Weekly Exercise on Constitutional Law

Part 3, May, 2023

Question 1 (40 Marks) (45 Minutes)

The federal Cannabis Act creates a strict legal framework for controlling the production,
distribution, sale and possession of marijuana and other forms of cannabis. The Act de-criminalizes
recreational use of marijuana in limited circumstances and explicitly leaves in place more
permissive medical marijuana regulations that were created in 2002. The latter permit medical
users to obtain marijuana in amounts and from sources that would still be criminal under the
Cannabis Act.

Jane suffers from Glaucoma, a medical condition in which pressure builds up within the eye
causing discomfort, visual impairment and, in some cases, blindness. She is being treated for the
condition by an ophthalmologist, Dr. Gloria Singh. There is no consistently effective treatment for
Glaucoma, but smoking marijuana has been shown to relieve symptoms, and in some cases to
slow down the disease’s progression.

Under the 2002 medical marijuana regulations a physician can certify a patient’s medical need for
marijuana and thereby exempt that person from Cannabis Act restrictions. Dr. Singh certifies Jane’s
medical need for marijuana and issues her a prescription for marijuana in accordance with the
2002 regulations.

As a result of issuing that prescription, the BC College of Physicians and Surgeons (the governing
body of BC’s medical profession) finds Dr. Singh to be in violation of the British Columbia Medical
Practitioners Act (hereinafter MPA), section 89.1, and suspends her license to practice medicine for
six months. The section reads:

89.1. A physician who assists a patient in obtaining potentially unlawful narcotic drugs for
treatment of an illness is guilty of professional misconduct and liable to have their license to
practice medicine suspended for a minimum of three months.

Section 89.1 was amended to the MPA just months after the federal Cannabis Act – with its explicit
continuation of the 2002 medical marijuana regulations – was enacted. When introducing the
amendment in the legislature, the British Columbia Minister of Health said this:

This amendment is motivated not by criminal or moralistic concerns about the use of drugs – that
is for our counterparts in Ottawa to worry about – but rather by a concern about the health of
British Columbians. It falls squarely within the stated purpose of the Act, which is “to enhance the
quality of medical practice and reduce incompetent, impaired or unethical practice.” Narcotics,
including marijuana, have serious harmful effects – both physical and psychological – on those
who use them, and there is scant scientific evidence of any medical benefits. As a government, it is
our duty to ensure doctors in the province meet the highest standards of medical practice, and, in
that spirit, s. 89.1 makes it an offense for doctors to prescribe potentially unlawful narcotics for the
treatment of illness.

The majority of MLAs who spoke in favour of section 89.1 during legislative debate, all of them
from the Government side, said little about health, but expressed concerns mainly about, as one
MLA stated, trying to “stop the moral degeneration of Canadian society into a haven for dope-
heads, druggies and criminals.” The Government had recently been elected on a “law and order”
platform, and a promise to eradicate all illicit drug use in the province.
Dr. Singh plans to appeal her license suspension. She seeks your opinion on the point that whether
s. 89.1 of the MPA valid under sections 91 and 92 of the Constitution Act 1867?

[Hint: Refer to topics - “Federalism”, “Criminal Law” and “Peace, Order and Good Governance”.]

First Issue

Issue

1. Is Section 89.1 of the MPA an invalid exercise and could have been enacted under head of
“criminal law” of the federal government?

Rule

Under Section 91(27) of the Constitution Act, 1867, all matters relating to criminal law are under
parliament’s exclusive jurisdiction.

Section 92(15) of the Constitution Act, 1867 authorizes provincial legislatures to make laws in
relation to “the imposition of punishment by fine, penalty or imprisonment for enforcing any law of
the province made in relation to any matter coming within any of the classes of subjects enumerated
in this section.”

Test for valid exercise of criminal law power in Reference re Firearms Act

Analysis

Section 91(27) and Section 92(15) have imported a substantial degree of concurrent provincial
jurisdiction to enact penal laws which are indistinguishable from federal criminal laws. This has given
rise to difficult issues of paramountcy where similar federal and provincial laws co-exist.

