fraud on the Constitution" (para. 33). Moreover, "before concluding that legislation is colourable, courts must take care not to second‑guess reasonable legislative choices" (ibid., para. 34).
54In my view, the Minister's statements do not show an intent to recriminalize what Parliament sought to decriminalize. Rather, they reflect a general concern about the use of cannabis and the desire to implement health-related measures to protect the population despite the fact that cannabis use had been decriminalized by Parliament. A province's having reservations about federal decriminalization of cannabis does not mean that any step it takes to regulate cannabis for health and security purposes was taken in bad faith.
55A parallel was drawn by the trial judge between the circumstances of this case and those of Morgentaler, in which the pith and substance of a Nova Scotia statute restricting the performance of abortions in private clinics was held to be criminal law aimed at preventing the implementation of the decision of this Court in R. v. Morgentaler, [1988] 1 S.C.R. 30. In that case, the province had explicitly stated that its purpose was to restrict abortion as it saw fit and to counteract the effect of the federal legislation, and the trial judge drew an analogy with this case.
56I agree with the Court of Appeal that the circumstances of this case differ from those of Morgentaler. The statements made by the members of the Quebec legislature in this case are not, as the Court of Appeal found, "comparable to those found in the Morgentaler case, which explicitly demonstrated the legislature's intent to prevent the effects of the Morgentaler [SCC] decision from being felt in the province" (para. 90). The Quebec legislature was not seeking to reverse or circumvent the effect of a court decision or to enact legislation that was facially directed at a valid purpose but was in reality aimed at something else entirely. The Quebec legislature was trying to put in place a regulatory scheme to implement a recognized provincial jurisdiction in the field of health, and it was doing so openly and transparently.
57Given the complete lack of evidence of any "improper" legislative purpose, and exercising the caution with which this Court has always dealt with findings of colourability, I am satisfied that ss. 5 and 10 do not represent a colourable attempt to re‑enact the prohibitions against possessing and cultivating cannabis that Parliament repealed as criminal offences.
(b) Effects of the Impugned Provisions
58The effects of the impugned provisions are clear, and I agree with the manner in which the Superior Court described them in its reasons:
[translation] . . . the practical consequence of applying ss. 5 and 10 is one, to prevent citizens from possessing and cultivating cannabis plants for personal purposes and two, to force consumers to buy from the SQDC.
The legal consequences of the provincial provisions are one, to prohibit the possession of cannabis plants and the personal cultivation of cannabis and two, to impose penal sanctions for any violation.
59I would add, however, that while the impugned provisions do bring otherwise decriminalized conduct into the sphere of penal law, the consequences of a violation of the provincial Act are much less severe than a criminal conviction. The penal sanctions at issue here are a fine of between $250 and $750, doubled for a subsequent offence. The Québec Court of Appeal noted that this is similar to a parking ticket or a speeding ticket. These are not criminal penalties.
60Together, the legal and practical effects described above confirm the conclusion I reached earlier after analyzing the intrinsic and extrinsic evidence: the pith and substance of the impugned provisions is to ensure the effectiveness of the state monopoly on the sale of cannabis in order to protect the health and security of the public, and of young persons in particular.
61One final point concerning the effects of the impugned provisions warrants further comment. The intervener the Canadian Association for Progress in Justice argues that the effects of the impugned provisions include the recriminalization of the home cultivation of cannabis and the negative health and social consequences of that recriminalization, such as overcrowded prisons and racial profiling by law enforcement authorities. Relying on those effects, it argues that the pith and substance of ss. 5 and 10 is to suppress an evil, which is the hallmark of criminal law.
62I accept the premise that considering the legislative debates and analyzing effects may be helpful in establishing the colourability of a law. But the argument of the intervener goes further, since it equates the "effects" of the impugned provisions with the consequences of any prohibitory law. I cannot accept such a broad conception of the effects of a law.
63To accept the intervener's argument would mean that the enactment by a province of any prohibition against cannabis for regulatory purposes would trigger a finding that the impugned provisions are suppressing an evil and therefore come within the federal criminal law power. This logic is difficult to reconcile with Laskin C.J.'s approach to the inquiry into the effects of a law and would significantly restrict the provinces' ability to regulate cannabis.
