Canada: Senators Consider Showdown Over Home-Grown Cannabis As Pot Legalization Looms

Photo Credit: Robert F. Bukaty

Senators are weighing the pros and cons of a showdown with the House of Commons over the government’s rejection of a number of Senate amendments to the cannabis legalization bill, including one that would have allowed provinces to ban home-grown marijuana.

While some senators argue the government’s insistence on legalizing home cultivation paves the way for a constitutional fight with the provinces, others say they must consider whether the issue is worth a possible impasse between the Senate and the Commons.

On Wednesday, Prime Minister Justin Trudeau said the government’s decision to allow a limited number of home-grown plants was based on expert recommendations, and accused the Conservatives of trying to delay the bill.

“It’s been months that Andrew Scheer, the Conservative leader, has been telling his Senate caucus … to play games to slow this down, to interfere with the will of the House … and it’s time that he stopped using his senators this way,” he said.

Scheer was quick to reject the accusation, pointing out that the Conservatives don’t control the Commons or the Senate. “If the prime minister is upset about the pace of legislation, he needs to talk to his own House leadership team and his Senate leadership team,” Scheer told reporters.

Last month, a Senate committee made a unanimous recommendation that the cannabis legalization bill, C-45, should be amended to affirm provinces’ right to ban home cultivation of marijuana. Quebec, Manitoba and Nunavut all plan to prohibit home-grown cannabis, though the federal law allows home cultivation of up to four plants.

The amendment was one of nearly four dozen changes the Senate made to the bill, which was sent back to the Commons last week.

On Wednesday morning, Health Minister Ginette Petitpas Taylor said the government would not accept the change.

“Canadians are allowed to make beer at home, or wine, and some Canadians grow tobacco,” she said. “It’s already possible for Canadians to grow cannabis for medical purposes, and we absolutely believe that the legislation should be consistent when it comes to recreational cannabis.”

She said provinces have the right to restrict the number of home-grown cannabis plants to fewer than four.

Senators were quick to register their disappointment, with Conservative Sen. Claude Carignan accusing the government of “using the cannabis file to open a big legal fight and constitutional fight with the provinces.”

“If (the provinces) conclude that is it better, easier to enforce prohibition on home cultivation, I think you should respect that choice,” said independent Sen. André Pratte.

But it’s unclear how hard the Senate is willing to push back. Once the House of Commons votes on the plan, senators could vote to accept the government’s decision, or could insist on their amendments and send the bill back to the House once more.

Sen. Yuen Pau Woo, leader of the independent senators’ group, said he wants to hear a more detailed explanation for why the amendments were rejected.

“It’s too early to talk about political showdowns and we’re not in the business of political showdowns,” he told reporters. “We are disappointed, but this is not a personal disappointment.”

He said those senators who support Bill C-45 will have to weigh the benefits of legalization against the importance of the amendments.

Pratte said he has yet to decide how he will respond. He said he’s considering whether there’s a chance the government might change its mind on home-grown marijuana, and if not, whether it’s worth creating an impasse with the House of Commons.

In March, Justice Minister Jody Wilson-Raybould told a Senate committee that the government doesn’t intend to challenge provincial laws banning home cultivation, but said the government would take a position if an individual launched a legal challenge. “But in any conflict that is found by a court, the federal law would take (precedence) over the provincial law,” she said.

Legal experts have said provincial laws banning home-grown cannabis will very likely face challenges. “I would imagine it would happen quite quickly, yes indeed,” said McGill law professor Daniel Weinstock. “I can’t imagine that … the sort of ‘Let’s agree to disagree’ will last very long.”

Sen. Larry Smith, the Conservative leader in the Senate, said he believes there are “very strong feelings” among all senators that some of the amendments “should be reconsidered,” but said he doesn’t know what the ultimate response from the Senate will be.

“If a motor that you were working on had a defect, would you let that motor go out and be sold to the public in a car that could create a serious accident?” he said. “Chances are you wouldn’t because, if you did, you’d lose your job.”

Aside from home-grown cannabis, the government has also rejected a Senate amendment banning cannabis branding on promotional “swag” and another that would have created a public registry of investors in cannabis companies.