Quebec ban on homegrown Cannabis Plants unconstitutional, lawyer tells Supreme Court

It's up to province to regulate how cannabis is consumed, says lawyer for Quebec.

In front of a packed courtroom in Quebec City, the Supreme Court of Canada heard arguments Thursday on the constitutionality of a Quebec law that forbids people from growing cannabis plants for personal use.

Janick Murray-Hall is challenging the ban on the grounds that it is unconstitutional and that it directly contradicts the federal Cannabis Act. Passed in 2018, the federal law makes it legal for Canadians to cultivate up to four plants for personal use.

"We seem to be putting aside the existence of this right to grow," Murray-Hall's lawyer Maxime Guérin told the nine Supreme Court justices.

"There's an opposition between the federal position and the provincial position."

Guérin argued that the Quebec ban goes against the federal government's objective to decriminalize cannabis consumption at home.

He said the province of Quebec was trying to "stigmatize" the consumption and possession of the substance.

He also claimed the provincial regulations on cannabis are forcing people to go to the black market because the government agency that operates cannabis stores in the province, the Société québécoise du cannabis (SDQC), doesn't sell certain products that are legal under the federal law.

The lawyer fielded dozens of questions from the justices, who asked him to clarify his claims that the provincial law clashed with the Criminal Code.

'No proof' ban unconstitutional

The lawyer arguing on behalf of the attorney general of Quebec, Patricia Blair, told the court that the Criminal Code is meant to prohibit certain actions and does not give people positive rights.

That means the Cannabis Act does not entitle people to grow their own plants, it just makes it not illegal to do so, she said.

But controlling how cannabis is regulated and consumed is a provincial matter, she said.

Blair also vigorously denied Guérin's claim that the provincial and federal laws clash in their objective. On the contrary, they complement each other, she said.

She told the judges that the Quebec ban was meant to protect the health of consumers by making sure they can only get cannabis from a safe and regulated source and to protect young people, which, according to her, is "the same objective" as the federal law.

"It's the most beautiful manifestation of co-operative federalism that we can see," Blais said.

The case made its way to the Supreme Court after Quebec's Court of Appeal unanimously ruled in favour of the province in September 2021, on the grounds that provinces have jurisdiction over property and civil rights and can make laws that are local or private in nature.

​An earlier ruling by Quebec's Superior Court sided with Murray-Hall in 2019.

The Supreme Court's decision could affect cannabis laws in other provinces. Manitoba also banned growing and possessing cannabis plants for personal use.​

The case also raises important legal questions, such as whether provincial and federal laws are compatible with one another and whether one prevails.

"We have significant overall concerns about the implications of this case," said Robert Cunningham, a lawyer for the Canadian Cancer Society, which is an intervener in the case.

Cunningham said depending on how the judgment is worded, it could also affect provincial laws that deal with other substances. 

"What is the impact on the other public health laws dealing with tobacco, alcohol, and many other areas?" he said.

Ontario, Manitoba, Alberta, Saskatchewan and British Columbia are all interveners in the case.

The Supreme Court is exceptionally sitting in Quebec City as part of a week-long trip to engage with the public and promote a better understanding of the country's judicial system.