Reference re Firearms Act lays down the test to be considered a valid exercise of criminal law power.
The federal legislation must

a. Have a valid criminal law purpose, such as public peace, order, security, health or morality
b. Be connected to a prohibition
c. Be backed by a penalty for violation

In Reference re Firearms Act, the Act in “pith and substance” was directed to enhancing public safety
by controlling access to firearms. Its purpose was to deter the misuse of firearms, control those given
access to guns and control specific types of weapons. It was aimed at a number of “mischiefs”
including the illegal trade in guns, both within Canada and across the border with the United States,
and the link between guns and violent crime, suicide and accidental deaths. The purpose of the
Firearms Act conforms with the historical public safety focus of all gun control laws. The Firearms Act
possesses all three criteria required for a criminal law. Gun control has traditionally been considered
valid criminal law because guns are dangerous and pose a risk to public safety. The regulation of guns
as dangerous products is a valid purpose within the criminal law power. That purpose is connected to
prohibitions backed by penalties. The provinces have not established that the effects of the Act on
provincial jurisdiction over property and civil rights are more than incidental. The mere fact that guns
are property does not suffice to show that a gun control law is in pith and substance a provincial
matter. However, that did not impede the ability of province to create their own regulation schemes
and regulate guns under their own authority over property.

In Reference Re Genetic Non-Discrimination Act, 2020, the Parliament passed the Genetic Non-
Discrimination Act to make rules on genetic testing related to disease. It made it a crime to force
someone to get that testing, or share their results, to sign a contract or buy something. The
Parliament of Quebec did not think Parliament had the power to make these rules. The Government
of Quebec asked the Quebec Court of Appeal to decide if the rules were unconstitutional. The
Attorney General of Quebec said the rules were unconstitutional because they were really about
making rules for insurance and employment contracts and promoting health and not making criminal
law. The SCC held that, the Parliament had the power to enact the Genetic Non-Discrimination Act
under S. 91(27) of the Constitution Act, 1867. The pith and substance of the challenged law is to
protect individual’s control over their detailed personal information disclosed by genetic tests. The
purpose for this was to address Canadian’s fears that their genetic test results will be used against
them and to prevent discrimination based on that information. This matter is properly within
Parliament’s power over criminal law. The provisions are supported by a criminal law purpose
because they respond to a threat of harm to several overlapping public interests traditionally
protected by the criminal law, namely autonomy, privacy, equality and public health.

In Boggs v. The Queen, the SCC struck down a CC provision as unconstitutional which said that a
driver’s license can be suspended for breach of a variety of provincial regulations.

In Reference Re Validity of Section 5(a) Dairy Industry Act, a law was enacted, whose purpose was to
protect the dairy industry. The court struck down the prohibitions on manufacturing and possession.
The evaluation was that a key aspect of criminal law was that there had to be an objective related to
“peace, order, security, health or morality”. The real motive behind the legislation was trade related
rather than an appropriate objective for criminal law. Thus, the court ruled that the prohibition was
not a valid criminal law. Only the ban on importation was upheld by the Court because international
trade is with the federal government, not the provincial governments. It is to be noted that, federal
government cannot just say something is a crime. A valid criminal law purpose requires public evil.
Criminal law purpose means an “an evil, injurious or undesirable public effect against which the law
is directed”.

There is a valid criminal law purpose such as health and morality. The Federal Cannabis Act creates a
strict legal framework for controlling the production, distribution, sale and possession of marijuana
and other forms of cannabis. The Act de-criminalises recreational use of marijuana in limited
circumstances. It explicitly leaves in place more permissive medical marijuana regulations that were
created in 2002. At the same time, this Cannabis Act provides for a situation wherein a physician can
certify a patient's medical need for marijuana and thereby exempt that person from Cannabis Act
restrictions.

The law is connected to a prohibition. The provisions of Cannabis Act entail medical users to obtain
marijuana in amounts and from sources that would be criminal.

The law is backed by a penalty for violation. The facts do not prescribe any violation in the federal
legislation.

The main purpose of the law is to enhance the health of British Columbians. The amendment of
Section 89.1 just after the enactment of federal Cannabis Act, with its explicit continuation of the
2002 medical marijuana regulations points to the disconnect between the provincial legislation and
the federal legislation. The aim of the provincial legislation is to ensure that doctors in the province
meet the highest standards of medical practices. It makes an offence for doctors to prescribe
potentially unlawful narcotics for the treatment of illness.

If a provincial law is ancillary to federal law i.e., it enables the federal law to function appropriately
and upholds it in its entirety, then this is acceptable and not an infringement.
Conclusion

In my opinion, to conclude, the regulation of physicians conduct does not fall under the head of
“criminal law” of the federal government.

Second Issue

Issue

2. Is Section 89.1 of the MPA an invalid exercise and could have been enacted under head of
“peace, order and good governance” of the federal government?

Rule

S. 91 confer on the federal Parliament in terms of POGG power “to make laws for the peace, order
and good governance of Canada, in relation to all matters not coming within the classes of subjects
by this Act assigned exclusively to the legislatures of the province”.

Test for national concern under the “peace, order and good governance” laid down in References Re
Greenhouse Gas Pollution Pricing Act

Analysis

POGG power has been the trunk from which three branches of legislative power have grown,
namely:

- The “gap” branch

One of the roles of the POGG power is to fill the faps in the scheme of distribution of powers, heads
that the drafters of the Constitution forgot to think about, but would have unambiguously allocated
to federal Parliament if they had.

