We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s professor and former Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law.

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00:05 Welcome to Fundamentals of Canadian Law, I’m Matt Shepherd. We all know the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked and how that intricate relationship is key to understanding how hot decriminalization will happen. Cherie’s also the creator of the Constitutional Law Module for LAW 201/701, in the Queen’s Certificate in Law, the only online program of its kind offered by a law faculty in Canada. You can find out more at takelaw.ca

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00:49 MS: So I’m talking to Cherie Metcalf, who's the Associate Dean Academic at the Law School and the developer of the Constitutional Law Module for Law 201/701. Hi Cherie.

00:58 CM: Hi Matt.

00:59 MS: So basically in July of 2018, July of this year, a bill is becoming Law, and that marijuana will be legalized in Canada so I was wondering if you can kind of unpack some of the Constitutional Law that sort of surrounds all what's happening with that.

1:25 CM: Sure Matt, I'd be happy to talk about that. Marijuana legalization is gonna be exciting for some people. And it's exciting for Constitutional Law scholars as well because this is a really good example of how Canada's Federal Constitution can be seen in action. So when we say that marijuana is gonna be legalized, it's actually going to be a very complicated package of laws that are to be passed. The main thing that people are thinking about is the decriminalization of the simple possession and sales of marijuana for basically personal consumption so it'll be much more like alcohol or tobacco, right. So that's sort of the federal piece of the picture, but once you decriminalized it, then there's another piece of the picture that's about how we actually gonna sell it, and regulate it, and market it, and who's gonna be able to buy it and right. So that's actually a piece of the legalization of marijuana that's going to be largely influenced by the provinces because under the distribution of legislative powers, its provinces that had the power to regulate industries that are operating within their jurisdiction.

2:27 MS: So is alcohol a good model to kind of look at this at, in terms of how the powers break down?

2:32 CM: Alcohol is actually something where you know in the past, this is, this is a very similar history right, so we had sort of an attempt to have total federal prohibition and that wasn't very successful and so over time the federal government essentially, they came to this model where they had limited prohibitions and certain activities are prohibited but the provinces basically do a lot of the regulation in terms of setting up rules for who it is that can actually distribute alcohol, who can buy it, where the places that you can consume it, and a lot of that kind of model is how some of the provinces are actually thinking about rolling out their regimes for legalizing marijuana.

3:14 MS: So they’re kind of using alcohol as a template.

3:16 CM: Yeah, that's right because they sort of dealt with a lot of the issues around legalization in that context already.

3:24 MS So, I mean what happens? It seems like the federal government can decriminalize it, so it's not a crime to have marijuana anymore. But then the province is kind of responsible for saying who can sell it, and how they can sell, and to whom, can a promise, just say, no we're not going to let it be sold here?

3:40 CM: So there's you know there are some limits to the way that provinces and the federal government powers interact right. So the federal government has got the federal criminal law power and that essentially allows them to set up these prohibitions that are backed by penalties to serve sort of criminal public purposes. So it's not true that sort of anybody's gonna be able to buy marijuana right. So there are still strict prohibitions under the criminal code but what they've done is sort of carve out exemptions, okay. So there are exemptions now that allow people to sort of legally possess and consume marijuana as individuals up to a specified amount to, you know, have exceptions they can grow plants, but only again a source specified amount and so on right. The way federal criminal law works is it basically prohibits things and then it carved out exemptions. The exemptions you don't have a positive right to do something that's exempted from criminal law and so yeah provinces actually have a jurisdiction to regulate activity that isn't prohibited under criminal code.

4:51 MS: Right.

4:51 CM: So this is why there's sort of an, it's called an inherent double aspect to federal criminal law power, because we often have federal probations sitting side-by-side with provincial law that's actually regulating activity around things that are not prohibited. Or even things that are sort of prohibited, and it can sometimes look like provincial laws are actually stricter than the federal criminal law. So a good example is prohibitions of tobacco advertising, right. So there's a big piece of federal legislation that prohibits most of, most forms of advertising for tobacco products and that's been upheld by Supreme Court as valid criminal law. Saskatchewan actually brought in its own legislation also regulating the way that businesses could display information about tobacco products and they made it sort of stricter than the provincial, or then the federal criminal law, because they impose restrictions that essentially no information that was exempted from the criminal law could even be displayed in places where there were people under 18, so it was more restricted. But the court actually upheld that because essentially they were serving the same purposes and they have quite a strict idea of what is a conflict so as long you can comply with both, yeah provinces can actually be stricter about it.

6:15 MS: But it's kind of a one-way street, like other a province can be more strict than federal.

6:19 CM: A province can be more strict but they can't, so if there's a criminal prohibition on something, they can't legalize something that the federal criminal laws prohibited.

6:27 MS: Right.

6:28 CM: So yes so if the federal government says well you can have up to this amount for personal possession without it being criminal, provinces are stuck with that. They can't authorize something more than that under their provincial regulatory machines. 

6:44 MS: So practically, what's going to happen in July 2018? Do the provinces have to kind of roll-out their law concurrent with this Bill becoming Law in the Federal Parliament? Or is there a bit of wiggle room for provinces to sort of keep figuring it out for a little while after becomes in the Canadian, at the Federal level?

7:03 CM: Okay so it's probably gonna be best for provinces to actually have their regulatory regimes ready to go at the same time that these exemptions to the criminal law come into force. If provinces don't have a regulatory regime ready, then the thing that can happen is essentially you have exemptions, things that are permitted, that are outside the scope of federal criminal law power that are just kind of unregulated at the provincial level, right. So it is a challenge and that's why you know one of the other important ideas about Canadian federalism is that it's kind of a cooperative model, so often, the 2 levels of government will try to work together to try to coordinate their strategies on things like a big legislative change like this, so most of the provinces are very busy right now consulting and coming up with their own strategies of exactly how they plan to put regulatory regimes in place.

8:07 MS: So can we expect to see, I mean, we've sort of mentioned alcohol before as a model but we can kind of expect across the board, something that's similar?

8:15 CM: I mean I think most provinces, yeah we'll have something that's quite similar and in part, that's partly a reflection of the fact that the pretty tight timeline right. So it's not an extensive period of time to come up with something completely new, because there are lots of important implications about exactly how you might legalize it right. So you know, the provinces are concerned about things like health effects, protecting you, you know, where are you actually gonna be able to use it, how do we regulate the industrial participants, you know. The federal criminal law has to be set up, the exemptions have to be set up, those regulatory provisions that allow companies to be exempt to produce enforcement schemes have to be put in place, so there's a lot of work to be done, and it makes sense to align it with regimes that track these other similar products, where we know there are some harmful effects that can come from using it, but they're not so severe that we want a model that just absolutely has it totally prohibited.

9:22 MS: Right.

9:23 CM: Yeah.

9:23 MS: But in summary, I mean it's basically the Federal - since at the Federal Level that that's where crime is kind of determined and defined, they can decriminalize it but it's up to the provinces to sort of set the structure in which it can be sold and controlled and used.

9:37 CM: Right. That's exactly right and that's how those two pieces fit together.

9:41 MS: Thanks Cherie.

9:42 CM: Yeah, you’re welcome.

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9:45 MS: Thanks to Cherie Metcalf. If you're interested in Constitutional Law, you may want to look into Law 201/701, Introduction to Canadian Law, at takelaw.ca. 

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who's also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. If you like this podcast, rate and recommended it on iTunes. We appreciate it. Thanks for listening.

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