(c) Conclusion on Pith and Substance
64For the reasons given above, I conclude that the pith and substance of ss. 5 and 10 is to ensure the effectiveness of the state monopoly on the sale of cannabis in order to protect the health and security of the public, and of young persons in particular.
(3) Classification of the Impugned Provisions
65In this case, the question before us at the classification stage is whether the impugned provisions fall within the federal criminal law power under s. 91(27) of the Constitution Act, 1867, as the trial judge held, or within the powers conferred on the provinces over property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)).
66To begin with, I cannot accept the trial judge's reasoning, which the appellant urges us to adopt, to the effect that ss. 5 and 10 of the provincial Act are related to the criminal law power because they contain prohibitions accompanied by penalties that serve a criminal law purpose. Under the classic test set out in the Margarine Reference, the criteria for valid criminal law are (1) a prohibition, (2) backed by a penalty and (3) serving a public purpose such as peace, order, security, health or morality. In the trial judge's view, the impugned provisions meet all three of these conditions and should therefore be classified under the federal criminal law power. This approach is flawed, however, because a law can have elements of criminal law without falling within the federal criminal law power. As I will explain below, it is the pith and substance of the impugned provisions — the protection of health and security — that must guide the classification.
67In my view, even though ss. 5 and 10 seemingly have all the characteristics of criminal law, they should still not be classified under s. 91(27) of the Constitution Act, 1867. This is so for two reasons.
68First, Parliament's decision to decriminalize conduct leaves the field clear for the provinces to enact their own prohibitions accompanied by penalties in relation to that conduct for provincial purposes. By decriminalizing certain conduct, Parliament, in effect, withdraws from that field. I therefore agree with the Court of Appeal that, in enacting ss. 5 and 10, the Quebec legislature exercised "a concurrent power to create penal prohibitions pursuant to s. 92(15), in order to enforce an otherwise valid law" (para. 95). In other words, since Parliament has decriminalized the home cultivation of cannabis, the Quebec legislature may now enact penal measures to regulate this same conduct within its own field of jurisdiction.
69Second, it is recognized that the provinces have jurisdiction to make laws in relation to several matters that touch on purposes that otherwise fall within federal jurisdiction. For example, the provinces may enact laws for the protection of the environment (ss. 92(13) and (16)) even though environmental protection may involve the suppression of an evil (R. v. Hydro‑Québec, [1997] 3 S.C.R. 213). Similarly, the provinces have jurisdiction to regulate liquor (Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59) and to regulate the promotion and sale of tobacco products, even though these activities may harm the public (Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188).
70Rather than taking the analytical framework developed in the Margarine Reference as a starting point, as the trial judge did, I will characterize the impugned provisions through the lens of the leading cases and identify which head of power they most naturally fall under.
71In this case, the partial decriminalization by Parliament of the possession, sale and distribution of cannabis and the possession and cultivation of cannabis plants at home opens the door to provincial legislative action. The cannabis‑related regulatory scheme put in place by the Quebec legislature is primarily aimed at regulating a substance whose production, distribution and sale were previously strictly controlled by the federal criminal law. The pith and substance of the impugned provisions — ensuring the effectiveness of the state monopoly in order to protect the health and security of the public — is related primarily to the provincial jurisdiction over property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)).
72A word about these two heads of power as distinct bases for the validity of ss. 5 and 10. In Dupond v. City of Montreal, [1978] 2 S.C.R. 770, Beetz J. observed that ss. 92(13) and (16) are complementary in that they both apply to matters that concern private parties or that are of a local or private nature in the province. I will therefore discuss them together. It suffices to say that both of these heads of power have a broad and plenary character that is sufficient to ground the validity of ss. 5 and 10 under provincial jurisdiction, considering the pith and substance I identified above.
73With this clarified, I must now explain how the intent behind the Quebec legislature's action in the field of health in this case was to regulate, not to suppress a threat or an evil. This is an important distinction. Health, as a matter not exclusively assigned to either level of government in the Constitution Act, 1867, is an area of overlapping jurisdiction in which both Parliament and the provincial legislatures have authority to legislate (Schneider v. The Queen, [1982] 2 S.C.R. 112; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, at paras. 183‑84, per Lebel and Deschamps JJ.). But the precise basis for the validity of provincial laws in the health field varies depending on the matter regulated (Schneider, at p. 137): the provinces may, for example, regulate or plan health services under ss. 92(13) and (16), or establish rules for the practice of professions under s. 92(13).
