Provincial laws that bar people from growing their own marijuana will certainly be challenged in the courts, and the challenges have a “a decent chance” of success, legal experts say.
The federal cannabis legalization bill, now in the Senate, allows individuals up to four cannabis plants, so long as there aren’t more than four in any given home.
On the other hand, Manitoba and Quebec have said they plan to ban home grows completely.
A legal rule called “federal paramountcy” kicks in when there is direct conflict between federal and provincial law: the provincial law will be declared void, to the extent of the conflict.
Potentially, that’s good news for would-be marijuana growers and bad news for the provinces that want to stop them.
“If you can say that the federal government intended this to be the regime, this is their law, and the provincial government is undermining it, is in conflict with it, then you have paramountcy,” says Margot Young of the University of British Columbia law school. “But you have to show that the federal government had put its mind to this issue, and purposefully, with intention structured a regime that didn’t criminalize that kind of low-level home growing.”
All provinces other than Saskatchewan have announced at least the basic details of their cannabis legalization plans.
A document about cannabis legalization published in May by the federal justice department states a clear position that provinces can regulate home grows but not actually ban them:
“A lower plant limit may be set in provincial legislation that is consistent with the federal objectives and allows for dual compliance with both provincial and federal limits, however a
complete provincial prohibition on personal cultivation could be seen as frustrating the federal objective and thus be deemed inoperable.”
READ MORE: One-metre plant height restriction dropped from marijuana legalization bill
“This appears to be a fairly clear staking-out of turf,” says Archie Kaiser of the Dalhousie University law school. “I think that’s a problem for the province that would seek to ban personal cultivation.”
“I think what the federal government is signaling there is that you can’t totally undermine or frustrate the public policy position that we’ve taken. The federal government is saying ‘We will permit the provinces to do some things which suit them, as long as they’re not completely frustrating our legislation.'”
The language is strong, but not as strong as it might be, says Bruce Ryder of Osgoode Hall law school.
“‘Could be seen as frustrating the objectives of the Cannabis Act’ is language that sits on the fence,” he wrote in an email. “They could have stated more firmly: ‘ … would frustrate the objectives of the Cannabis Act.’ But they didn’t.”
On the other hand. “… that is precisely the sort of indication of Parliamentary intent that is needed to support an argument that a provincial ban on personal cultivation is incompatible with the federal purpose underlying Bill C-45. This statement definitely supports the argument that a provincial ban would be at risk of being ruled unenforceable in the courts.”
The federal cannabis legalization bill, now in the Senate, allows individuals up to four cannabis plants, so long as there aren’t more than four in any given home.
On the other hand, Manitoba and Quebec have said they plan to ban home grows completely.
A legal rule called “federal paramountcy” kicks in when there is direct conflict between federal and provincial law: the provincial law will be declared void, to the extent of the conflict.
Potentially, that’s good news for would-be marijuana growers and bad news for the provinces that want to stop them.
“If you can say that the federal government intended this to be the regime, this is their law, and the provincial government is undermining it, is in conflict with it, then you have paramountcy,” says Margot Young of the University of British Columbia law school. “But you have to show that the federal government had put its mind to this issue, and purposefully, with intention structured a regime that didn’t criminalize that kind of low-level home growing.”
All provinces other than Saskatchewan have announced at least the basic details of their cannabis legalization plans.
A document about cannabis legalization published in May by the federal justice department states a clear position that provinces can regulate home grows but not actually ban them:
“A lower plant limit may be set in provincial legislation that is consistent with the federal objectives and allows for dual compliance with both provincial and federal limits, however a
complete provincial prohibition on personal cultivation could be seen as frustrating the federal objective and thus be deemed inoperable.”
READ MORE: One-metre plant height restriction dropped from marijuana legalization bill
“This appears to be a fairly clear staking-out of turf,” says Archie Kaiser of the Dalhousie University law school. “I think that’s a problem for the province that would seek to ban personal cultivation.”
“I think what the federal government is signaling there is that you can’t totally undermine or frustrate the public policy position that we’ve taken. The federal government is saying ‘We will permit the provinces to do some things which suit them, as long as they’re not completely frustrating our legislation.'”
The language is strong, but not as strong as it might be, says Bruce Ryder of Osgoode Hall law school.
“‘Could be seen as frustrating the objectives of the Cannabis Act’ is language that sits on the fence,” he wrote in an email. “They could have stated more firmly: ‘ … would frustrate the objectives of the Cannabis Act.’ But they didn’t.”
On the other hand. “… that is precisely the sort of indication of Parliamentary intent that is needed to support an argument that a provincial ban on personal cultivation is incompatible with the federal purpose underlying Bill C-45. This statement definitely supports the argument that a provincial ban would be at risk of being ruled unenforceable in the courts.”
