On October 17, 2018, Canada became the first G8 country to legalize the recreational use, the sale and the cultivation of cannabis on its territory1. Since then, the Provinces have inherited some of the legislative powers relating to cannabis, namely those dealing with the conduct of its sale, consumption or even its production.
Until quite recently, Quebec stood out of the other provinces, except for Manitoba, with regards to enacted regulation concerning the possession and cultivation of cannabis plants. While the federal Act allows the possession and cultivation for personal purposes of up to four (4) plants per dwelling, Quebec prohibits and sanctions those practices by imposing a monetary penalty to the recalcitrant persons2, since those behaviours are considered as penal offences. Incidentally, the production for personal purposes of more than four (4) plants per dwelling is considered by the federal government as being a criminal activity, unless it is otherwise authorized under the Act3.
On October 25, 2018, a first Quebec citizen filed an application for declaratory judgment to challenge before a Court of justice the Quebec Act prohibiting dwelling cultivation4. By means of his application, the applicant mainly seeks a determination by the Court on the enforcement difficulty of the provincial Act which prohibits in its sections 5 and 10 what the federal Act specifically authorises, being the possession and cultivation of up to four (4) plants of cannabis per dwelling.
On September 3, 2019, the honourable Manon Lavoie, judge of the Superior Court, settled the debate5 and determined that the sections at issue were constitutionally invalid. Moreover, the judge declined to temporarily suspend the declaration of invalidity of those provisions which would have provided the government of Quebec with an opportunity to correct the situation, because she didn’t feel the presence of any public danger that would jeopardize the rule of law nor any legal vacuum because of the existence of the applicable sections of the federal Act6. In fact, Justice Lavoie pointed out that from now on the federal Act provisions were the ones governing the possession and cultivation of cannabis plants for personal purposes. It remains to be seen whether that decision will soon be appealed and if the Procureure générale du Québec will attempt to obtain a stay of execution of the Superior Court judgment until the debate is reopened before the Court of Appeal.
Even though it was already possible for several years in the province of Quebec to cultivate cannabis plants in one’s dwelling or in the dwelling of a person designated by a patient who has (1) a consumption of cannabis prescription for medical purposes and (2) an authorization of cultivation for personal purposes of Health Canada, yet the insurers are presently facing a new reality, now that the aforementioned Court decision has been pronounced. Indeed, they will need to question themselves as to whether they are at ease to insure the risks associated with the possession and cultivation of four (4) cannabis plants for personal purposes in connection with their assessment of the effective risks present with this type of cultivation and with the determination of consequential premiums in the absence of trustworthy specific or statistical data in that field.
It is in the best interest of the insurers to ask right now specific questions, both at the time of underwriting and renewal of the insurance policy, as to the insured’s intent of cultivating cannabis plants, the type of installation he plans to use, etc. Once again, insurers will have to ask themselves whether it is appropriate to insert specific exclusion provisions in their policies and, who knows, even take the appropriate steps to limit the offered covering, namely by means of warranty, after considering the type of installation used for the cultivation.
1 Cannabis Act, S.C. 2018, c. 16.
2 Section 10 of the Cannabis Regulation Act.
3 Section 12 of the Cannabis Act.
4 Janick Murray Hall v. Procureure générale du Québec, Court file numbered 200-17-028561-181.
5 Janick Murray Hall v. Procureure générale du Québec, Quebec S.C. (Admin. Ch.), n°200-17-028561-181, September 3, 2019, Justice Lavoie.
6 Cannabis Act, S.C. 2018, c. 16, sect. 8 (1) e) and 12 (4) b).