This paper examines the Supreme Court of Canada’s decision in Murray-Hall v. Quebéc (Attorney General), upholding Québec’s restrictions on personal cultivation and possession of cannabis despite federal legalization. This decision is contextualized within a broader empirical analysis of the Supreme Court’s jurisprudence on the criminal law power under section 91(27) of the Constitution Act, 1867. By systematically reviewing Supreme Court cases from the Margarine Reference to Murray-Hall, the authors identify two trends: (1) increasing judicial deference to provincial legislative jurisdiction in criminal law matters since the enactment of the Charter, and (2) a continued judicial willingness to limit federal jurisdiction in cases where law does not address recognized social problems. Focusing on the substances of margarine, tobacco, and cannabis, the authors conclude that the reach of the criminal law frequently depends on whether the substance is socially and publicly considered to be a social problem. The authors argue that the Charter’s rights protections and the rise of cooperative federalism have redirected rights-based considerations away from division of powers issues, facilitating provincial autonomy in criminal-adjacent areas. After examining the issues of assisted reproduction and personal genetic information, the analysis concludes by suggesting that future constitutional disputes regarding cannabis and other evolving areas will likely shift focus to Charter compliance rather than jurisdictional boundaries, reinforcing a nuanced, cooperative approach to federalism in Canada’s criminal law landscape.
Kaushal et al. (Thu,) studied this question.