- The “national concern” branch

The “national concern” test relates to a situation wherein a subject matter of a legislation becomes
“the concern of the dominion as a whole”.

- The “emergency” branch

The emergency branch of the POGG power is typically confined to the temporary and extraordinary
role required for national regulation in time of war or another emergency.

The current case has to be tested if the test of “national concern” applies in the instant case. There
are cases wherein the uniformity of law throughout the country is not merely desirable, but essential
in the sense that the problem “is beyond the power of the provinces to deal with it”. National
concern requires singleness, distinctiveness and indivisibility that clearly distinguishes it from matter
of provincial concern and it makes sense to deal with it on a federal level. To determine if a matter
has attained the required degree of singleness, distinctiveness and indivisibility that clearly
distinguishes it from the matter of provincial concern, the following Provincial Inability Test is
considered. The most important elements of national concern is a need for one national law that
cannot realistically be satisfied by cooperative provincial actions because the failure of one province
to cooperate would carry with it adverse consequences for the residents of the other province.

In References Re Greenhouse Gas Pollution Pricing Act, the question for the Supreme Court was
whether the federal government had the authority to pass a law that puts a price on carbon. The
Supreme Court of Canada rules that federal carbon pricing law is constitutional. Global warming
causes harm beyond provincial boundaries. It is a matter of national concern under the “peace, order
and good government” clause of the Constitution. The majority notes that the term “carbon tax” is
often used to describe the pricing of carbon emissions. However, they said that this has nothing to
do with the concept of taxation, as understood in the constitutional context. The majority concluded
that the fuel and excess emission charges imposed by the Act were constitutionally valid regulatory
charges and not taxes.

In the instant case, the legislation is enacted out of concern about the health of British Columbians.
The main purpose of MPA is to "enhance the quality of medical practice and reduce incompetent,
impaired or unethical practice". Thus, the appropriate legislative head is not “peace, order and good
governance” of the federal government.

Conclusion

The federal government is not competent to enact this legislation under POGG power, since the
matter is not of “national concern”.

Question 2 (20 marks) (30 Minutes)

Short Notes Question

a. Why has the metaphor “living tree” been used in relation to the Canadian Constitution? (10
Marks)

[Hint: Refer to topic - Interpretation of Charter, including relevant case law.]

Constitution expressed in wide language to accommodate wide and unpredictable set of facts. It is
challenging to amend and likely to stay in force for a long time. Thus, there is a need for flexible
interpretation to adapt to societal changes. In Edwards v. AG Can, living tree is capable of growth
and expansion. In Same sex Marriage Reference, it was not bound by the original meaning of
marriage. Canadian constitution is a living tree which by wat of progressive interpretation
accommodates realities of modern life.

b. A private company enforces a new rule which is discriminatory in nature. Can an employee bring
a charter claim against the private company? (10 marks)

[Hint: Refer to topic - Application of the Charter, including relevant case law.]

The default position is that, Charter does not apply to private bodies. But where Parliament has
delegated power of compulsion to a body / person, the Charter will bind the delegate. Outside of
government sphere, Charter will only apply to persons exercising statutory authority. If a statute
applies in some manner to a private body, then Charter will apply.

In Greater Vancouver Transportation Authority v. Canadian Federation of Students, the Canadian

Federation was refused from being able to place ads on buses. They made a challenge under S. 2.
The main issue was that, are transit corporations, or private entities, operating public transportation
system actors under the Charter? It was held that, there are two ways to determine whether the
Charter would be applicable. The first is by enquiring into the nature of its activities. If the entity is
found to be government, either because of its nature or substantial control, its activities will be
subject to the Charter. If an entity is not itself a government entity, but performs government
activities, only those activities which can be said to be government in nature, it will be subject to the
Charter. The Charter applied to the policy of a local transit authority banning political messages. The
transit authority, controlled by local government, thus came within the meaning of “government” in
S. 32. The application of the Charter followed from the transit authority’s statutory power to regulate
ads on buses. The Government should not be able to shrink or reduce Charter responsibilities by
conferring powers onto another entity. The public transport has massive public interest element, and
thus Government plays a large role.

in Eldridge v. BC, the main issue was that, is a hospital subject to the Charter? It failed to provide sign
language interpreter for deaf people, if done by a body subject to the Charter, this would have been
a violation of S. 15 (equality clause). The SC looked into BC’s Hospital Services Act which funded the
provision for hospital services. The hospital was implementing a specific government policy. The
Charter was applicable on the hospital.