The Supreme Court trial to ban home-growing reveals a larger problem with legalizing cannabis at the federal level

In Canada, legalization grants people the ability to grow up to four cannabis plants per household for personal use — unless you live in Manitoba or Quebec, of course.

The two provinces have banned adult cannabis cultivation at home since federal legalization began in 2018. A man from Quebec is trying to get the province to rethink its policy. Janik Murray-Hall is challenging the ban for himself and anyone else who could be penalized for growing cannabis at home.

The ongoing litigation began in 2019 and reached another milestone when the case went to the Supreme Court of Canada on the morning of September 15. The hearing was exceptionally held in Quebec City in Ottawa as part of a Supreme Court initiative to make the judicial system more accessible to Canadians.

Does a provincial cannabis cultivation ban replace the rights afforded by federal legalization?

Murray-Hall believes that Sections 5 and 10 of Quebec’s Cannabis Regulation Act violate Canada’s charter and liberty rights because they directly violate the Federal Cannabis Act. Under the law, Canadians are allowed to grow and possess up to four cannabis plants per household for personal use.

He says federal laws should take precedence over state laws.

In court on Thursday, Murray-Hall attorney Maxime Guérin accused the province of creating legislation to “stigmatize the possession, cultivation and use of cannabis,” saying it undermined the values ​​of federal law.

“The Quebec government has really tried to balance or counteract federal legislation,” Guérin told the court while answering questions from the nine Supreme Court justices seated in the Quebec City courtroom.

Guérin also told the court that federal regulations appear to grant Canadians “positive rights” with respect to the cultivation and possession of cannabis plants.

But Patricia Blair, counsel for the Quebec Attorney General, told the court that while federal cannabis law does not make growing cannabis federally illegal, it does not give Canadians the right or authority to do so.

Blair noted that the Criminal Code is not intended to confer “positive rights” but to prohibit certain activities.

Blair also stressed that provincial legislation, including the ban on home cultivation, is designed to ensure adequate safety for Quebec’s youth and its cannabis users.

This means that despite Murray-Hill’s claims of inequality, provincial legislation ultimately has “the same goal” as federal cannabis law, according to Blair.

The Court also heard from a long line of interveners whose role is to represent their own view of a case in court and to help provide a broader perspective on a particular issue than that of the defendants and appellants.

Parties with intervener status included representatives of interest groups such as the Canadian Cancer Society, the Canadian Association for Progress in Justice and Cannabis Amnesty; by industry groups such as the Cannabis Council of Canada and the Quebec Cannabis Industry Association; and the Attorneys General of Saskatchewan, Alberta, Ontario, British Columbia and Manitoba, the latter being the only other province in Canada where home growing is banned.

Canadians can grow four plants at home — except in Manitoba and Quebec

The legal challenge dates back to 2019 when plaintiff Murray-Hall, best known as the creator of the parody website Le Journal de Mourréal, challenged two sections of the province’s cannabis legislation that prohibit Quebecers from using cannabis growing at home and/or owning cannabis plants for personal use.

The Supreme Court sided with Murray-Hall and found both sections 5 and 10 of the provincial statute to be unconstitutional.

In her ruling, Judge Manon Lavoie wrote that the sections violate the federal government’s jurisdiction, which allows home growing of up to four plants per household and has sole jurisdiction to legislate on criminal matters.

Judge Lavoie noted that while the province may be able to further restrict home growing, it cannot ban it outright. However, the decision was overturned in September 2021 by the Quebec Court of Appeals, which unanimously ruled the provisions in question constitutionally valid.

Murray-Hall then escalated the fight before the country’s highest court.

Despite overwhelming public support for home growing in pre-legal polls, growing cannabis at home will cost you. Under current law, individuals caught possessing or cultivating cannabis for personal use in Quebec face a first-time fine of between $250 and $750, doubled for a second violation.

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The province of La Belle has long had some of the strictest cannabis laws in the country, including the highest legal drinking age (21 and over), restrictions on how much cannabis residents can privately possess, and additional restrictions on products such as edibles, shirts, bongs and books.

Manitoba is the only other province in Canada to have banned adult home growing.

This process could pave the way for action against provincial bans in other provinces as well

Outside of Quebec, residents of Manitoba will be most directly affected by the upcoming ruling.