74Here, the Quebec legislature saw the possession and personal cultivation of cannabis not as a social evil to be suppressed, but rather as a practice to be regulated in order to protect the health and security of the public. Its intent was to regulate the cannabis sector by creating a state monopoly on the sale of cannabis and channelling consumers toward that monopoly. The aim was not to suppress the possession and consumption of cannabis, but to ensure that, while those activities are legal, they take place within a controlled framework that protects the health and security of the public.
75In light of the foregoing, ss. 5 and 10 therefore fall not within the sphere of the criminal law but rather within the provinces' general power to regulate, specifically their jurisdiction over property and civil rights (s. 92(13)) and matters of a merely local or private nature (s. 92(16)). I would add that these provisions can also be upheld under s. 92(15) of the Constitution Act, 1867, which confers on the provinces the power to impose penalties for enforcing provincial laws. The main provisions of the provincial Act (those setting out the rules governing the SQDC's monopoly) being valid, ss. 5 and 10 can serve as valid enforcement provisions.
76While it is true that prohibitions similar to those set out in ss. 5 and 10 have been enacted by Parliament in the past under the federal criminal law power, it does not necessarily follow that such provisions cannot be enacted by a provincial legislature. The Privy Council recognized that "the same facts . . . may give rise to rights and liabilities under both [federal and provincial] systems" (Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310, at p. 326). The double aspect doctrine, to which I will now turn, applies where a matter has both a federal and a provincial dimension.
77This appeal is a textbook case for the application of the double aspect doctrine. The regulation of the use of drugs, including cannabis, has been recognized as having a double aspect: the use of drugs has both a criminal law aspect (preventing and punishing social harm) and a health and safety aspect (protecting public health). In short, the regulation of cannabis may be addressed from the perspective of the criminal law (under s. 91(27)), by suppressing some evil or injurious or undesirable effect upon the public, and from the perspective of health or trade (under s. 92(13) and (16)), by regulating, among other things, the conditions of production, distribution and sale of the substance. This double aspect means that the provinces can regulate the use of cannabis, even if that regulation has prohibitory effects, as long as the purpose and effects of the regulation are related to a matter within provincial jurisdiction.
78I conclude this section by emphasizing that the impugned provisions do not encroach on the federal criminal law power merely because they create prohibitions that are backed by penalties. The double aspect doctrine teaches that the same conduct can be the subject of both federal and provincial laws, each enacted in relation to a different head of power. Moreover, the decriminalization of home cultivation by Parliament has opened the door to provincial legislation regarding that conduct. The impugned provisions, whose pith and substance is ensuring the effectiveness of the state monopoly to protect the health and security of the public, fall within the provincial powers set out in ss. 92(13) and (16), and possibly also under s. 92(15), of the Constitution Act, 1867.
(4) Conclusion on the Constitutional Validity of the Impugned Provisions
79The presumption of constitutional validity of legislation remains a cardinal principle of our division of powers jurisprudence (Reference re The Farm Products Marketing Act, [1957] S.C.R. 198, at p. 255 (Nova Scotia Board of Censors v. McNeil, at p. 689)).
80Here, the onus was on the appellant to show that, in pith and substance, ss. 5 and 10 are not related to one of the classes of subjects under provincial jurisdiction. For the reasons set out above, I am of the view that the appellant has not discharged that burden.
81For the reasons stated above, I am of the view that ss. 5 and 10 of the provincial Act are a valid exercise by the Quebec legislature of the powers conferred on it by s. 92(13) and (16) of the Constitution Act, 1867. The Court of Appeal made no error in holding that the impugned provisions are constitutionally valid.
82Although this is not a determining factor, I note that the Attorney General of Canada did not intervene in this case to contest the constitutional validity of ss. 5 and 10.
B. Did the Quebec Court of Appeal Err in Law in Holding That Sections 5 and 10 of the Provincial Act Are Constitutionally Operative?
83In this second part, I will address whether the doctrine of federal paramountcy applies in this case, which would mean that ss. 5 and 10 of the provincial Act are of no force or effect.
84By way of introduction, I will outline the circumstances in which the doctrine of federal paramountcy applies. There is an inconsistency that justifies the application of the doctrine of federal paramountcy when (1) there is an operational conflict between a valid federal law and a valid provincial law, or (2) it is impossible to comply with both laws at the same time, or (3) the application of the provincial law frustrates the purpose of the federal law (Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at para. 17; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419, at para. 14).
