{"id":1858,"date":"2016-07-26T20:04:02","date_gmt":"2016-07-26T20:04:02","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1858"},"modified":"2017-04-24T18:23:52","modified_gmt":"2017-04-24T18:23:52","slug":"election-promises-and-marijuana-policy-what-federalism-has-to-offer","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/election-promises-and-marijuana-policy-what-federalism-has-to-offer\/","title":{"rendered":"Election Promises and Marijuana Policy: What Federalism Has to Offer"},"content":{"rendered":"

Marijuana legalization has officially been announced by Health Minister Jane Philpott for spring\u00a0of\u00a02017 and the expected outcome,\u00a0for now\u00a0at least,\u00a0is a\u00a0federally-led initiative. This is the case because section 91(27) of the\u00a0Constitution Act, 1867<\/em><\/a>\u00a0provides\u00a0Parliament\u00a0with the power to legislate on issues coming within the purview of the criminal law. That said, if\u00a0Parliament’s goal\u00a0<\/strong>is to make marijuana accessible and remove it from the\u00a0Controlled Drugs and Substances Act<\/em><\/a>, it will need to meaningfully consider the role of the\u00a0provinces moving forward.<\/p>\n

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\u2019ve been doing since 1867 \u2013 regulating the use of substances not explicitly prohibited.<\/p>\n

As a country, we\u2019ve 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\u00a0subject only\u00a0to the federal\u00a0Importation of Intoxicating Liquors Act<\/em><\/a>, which regulates the interprovincial movement of liquor\u00a0(albeit now constitutionally suspect since the New Brunswick decision in\u00a0R. v.\u00a0Comeau<\/em><\/a>). For years, provinces have also been regulating tobacco sales, subject of course to the additional requirements of the federal\u00a0Tobacco Act<\/em><\/a>.<\/p>\n

Moreover,\u00a0power to impose penal sanctions is not exclusive to Parliament. Under section 92(15) of the\u00a0Constitution Act, 1867,<\/em>\u00a0the provinces are given the power to impose \u201cpunishment by fine, penalty, or imprisonment for enforcing any Law of the Province\u201d. Since regulation of these substances is considered a valid exercise of the provincial power over \u201cproperty and civil rights\u201d and \u201cmatters of a merely local or private nature\u201d, respectively under sections 92(13) and 92(16) of the\u00a0Constitution Act, 1867<\/em>,\u00a0 the provinces are best placed and best equipped to legalize and regulate marijuana.<\/p>\n

Since Prime Minister Trudeau\u2019s apparent policy goal is to ensure that minors are not able to purchase marijuana, he\u00a0should strongly consider decriminalizing marijuana and allowing the provinces to do what they do best.\u00a0Any 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.<\/p>\n

Looking to\u00a0the\u00a0recent Supreme Court\u00a0decision in\u00a0Reference re Assisted Human Reproduction Act<\/em><\/a>\u00a0delivered in 2010, there are real limitations put on the use of the criminal law power that the\u00a0federal 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\u00a0a\u00a0criminal matter: prohibiting practices for the purpose of\u00a0protecting moral values, fighting public health evils, and\u00a0ensuring 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.<\/p>\n

This means Parliament\u00a0will need to\u00a0craft\u00a0legislation carefully, because even if the criminal power\u00a0has\u00a0sometimes\u00a0been interpreted in an expansive manner, courts have been quite protective of the provincial prerogative under sections 92(13) and the 92(16) of the\u00a0Constitution Act, 1867.<\/em><\/p>\n

At this juncture,\u00a0we\u2019re\u00a0reminded of the words of former United States Supreme Court Justice Louis Brandeis: \u201ca 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.\u201d\u00a0The theory espoused by Justice Brandeis, commonly known as \u201claboratory federalism\u201d, means federated entities are best placed to try bold new ideas and those different experiences allow us to learn and grow as a federation.<\/p>\n

Canada\u2019s constitutional structure offers the flexibility to adopt such a decentralized approach to decision-making. In that sense, Canada\u2019s provinces have a role to play in changing and adapting the broader Canadian policy landscape.<\/p>\n

It bears reminding that this is the beauty of governance in a federal system. Unlike a unitary state, governmental policies don\u2019t 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Marijuana legalization has officially been announced by Health Minister Jane Philpott for spring\u00a0of\u00a02017 and the expected outcome,\u00a0for now\u00a0at least,\u00a0is a\u00a0federally-led initiative. This is the case because section 91(27) of the\u00a0Constitution Act, 1867\u00a0provides\u00a0Parliament\u00a0with the power to legislate on issues coming within the purview of the criminal law. That said, if\u00a0Parliament’s goal\u00a0is to make marijuana accessible and …<\/p>\n","protected":false},"author":1703,"featured_media":1869,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[203,189,129,128,254,253,184],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1858"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1703"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1858"}],"version-history":[{"count":7,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1858\/revisions"}],"predecessor-version":[{"id":1875,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1858\/revisions\/1875"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1869"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1858"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1858"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1858"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}