A decision upholding the provincial ban in Quebec would essentially set Manitoba’s own cultivation ban in stone. If the ban is struck down as unconstitutional, many Manitoba homes could go a little greener in the near future, much to the likely chagrin of the attorney general’s office.

For the rest of Canada, the ramifications may be less obvious in daily life, but Toronto-based attorney and former director of NORML Canada, Caryma Sa’d, told Leafly that the decision made in this case could set a precedent that would done has legal ramifications beyond growing cannabis at home in Quebec.

A good example of this might be Alberta (Attorney General) vs. Moloney, a 2015 case involving auto insurance and a conflict between provincial and federal laws that was cited repeatedly by attorneys and in intervening facts during this case meanders through the court system.

Sa’d says Murray-Hill’s argument that federal statutes trump provincial statutes has some validity, and cites the doctrine of primacy, which says that in cases where federal and provincial statutes conflict, federal statutes take precedence.

Societé Québecoise du Cannabis (SQDC) has reported net income of $168.5 million since legalization and recently announced net income of $20.5 million for the first quarter ended June 2022.

The conflict may consist of a direct operational conflict, where it is impossible to comply with both federal and state laws, or an indirect operational conflict, where the application of state laws “defuses” the purpose of federal laws.

But that doesn’t mean the case is open and closed.

“In the name of cooperative federalism [the doctrine of paramountcy] must be used with restraint,” explains Sa’d. The crux of the legal argument boils down to this: Does the Cannabis Act actually grant Canadians the positive right to grow and possess cannabis plants?

“Yes, I think it gives people the positive right,” she says, but warns that judges might not see it that way. “Ultimately, the outcome is impossible to predict.”

Does Quebec protect citizens or profit margin?

While provincial attorneys and some interveners stressed that the ban was about consumer protection and the safety of young people, others have questioned whether the province might also be protecting its own financial interests as Quebecers’ only legal source of cannabis.

In a recent investigation by MJBiz Daily, reporter Matt Lamers revealed that the most profitable cannabis companies in Canada were actually government-owned. number two on the list? Quebec’s own Societé Québecoise du Cannabis (SQDC) – the province’s only legal cannabis retailer.

SQDC has reported an estimated net income of $168.5 million since legalization and recently announced net income of $20.5 million for its first quarter ending June 2022. With an additional $33.5 million in excise and excise taxes, SQDC generated a total of $54 million for the Quebec government in the quarter.

“The purpose of the SQDC is not to make a profit, but to be a not-for-profit corporation,” Guérin said at the end of the hearing, noting that the money went into the “government coffers” but with the stipulation that it be reinvested will.

Won’t someone please think of the kids?

Child protection was repeatedly cited throughout the hearing, with attorneys general emphasizing the ban as a means of protecting children and young people.

But Montreal researcher Kira London-Nadeau, chair of Canadian Students for Sensible Drug Policy, founder of VoxCann ​​and strategic advisor for the Schizophrenia Society of Canada’s National Cannabis and Psychosis Project, is skeptical of the province’s argument that the house ban applies Extension protects young people.

“Since the plant needs to be properly prepared to produce psychoactive effects, growing cannabis at home does not mean that youngsters have unhindered access,” London-Nadeau told Leafly.

“But perhaps more importantly, growing cannabis at home opens the door for families to have open, honest, and destigmatizing conversations about cannabis use.”

London-Nadeau believes that an age-appropriate but uncomplicated approach is essential when it comes to the safety and well-being of children and young people.

“We need to break the notion that protecting minors means hiding things from them and take real responsibility for ensuring that young people have the tools and knowledge to make their own informed decisions,” she says. “It’s the best way to encourage young people.”

Don’t expect to hear the court verdict any time soon

It’s unclear when the Supreme Court will rule, but Sa’d estimated it could be months — or longer — before Canadians hear a decision. Until then, home gardeners in Quebec will have to fly under the radar to avoid hefty fines.

Alternatively, Quebecers have the option of buying cannabis products (illegally) from the illegal market that provincial legislation sought to eradicate, or buying cannabis products (legally) from a provincial retailer and handing their money over to the government that issued the ban.

Regardless of how the judges rule, it is somewhat ironic that the province, which values ​​its autonomy above all else, has lost all decision-making power in its protracted attempt to defend it. With the case now in federal hands, Quebecers can only wait.

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