85Indeed, the burden of proof that rests on the party alleging an operational conflict or a conflict of purposes is a high one (Alberta (Attorney General) v. Moloney, at para. 18; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 356). This Court has for many decades taken a "restrained" approach to federal paramountcy, "declaring provincial laws inoperative only to the extent necessary to resolve the conflict with federal legislation" (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para. 170, citing Lemare Lake Logging, at para. 15).
86For the reasons that follow, and in light of the "restrained" approach to paramountcy that guides the Court, I am of the view that the appellant has not demonstrated that the application of ss. 5 and 10 of the provincial Act frustrates the purpose of the federal Act.
87I want to dispel at once any notion that there is an operational conflict between the impugned provisions and the federal Act. When questioned about this, counsel for the appellant agreed at the hearing before this Court that it is possible to comply with both the federal Act and the provincial Act simultaneously. Indeed, an individual subject to the provincial Act who does not possess or cultivate cannabis plants in a dwelling‑house will not violate the federal Act. There is therefore no operational conflict.
88Therefore, the only question to be answered is rather whether a federal purpose is being frustrated, which in this case involves first establishing the purpose of the federal Act and then determining whether the provisions of the provincial Act are incompatible with that purpose.
89The appellant's position on the frustration of the federal Act's purpose can be briefly summarized. He alleges that the incompatibility results from the fact that Parliament, in the federal Act, authorized individuals to possess and cultivate up to four cannabis plants in their dwelling‑house with a view to reducing illicit activities in relation to cannabis. He further alleges that ss. 5 and 10 of the provincial Act undermine this objective by recriminalizing these activities.
90In my opinion, the appellant's position cannot be accepted. The purpose of the federal Act's provisions is not to create a positive right to self‑cultivate cannabis plants at home for personal purposes. Rather, the purpose of the exemptions created by the federal Act is to carve out exceptions to prohibitions; these exemptions do not confer on individuals a positive right to engage in the excepted conduct.
91It is true that, in everyday language and even in the speeches of some parliamentarians, the creation of exceptions or exemptions under a scheme of criminal offences is occasionally described as "authorization" or "permission". But the legal consequence of an exception or an exemption is simply the absence of a federal prohibition, not the conferral of a positive right.
92Furthermore, I note that nothing in the language of ss. 8(1)(e) and 12(4)(b) indicates that Parliament's intention was to authorize the self‑cultivation of cannabis plants. Parliament expressly stated, in those provisions, that the exemption simply removes the relevant conduct from the scope of the prohibition; the exemption is purely negative and does not confer any positive right.
93The appellant attaches great importance to the fact that s. 7(c) of the federal Act is framed in much more positive or permissive terms, since it requires that the Act's rules and procedures "provide for licit production of cannabis to reduce illicit activities in relation to cannabis". If, as Mr. Murray‑Hall suggests, Parliament intended to "authorize" the self‑cultivation of cannabis plants, we would expect that section 7(c) would form the foundation for that authorization. I am not persuaded that this provision supports the appellant's interpretation, for two reasons.
94First, it is not clear that Parliament, through the term "licit production" in s. 7(c), was referring specifically to the home production of cannabis. I would also note that, in the Regulation respecting training on the retail sale of cannabis and information to be communicated to a purchaser in the course of a cannabis sale, CQLR, c. C‑5.3, r. 1, adopted pursuant to the provincial Act, the concept of "licit production" refers to production under licence — not to the home production of cannabis.
95Second, even if it is accepted that the concept of "licit production" may refer to home production, the words "provide for" in s. 7(c) cannot be interpreted as creating a positive right to possess and cultivate cannabis plants at home. The word "provide" in s. 7(c) connotes the establishment of a framework for licit production; it does not confer any right on individuals.
96The guidance provided in Rothmans is relevant for the purposes of this appeal. In my view, the principles arising from that case are determinative of the question whether the purpose of the federal Act is frustrated by ss. 5 and 10 of the provincial Act.
97The principle to be drawn from these excerpts is that the making of exceptions or exemptions under a criminal law scheme cannot serve to confer positive rights. Therefore, Parliament's exemption of the home cultivation of up to four cannabis plants from the prohibition against the cultivation of cannabis plants does not create a positive right to cultivate cannabis at home.
