Legalizing cannabis is one of the most significant public policy changes in decades. In order for this small revolution to succeed, the Government of Canada must take into account Canada’s diversity. This includes respecting the choices of other levels of government, writes André Pratte.

A small-scale cannabis grow operation with a few plants for personal use in Toronto. Ottawa should not prevent Manitoba and Quebec from banning the growth of marijuana plants at home, writes André Pratte.  (Marcus Oleniuk/Toronto Star / Toronto Star)

By André PrattéOpinion

Thu., April 5, 2018

We thought the matter was settled, but recent statements by the federal minister of justice indicate otherwise. If passed in its current form, the federal cannabis legalization bill will very much be at odds with Manitoba’s and Québec’s new legislation, which would prohibit home cultivation.

In that case, Minister Jody Wilson-Raybould said last week, “federal law would prevail.” In other words, Ottawa will stop both provinces from banning home cultivation. No matter how you look at it — from a public health, constitutional, or political standpoint — the Trudeau government’s decision is not going over well.

Let’s take a closer look at the problem. Under its legalization legislation, Bill C-45, the federal government would make it legal for Canadians to grow up to four cannabis plants at home. However, Ottawa indicated that the provinces would have the right to allow the maximum number of plants to be less than four. Quebec and Manitoba took the government at its word and chose a ceiling of … zero. As such, it will be illegal to grow cannabis at home in those two provinces.

Minister Wilson-Raybould reacted negatively. Last February, she asserted that “there are limits on how restrictive the provinces can make the provisions on home cultivation.” Her comments sparked sharp reactions in Quebec City and Winnipeg. Things calmed down, however, when the federal government indicated that it had no intention of challenging provincial law in court.

Last week, before a Senate committee that is studying Bill C-45, Wilson-Raybould confirmed that position. However, she added that if an individual were to challenge Quebec’s law or Manitoba’s law — which is likely to happen — then, “it would be incumbent upon us to defend” the federal legislation.

The minister rejected the idea of an amendment to protect a province’s right to ban home cultivation: “We are putting in place a national regime for the legalization of cannabis (…) If any conflict is found by the court (between provincial law and federal law), the federal law would prevail over the provincial law.”

Conclusion: the Trudeau government may have diffused the situation by indicating that it would not challenge provincial laws, but it was little more than window dressing. Essentially, its position has not changed. There is no way the government is going to allow the provinces to ban home cultivation which, in the federal government’s eyes, has to be authorized from coast to coast to coast.

This narrow interpretation of cooperative federalism seems especially ill advised in this case. Home cultivation, by the federal officials’ own admission, was one of the topics that fuelled some of the lengthier debates within the machinery of government before a decision could be reached. What impact will this have on the illegal market? What are the risks to young people? How will property owners and renters reconcile this situation?

With so many lingering questions, the Government of Canada is in no position to impose its decision on the provinces as though it suddenly had all the answers. It should instead respect the fact that upon consulting the public in its jurisdiction, a provincial government has found that banning home cultivation is the best way to protect public health and combat the illegal cannabis trade.

The Senate’s study of Bill C-45 is ongoing. There is still time for the federal government to amend Bill C-45 in order to protect the right of the provinces to ban the home cultivation of cannabis. If it fails to do so, then there is a good chance senators will propose such an amendment. After all, isn’t protecting regional interests at the heart of what we do in the upper chamber?

Legalizing cannabis is one of the most significant public policy changes in decades. In order for this small revolution to succeed, the Government of Canada must take into account Canada’s diversity. This includes respecting the choices of other levels of government.