Why marijuana legalization will likely include bans on home grows

On Monday, a Senate committee passed an amendment to federal marijuana legalization laws allowing provinces to ban home grows if they want to.

The change amounts to a Liberal surrender on an issue that seemed to be headed to a courtroom battle with Quebec, which will ban residents from growing their own pot when it’s legal.

Manitoba has also said it will ban home grows. But the most visible and dramatic confrontation on the issue had been between Ottawa and Quebec.

The amendment was supported by Sen. Tony Dean, the bill’s sponsor in the Senate, which implies government support. It still has to pass the full Senate and go back to the Commons, but the government seems to have signalled a decision. 

“There’s a pretty decent chance that this proposed amendment is going to make its way into law,” says Ottawa lawyer Trina Fraser. “This is something that Quebec and Manitoba residents are going to have to live with, at least for some period of time. It becomes more of a provincial political issue than anything else.”

In general, Canadians will be able to grow up to four recreational marijuana plants per household after legalization. Some provinces have imposed their own rules — Alberta, for example, won’t allow marijuana growing outdoors, and New Brunswick will only allow it indoors, in a separate locked space.

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But Manitoba and Quebec’s laws raised the issue of whether regulation could go as far as banning home grows entirely. 

In February, Quebec issued a blunt challenge to Ottawa on the issue, saying that its home-grow ban was within its powers and that the province would defend it in court.

“We are going to affirm our jurisdiction … and four years, three years, two years, one year, six months before an election, we are going to do that,” Quebec cabinet minister Jean-Marc Fournier said. 

At the time, federal Justice Minister Jody Wilson-Raybould said that “there are limits” to the restrictions provinces can place on marijuana use, and in the event of a showdown in court “federal law would prevail.”

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Legal experts Global News spoke to tended to agree.

A legal rule called “federal paramountcy” kicks in when there is a direct conflict between federal and provincial law: the provincial law will be declared void, to the extent of the conflict.

A document about cannabis legalization published last May by the federal justice department stated a clear position that provinces can regulate home grows but not actually ban them:

“A lower plant limit may be set in provincial legislation that is consistent with the federal objectives and allows for dual compliance with both provincial and federal limits, however a complete provincial prohibition on personal cultivation could be seen as frustrating the federal objective and thus be deemed inoperable.”

“This appears to be a fairly clear staking-out of turf,” Archie Kaiser of the Dalhousie University law school said at the time.

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“I think that’s a problem for the province that would seek to ban personal cultivation.”

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2:48 Liberal MP Bill Blair discusses marijuana black market during Senate Committee meeting

However, the new amendment leaves people charged for growing pot in Quebec and Manitoba with no basis for saying that the province is going beyond its authority.

“There are lots of very strong opinions on this topic. Law enforcement doesn’t like it, real estate associations don’t like it, landlords don’t like it – there are lots of people who are just worried about this, and then there are people who believe that this is not real legalization if you can’t even grow a few plants in your house,” Fraser says.

But she sees the concern as overblown.

“I don’t think we’ll have hundreds of thousands of mouldy houses and electrical fires across the country. There aren’t going to be that many people who would choose to go to the trouble of cultivating, especially indoors. Putting a couple of plants in your garden is one thing, but it’s an undertaking to grow these plants in your house.”

“I don’t think a lot of people will bother doing it. To the extent that they do, I don’t think it’s that big a deal.”

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