Quebec’s law society is trying to stop the new provincial government from cracking down on legal cannabis. Last month, the Barreau du Québec (Bar of Québec) published a seven-page commentary on Bill 2, which the governing Coalition Avenir Québec (CAQ) introduced in December barely two months after winning office. Among other things, the proposed legislation would raise the minimum age of cannabis consumption in the province to 21 from 18 and prohibit virtually all forms of public consumption. If passed into law, Bill 2 would risk both constitutional challenges and possibly even countering the objectives of federal cannabis legalization, which Barreau de Québec bâtonnier (elected leader) Paul-Matthieu Grondin reminds Cannabis Professional is to defeat organized crime. That conversation is reproduced below.
Cannabis Professional: As far as you know, what is the current status of Bill 2?
Paul-Matthieu Grondin: I believe they have completed their preliminary consultations with groups and that they are now moving on to the examination section, by, section… but I have no way of knowing when [it will receive royal assent], it could be a matter of weeks or a matter of months. It depends on how quickly the government decides to push it through.
CP: The commentary you published last month calling on the province to back down on some of the key components of Bill 2 - specifically banning all public cannabis consumption and raising the age limit to 21 from 18 - is it standard for the Quebec Bar to make such statements on proposed legislation, or was this a special case?
PMG: It is standard. We go in front of parliamentary commissions pretty often so in any type of legislation we usually send a commentary and get invited to comment on it further.
CP: How does the process of putting a commentary like that together actually work?
PMG: We have an advisory committee here and we have lawyers who know what they are talking about in specific fields of law and then it would go through the Board of Directors for final approval and after that it gets sent out publicly. It is a well-oiled process. There are some pretty smart people on those committees.
CP: Part of your commentary warns of a potential constitutional challenge to Bill 2 if it does end up becoming provincial law, on what basis could such a challenge be made?
PMG: Age discrimination, basically. This bill, what it does is say you wouldn’t be able to purchase cannabis between the ages of 18 and 21 and prior to that it was allowed at 18. There is no relevant precedent for that anywhere in Canada. And the truth of the matter is at 18 you can do pretty much anything else you want within the boundaries of legislation, so why would 18, 19 and 20-year-olds not be allowed to purchase cannabis when they can purchase alcohol and tobacco the objective of the [federal cannabis] legislation is to take organized crime out of the sale of cannabis? That is really the objective and we do not feel that late teenagers would have sufficient protection and there could be a lawsuit based on age discrimination.
CP: Since Bill 2 also aims to severely restrict where cannabis can be consumed, effectively banning consumption outside of private residences, could a potential constitutional challenge also be made on the basis of discrimination against renters and/or those without access to private residences?
PMG: It could be something like that. The thing is, whenever you table a legislation, there needs to be an objective to the legislation. So here, the objective is not to have anyone smoke weed, that is not the objective. The objective is to protect people from organized crime so that they would be doing something legally that might have been unlawful that a large segment of the population did before. That is the objective of the law, being able to control what goes into the substance in the market and so forth. The objective is not to go towards more social acceptability of cannabis. But this bill also says, as you mention in your question, that you cannot consume publicly. Well, if you can’t smoke cannabis or consume cannabis in any sort of fashion, if you cannot do it anywhere, then how are [is the province] going towards the objective of the [federal] law? It is an interesting debate and we definitely want to raise this point.
CP: Just to summarize, is your argument that the key components of Bill 2 run counter to the objectives of the federal Cannabis Act?
PMG: Here is my nuanced answer: yes.
CP: Have you heard any indication, either from colleagues or people closer to the process, to suggest the provincial government is any less motivated to pass Bill 2 as it currently exists than they were when it was first introduced?
PMG: My understanding is they still want to pass the bill as-is.
CP: If the bill does get passed and a constitutional challenge is made and is successful, would the result be to invalidate the bill, or would it require the provincial government to simply alter the bill to address the specific issue raised in that specific case? Or any other possible consequences?
PMG: First of all, it is important to note we are probably far off from that. The bill hasn’t been adopted yet so we are talking about a potential constitutional challenge to a bill that is not in force yet. But having said that there would be multiple potential solutions if a challenge was to be put forward and was successful, multiple possible conclusions actually, including the ones you mentioned, but there is ultimately no way for us to know what a variety of judges might decide in the end.
Jameson Berkow