Dear Sir or Madam,
Yesterday, we started our week on vices with an exploration of Canada’s brief flirtation with prohibition of alcohol. Today, we look at some cases regarding alcohol prohibition and what they may tell us about marijuana prohibition. We will make sense of some of the things that have been said about the upcoming legalization and regulation of marijuana.
As we’ve discussed previously, the British North America Act [BNA Act] divides powers between the federal and provincial governments.1 Marijuana is currently under federal jurisdiction as part of the Controlled Drugs and Substances Act.2 Why, then, are some provincial leaders such as Ontario’s Kathleen Wynne talking about their visions for how marijuana will be regulated in their jurisdictions?3 The answer is the double aspect doctrine. Some, complicated issues including mind-altering substances fit into heads of power under both s 91 and s 92.
Russel v The Queen is a case from the 1880s in which federal legislation permitting municipalities to allow or disallow the sale of alcohol was challenged. The Privy Council held that this law is a valid use of both the POGG (Peace, Order and Good Government) power and the s 91(27) criminal law power. (Come back during judiciary week next month to find out why it was the British Privy Council rather than the Supreme Court of Canada making this decision.) Alcohol was something that was a potential national issue, and banning sales was criminal law.4
This was interpreted by some people to mean that alcohol was a federal issue and provinces had no jurisdiction. Hodge v The Queen challenged provincial liquor sales regulation soon after Russel. This led the Privy Council to clarify their earlier decision. Alcohol falls under double aspect doctrine, meaning that the federal government could ban or allow it, but when it is allowed any regulations fall under provincial jurisdiction through s 92(13).5 This division of responsibility has been upheld in recent decades with a finding of invalidity regarding federal regulations on the labelling of “light beer”.6
This does not mean that the federal government will not try to keep the regulation of marijuana (and therefore its tax revenue) under their control. They have been running consultations regarding what regulation models people and stakeholders would prefer.7 The federal government could justify regulation under the POGG power, but it would certainly be challenged by the provinces. In order to invoke POGG, they would have to prove to the Supreme Court that there is something special about marijuana that would make the individual provinces unable to properly manage it.8
The federal and provincial governments are always trying to carve more power away from each other. This is especially true when we have new areas or major changes in law. It is too early to be sure exactly which level of government will end up with control. But as always with the law precedent can provide us with clues.
Your Humble and Obedient Servants,
1Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91-92, reprinted in RSC 1985, Appendix II, No 5.
2Controlled Drugs and Substances Act, SC 1996, Schedule II, s 1.
3Robert Benzie, “Weed Sales Should be Restricted to LCBO: Wynne”, The Star (21 June 2016), online: <www.thestar.com>.
4Russel v The Queen (1882), 7 AC 829 (PC).
5Hodge v The Queen (1883), 9 AC 117 (PC); aff’g (1882), 7 OAR 246; rev’g (1881), 46 UCQB 141 (Ont HC).
6Labatt Breweries of Canada Ltd v AG Canada,  1 SCR 914, 110 DLR (3d) 594.
7Government of Canada, News Release, “Government of Canada moves forward on Marijuana Legalization and Regulation”, (30 June 2916), online: Government of Canada News <www.news.gc.ca>.
8General Motors of Canada Ltd v City National Leasing,  1 SCR 641, 58 DLR (4th) 255.