98I acknowledge that the circumstances of Rothmans differed from those of this case in one important respect. In Rothmans, the exemption for the display of tobacco products was contained in a federal regulation, not in the federal statute itself. Here, the exemption from the prohibition against possessing and cultivating cannabis is set out in the federal statute itself. The question is therefore whether this distinction is relevant to the analysis. In my view, it is not.
99However, I cannot accept that exceptions or exemptions made under a scheme of criminal offences may give rise to positive rights, even where they are set out in the federal statute itself rather than in a regulation made under that statute. The distinction between statutory and regulatory exemptions is not relevant to the question whether the federal paramountcy doctrine applies to the exemption. The principle in Rothmans is therefore not affected by whether the exemption is set out in a statute or in a regulation.
100The principles that emerge from Rothmans are relevant without having to be modified in any way and are applicable to this appeal. This means that the relevant question is not whether ss. 5 and 10 of the provincial Act have the effect of narrowing a permissive federal scheme by preventing Quebecers from relying on the federal exemption for self‑cultivation at home, but rather whether these provincial provisions frustrate the purpose of the federal Act. As I will now explain, they do not.
101Although this is not in itself determinative in deciding the question of operability, I would observe that the objectives pursued by Parliament in the federal Act and those pursued by the Quebec legislature in the provincial Act are not at odds, but rather complement one another. This complementarity supports the conclusion that the impugned provisions are compatible with the federal Act.
102I note in this regard that the provincial prohibitions directly address several of the objectives set out in s. 7 of the federal Act. The provincial prohibitions are aimed at reducing the harm that cannabis causes to public health by ensuring that only cannabis that meets certain quality standards — sold by the SQDC — reaches consumers. In particular, by channelling consumers toward the SQDC, the impugned provisions address the federal Act's objectives of protecting public health and the health of young persons (s. 7(a) and (b)), providing access to a regulated product to reduce illicit activities in relation to cannabis (s. 7(c)), reducing the risk of cannabis being diverted to an illicit market (s. 7(d)), and deterring and reducing criminal activity in relation to cannabis by displacing the illicit market (s. 7(e)).
103Finally, I would add that even though Parliament and the provincial legislature have taken different approaches to self‑cultivation, the provincial Act reflects a concern with combating organized crime, just as the federal Act does. This appears to be one of the fundamental objectives of both legislative schemes. The provincial Act's objectives do not conflict with those of the federal Act; they reflect the same concern.
104Accordingly, I conclude that ss. 5 and 10 of the provincial Act do not frustrate the purposes stated in the federal Act, including that of reducing illicit activities in relation to cannabis. The impugned provisions and the federal Act are therefore in harmony.
V. Conclusion
105Sections 5 and 10 of the provincial Act are valid and operative. I would dismiss the appeal.
106The Attorney General of Quebec has requested that costs be awarded to him. In my view, granting that request would not be justified. This Court has long recognized that public interest constitutional cases should not generally be burdened with costs unless there are special circumstances that justify it. No special circumstances have been raised in this case.
Appeal dismissed.
Solicitors
Solicitors for the appellant: Saraïlis Avocats, Québec.
Solicitors for the respondent: Lavoie, Rousseau (Justice‑Québec), Québec; Ministère de la Justice du Québec, Québec.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario — Constitutional Law Branch, Toronto.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: Legal Services Branch — Ministry of Attorney General, Victoria.
Solicitor for the intervener the Attorney General of Saskatchewan: Constitutional Law Branch — Ministry of Justice and Attorney General, Regina.
Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta — Constitutional and Aboriginal Law, Edmonton.
Solicitors for the intervener the Canadian Association for Progress in Justice: IMK, Montréal; Dalziel Law Corporation, Vancouver.
Solicitors for the intervener the Canadian Cancer Society: Canadian Cancer Society, Ottawa; Langlois Lawyers, Montréal.
Solicitors for the intervener Cannabis Amnesty: Paliare Roland Rosenberg Rothstein, Toronto; Ruby Shiller Enenajor DiGiuseppe, Toronto.
Solicitors for the interveners the Cannabis Council of Canada and the Quebec Cannabis Industry Association: McCarthy Tétrault, Toronto.
* Brown J. did not participate in the final disposition of the judgment.
