Election Promises and Marijuana Policy: What Federalism Has to Offer

Marijuana legalization has officially been announced by Health Minister Jane Philpott for spring of 2017 and the expected outcome, for now at least, is a federally-led initiative. This is the case because section 91(27) of the Constitution Act, 1867 provides Parliament with the power to legislate on issues coming within the purview of the criminal law. That said, if Parliament’s goal is to make marijuana accessible and remove it from the Controlled Drugs and Substances Act, it will need to meaningfully consider the role of the provinces moving forward.

Indeed, the provinces are sovereign entities, as is the federal order, and only by treating them as equals can Canadian federalism truly flourish. This includes letting the provinces do what they’ve been doing since 1867 – regulating the use of substances not explicitly prohibited.

As a country, we’ve been through this before. In 1898, after a referendum that split the country on whether to implement alcohol prohibition, Prime Minister Laurier preferred to leave the issue to the provinces in order to respect the diversity of views. Once prohibition ended, the provinces were left with different provincial regulatory regimes subject only to the federal Importation of Intoxicating Liquors Act, which regulates the interprovincial movement of liquor (albeit now constitutionally suspect since the New Brunswick decision in R. v. Comeau). For years, provinces have also been regulating tobacco sales, subject of course to the additional requirements of the federal Tobacco Act.

Moreover, power to impose penal sanctions is not exclusive to Parliament. Under section 92(15) of the Constitution Act, 1867, the provinces are given the power to impose “punishment by fine, penalty, or imprisonment for enforcing any Law of the Province”. Since regulation of these substances is considered a valid exercise of the provincial power over “property and civil rights” and “matters of a merely local or private nature”, respectively under sections 92(13) and 92(16) of the Constitution Act, 1867,  the provinces are best placed and best equipped to legalize and regulate marijuana.

Since Prime Minister Trudeau’s apparent policy goal is to ensure that minors are not able to purchase marijuana, he should strongly consider decriminalizing marijuana and allowing the provinces to do what they do best. Any federal regulatory framework to supervise the production and distribution of marijuana would need to be cast in the language of prohibitions and penalties to fall under the criminal law power, and thus comply with the Constitution. The provinces, by contrast, would be able to adopt a far more flexible regulatory framework under the property and civil rights power.

Looking to the recent Supreme Court decision in Reference re Assisted Human Reproduction Act delivered in 2010, there are real limitations put on the use of the criminal law power that the federal government needs to take into consideration. The “pith and substance”, or the dominant purpose, of the Act providing the regulatory framework for marijuana will need to be a criminal matter: prohibiting practices for the purpose of protecting moral values, fighting public health evils, and ensuring security, only to name a few. If the Act does not prohibit practices with penal sanctions for a traditional criminal law purpose, it would arguably be unconstitutional.

This means Parliament will need to craft legislation carefully, because even if the criminal power has sometimes been interpreted in an expansive manner, courts have been quite protective of the provincial prerogative under sections 92(13) and the 92(16) of the Constitution Act, 1867.

At this juncture, we’re reminded of the words of former United States Supreme Court Justice Louis Brandeis: “a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The theory espoused by Justice Brandeis, commonly known as “laboratory federalism”, means federated entities are best placed to try bold new ideas and those different experiences allow us to learn and grow as a federation.

Canada’s constitutional structure offers the flexibility to adopt such a decentralized approach to decision-making. In that sense, Canada’s provinces have a role to play in changing and adapting the broader Canadian policy landscape.

It bears reminding that this is the beauty of governance in a federal system. Unlike a unitary state, governmental policies don’t need to be identical across the entire country. There need not be a one-size-fits-all approach to this issue. The federal government should reassess its approach and demonstrate that federalism matters.