Decision from Court of King's Bench to be appealed
A Manitoba Court of King’s Bench decision upholding the province’s prohibition on individuals growing cannabis plants for non-medical usage will be appealed by the applicant.
“I'm hopeful that the Manitoba Court of Appeal will see the light and will understand the errors made, and they’ll either reverse the decision or send it back down for reconsideration,” says Toronto-based cannabis lawyer Jack Lloyd. BC-based Kirk Tousaw was his co-counsel on the case.
In Manitoba, cannabis is regulated via The Liquor, Gaming and Cannabis Control Act, which prohibits possessing and cultivating cannabis plants for personal use. The province also set fines for contravention of the new provisions relating to the distribution, use and sale of cannabis.
The appellant argued that given the federal Cannabis Act, Manitoba’s legislation is “ultra vires, unconstitutional and of no force or effect.” The court rejected this argument in Lavoie v. The Government of Manitoba, 2023 MBKB 146.
Manitoba, however, is not the only province to ban recreational home growing. Quebec does as well, and in a case that went all the way to the Supreme Court of Canada, Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, the court decided that the Quebec legislature was in the right to make that decision according to the powers conferred upon it by s. 92(13) and (16) of the Constitution Act, 1867, and given that “state monopoly that oversees each step leading up to the purchase of cannabis by citizens [was created] in order to protect the health and security of the public.”
As noted in the decision, “The parties agree that the analytical framework set out by the SCC in Murray-Hall is the correct framework to be applied in this case. It is the outcome of the application of that framework upon which the parties disagree.”
Asked to reflect on the implications of Murray-Hall, Lloyd says: “The key issue is in Murray-Hall, they argued, ‘we use the tax generated from these sales to build hospitals, to build infrastructure within Quebec. There’s a valid property and civil rights issue, which is s. 92(13). That’s a valid provincial head of power. Because they couched their legislation in that head of power, there was a logical connection, which is the fact that the province controls these sales. I don't agree with it, but that argument made sense in Quebec for Quebec workers with a Quebec law. With the Manitoba case, Manitoba has private retailers, and the Manitoba legislation was significantly more penal in nature. It's punitive legislation. And so ultimately, those two factors, in our view, differentiate Lavoie from Maria Hall.”
Considering the Maria Hall interpretation, Justice Shauna McCarthy wrote, "With respect to the issue of federal paramountcy initially raised by the Applicant, both parties agree that Murray-Hall is dispositive of that issue. The Applicant concedes that the finding by the SCC that the Quebec prohibition on home cultivation neither creates an operational conflict with the Cannabis Act, nor frustrates that Act’s purpose, applies equally in this case. The Applicant has therefore abandoned his challenge to the Manitoba legislation on that ground.”
The crux of the decision lies in the government’s intention with the legislation, which it stated was to remove “access to an unregulated source of cannabis that poses public health and safety risks” and “limit the opportunity for minors, or the black market and gangs, to gain access to cannabis,” among other things.
In stating her reasoning, Justice McCarthy wrote: “In my view, the position of the Respondent on this issue is more persuasive. While I agree that the word ‘cultivation’ is not contained in the stated purpose of the LGCCA, a review of the entire legislative scheme as it relates to cannabis suggests that the purpose of the legislation was to regulate all aspects of the purchase, distribution, and sale of cannabis in a manner that provided for the safety and protection of the public. To achieve that purpose, the legislation requires that all cannabis made available for sale in Manitoba be obtained from government sources, that all suppliers be licensed, that there be prohibitions against sale to consumers under the age of 19, that the quantity of possession of cannabis from other sources be limited, and that in home cultivation be prohibited.”
As to whether the legislation will achieve its objective by banning home growing of plants, that’s not for the court to decide, explained Justice McCarthy.
“The wisdom, policy, or efficacy of the law in achieving its purpose is not relevant to the question of the vires of the legislation. The legislature ‘…is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of powers analysis…’”
She also ruled that she did not find the penalties punitive.
And when it came to the division of powers question, the justice landed in the middle, echoing the Murray-Hill decision, which said ‘…[t]he regulation of the use of drugs, including cannabis, has both federal and provincial aspects, which makes it conceivable that laws enacted by both levels of government will apply concurrently….”
Lloyd said he is determined to keep pushing his client’s position forward through the system, but he also raises the possibility that he may not have to keep doing so.
“The case is very important to a significant number of Manitobans. It makes sense that we get some guidance from an appellate court on these important issues,” says Lloyd.
“There’s been a change in government in Manitoba. [The new] government, I suspect, is significantly more friendly towards cannabis. I anticipate that there may be legislative change in this area before the Court of Appeal rules on it, but who knows what will happen.”
