Cannabis bill will take years of court challenges

The federal government’s launch of legislation to legalize marijuana opens a door to modest discussion of the manner in which much of Canada’s law is enforced.

Canada is a federal country. Basically that means in principle that there are strict divisions of legislative competence between our federal government and provinces. These jurisdictions originally were set forth in a British statute known as the British North America Act (1867).

In practice, Canada’s Constitution consists of the original 1867 document, all changes incorporated into the 1982 Canada Constitution Act including our Charter of Rights and Freedoms, decisions of courts (Supreme Court and former Judicial Committee of the British Privy Council) and, importantly, constitutional practices such as, for example, who becomes prime minister or enters cabinet.

Sections 91 through 95 of the 1867 Act set forth the basic division of legislative competencies within Canada. Constitutionally, legislative competencies define each province as “sovereign,” as is the federal government. However, the federal government is the only one with the status of international sovereignty.

Provinces may not make treaties, although they may engage in informal cross-border agreements within their respective competencies.

Section 91 of the Revised 1982 Constitution Act (formerly BNA Act) sets forth 29 + 1 “heads” of federal jurisdiction. Section 92 specifies 16 “heads” of provincial jurisdiction.

Section 93 explicitly makes education a matter of provincial jurisdiction. Section 95 creates two concurrent jurisdictions — agriculture and immigration.

For purposes of legislation relating to legalization of marijuana, essentially one need look to a federal power Section 91(27) which grants authority to the federal government. It reads: The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. Legalization of cannabis falls under that head of jurisdiction.

Especially since the Second World War, an intricate network of federal-provincial working committees has developed to ensure that fewer and fewer public policy issues need judicial resolution. For example, most provinces have intergovernmental affairs offices. Ministers and senior officials from all governments, and often including the three territories, meet to work deals on finances and policy. Federalism is oiled by money.

But the proposed Cannabis Act may challenge the workings of that system.

Thus when Parliamentary Secretary Bill Blair, Justice Minister and Attorney General Jody Wilson-Raybould, Public Safety Minister Ralph Goodale and Health Minister Jane Philpott collectively announced tabling of the cannabis bill in Parliament, they were also indirectly announcing that Canada’s federal system would, once again, be challenged.

Based upon a Nov. 30, 2016, final report of the task force on cannabis legalization and regulation, the bill’s 226 sections and schedules purport to cover most imaginable aspects of this massive new policy initiative.

Much detail of implementation and enforcement rests with provincial governments and already stretched police departments across Canada. It parallels our existing criminal law, defined in large measure by Canada’s Criminal Code and related provincial legislation.

The bill is extremely complex and will take years of court challenges before it might loosely be described as a fully working system.

Furthermore, while the legalization of pot may appeal to many, including those who have invested in large commercial marijuanagrowing operations such as those in Leamington, there is also widespread apprehension about the capacity to enforce a multiplicity of regulations. There is especially concern about the cost to provincial and local enforcement authorities. There are also legitimate concerns about the impact of widespread marijuana use on domestic violence and road safety.

Perhaps the worst thing the federal government could do would be to set a time limit for provincial implementation.

Arguably, of course, if one examines the history of legalization of production, sale and consumption of alcohol in Ontario, it offers parallel lessons. However, booze took years to reach the stage it is at today, with it now available in supermarkets.

Cannabis legalization is coming in one full swoop. Experience will be gained as “on-the-job” political training.

It’s not a sure bet.