Despite constitutional concerns, northern Ontario city seeks to limit homegrown cannabis

| David Brown

A small city in northern Ontario is looking to establish bylaws to control where people can grow cannabis, despite some concerns that such a bylaw could be unconstitutional.

Elliot Lake, a small community of about 11,000, located about two hours west of Sudbury and about six hours north of Toronto, has been working on the bylaw for much of the past year, passing it on November 14. 

The bylaw could effectively ban cannabis in smaller yards by requiring cannabis to be at least 10 metres from neighbouring properties and from any properties near areas where minors congregate. 

Although the bylaw has now passed, the municipality will be sending it to the Attorney General of Ontario for review and approval. 

The bylaw sets three rules for outdoor cannabis growing in the community: all cannabis plants will be required to be ten metres from any neighbouring properties, must be kept out of sight and reach of children or anywhere children may congregate, and cannot be grown on properties that have any point in common with schools, parks, playgrounds, daycare facilities or other public places frequented mainly by persons under 18 years of age.

The fine for any infraction of the bylaw is $150 plus additional costs. The city says they are putting the bylaws in place to protect children in response to complaints and concerns from the community. 

The city’s solicitor advised that such a bylaw—possibly the first of its kind in Canada—could potentially violate federal law, and instead proposed a public information campaign

In a letter to the city, the solicitor noted that the ability to impose restrictions on home cannabis production is under provincial jurisdiction, not municipal, and that there was a current Supreme Court appeal in Quebec that could impact these jurisdictional issues.      

“At this time, it is not possible to provide a definitive opinion regarding whether the By-law is constitutionally valid,” wrote Laura Dean, a municipal and land use planning lawyer, in her advice to Eliot Lake on their bylaw. 

“However, the Supreme Court of Canada (SCC) recently heard an appeal from the Quebec Court of Appeal, which is likely to shed light on this issue and assist provinces (and by extension, municipalities) to understand the scope of their authority, if any, to impose restrictions on the personal cultivation of recreational cannabis.

“The City is advised not to adopt the by-law until it has had the benefit of reviewing the SCC decision which is expected to be issued within the next six months,” the letter continues. “If the SCC rules that the province (and by extension municipalities) may not curtail the ability of individuals to possess and cultivate up to four cannabis plants (as permitted by the federal Cannabis Act) then it will be clear that the by-law is unconstitutional and should not be enacted. If the SCC rules that the province may impose more stringent regulations than the federal Cannabis Act provides, then the City can be more confident in the constitutional validity of the by-law.”

Many municipalities have sought more control over cannabis production, namely medical cannabis laws. Elliot Lake’s efforts to regulate non-medical home-grown cannabis appear to be a first in Canada. 

The bylaw itself went through some extensive revisions before passing. It initially proposed only a two-foot setback from the neighbouring property liner, along with a potential height restriction and a requirement to have plants in a secured enclosure at least 5 feet high, before hearing from community representatives, police, and advisors. 

Matt Maurer, the co-chair of the Cannabis Law Group and a litigator with Torkin Manes LLP, says he doesn’t see any potential legal challenges when it comes to Elliot Lake establishing land-use bylaws. However, if the bylaw effectively prevents someone from being able to grow cannabis entirely, he notes there would be legal challenges similar to the concerns raised by Dean.

“By-laws pertaining to how land can be used (including cultivating cannabis) are generally within the purview of a municipality, notes Maurer. “There is an argument, though, that if the rules effectively prohibit people from cultivating at home (for example if their property is not large enough), then it is contradictory to the federal and provincial rule which allows home cultivation.”

He also says the part of the bylaw that says cannabis must be kept out of sight and reach of anywhere children may congregate could also outstep a municipality’s jurisdiction. 

“The federal government has allowed cultivation within a dwelling house and explicitly gave the provinces and territories the right to modify that right. Neither the federal nor the provincial government has delegated to municipalities the right to impose further rules on how people must treat the plant within the property when those rules appear to have no relation to land use itself. It would be an interesting court case to follow if the by-law was challenged on constitutional grounds and could potentially be struck down.”

Federal cannabis regulations allow Canadians to grow up to four cannabis plants per home; they delegate further management of those activities to the province. Some provinces have imposed other limits on personal cannabis production, such as requiring that it not be visible to the public, and Manitoba and Quebec have both banned growing cannabis at home entirely. Both provincial laws are facing court challenges. 

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