File No. CI 20-01THE QUEEN'S BENCH
Winnipeg Centre
BETWEEN:
JESSE CONNER LAVOIE,
Applicant,
- and THE GOVERNMENT OF MANITOBA,
Respondent.

APPLICATION UNDER: The Constitutional Questions Act, C.C.S.M. c. C180
The Liquor, Gaming and Cannabis Control Act, C.C.S.M. c. L153
Cannabis Act, S.C. 2018, c. 16
Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C.
1985 App. II, No. 5
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c. 11
The Court of Queen's Bench Rules, Man. Reg. 553/88

NOTICE OF APPLICATION
Civil Uncontested List
HEARING DATE: Monday, September 28, 2020 at 10:00 a.m.

MLT AIKINS LLP
30th Floor - 360 Main Street
Winnipeg, MB R3C 4G1
ANDREW W. BOUMFORD / JENNIFER A. SOKAL
Lawyers for the Applicant
Telephone No.: 204-957-4892 / 4870
Fax No.: 204-957-4295 / 0840
Email: aboumford@mltaikins.com / jsokal@mltaikins.com
File No.: 0146741.00001
Box 3

FILE ID AL"r; 2

2020

 THE QUEEN'S BENCH
Winnipeg Centre
BETWEEN:
JESSE CONNER LAVOIE,
Applicant,
- and THE GOVERNMENT OF MANITOBA,
Respondent.
APPLICATION UNDER: The Constitutional Questions Act, C.C.S.M. c. C180
The Liquor, Gaming and Cannabis Control Act, C.C.S.M. c. L153
Cannabis Act, S.C. 2018, c. 16
Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C.
1985 App. II, No. 5
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c. 11
The Court of Queen's Bench Rules, Man. Reg. 553/88

NOTICE OF APPLICATION
TO THE RESPONDENT:
A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicant. The claim made by
the Applicant appears on the following pages.
THIS APPLICATION will come on for a hearing before a Judge, Monday, September 28, 2020 at
the Law Courts Complex, 408 York Avenue, Winnipeg, Manitoba.
IF YOU WISH TO OPPOSE THIS APPLICATION, you or a Manitoba lawyer acting for you
must appear at the hearing.
IF YOU WISH TO PRESENT AFFIDAVIT' OR OTHER DOCUMENTARY EVIDENCE TO
THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE
APPLICATION, you or your lawyer must serve a copy of the evidence on the Applicant's lawyer
or, where the Applicant does not have a lawyer, serve it on the Applicant, and file it, with proof of
service, in the court office where the application is to be heard as soon as possible, but not later
than 2:00 p.m. on the day before the hearing.

 IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR
ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
B. ROIRNSON
DEPUTY RECITSTPAR
COURT
OF QUEERS :R772\101
Issued by
August 26, 2020

DeputMafroFiA

TO:

The Government of Manitoba
Attention: Dave Wright, Deputy Attorney-General
110 Legislative Building
450 Broadway
Winnipeg MB R3C OV8

AND TO:

The Attorney-General of Manitoba
Attention: Dave Wright, Deputy Attorney-General
110 Legislative Building
450 Broadway
Winnipeg MB R3C OV8

AND TO:

The Attorney General of Canada
Office of the Deputy Attorney General of Canada
Prairie Regional Office — Winnipeg
Department of Justice Canada
Suite 301, 310 Broadway
Winnipeg, Manitoba R3C 0S6

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 APPLICATION

1.

The Applicant, Jesse Conner Lavoie, makes Application for:

a)

An Order pursuant to s. 52(1) of the Constitution Act, 1982 severing and striking
down s. 101.15 of The Liquor, Gaming and Cannabis Control Act, and more
particularly declaring that:
i. section 101.15 of The Liquor, Gaming and Cannabis Control Act is
inconsistent with the Constitution of Canada, ultra vires, invalid and of no
force or effect; and
ii. the Respondent lacks the jurisdiction and constitutional authority to enact s.
101.15 of The Liquor, Gaming and Cannabis Control Act;

b)

In the alternative, an Order pursuant to s. 52(1) of the Constitution Act, 1982
excluding the application of s. 101.15 of The Liquor, Gaming and Cannabis Control
Act, and more particularly declaring that:
i. the application of s. 101.15 of The Liquor, Gaming and Cannabis Control
Act is inconsistent with the Constitution of Canada and of no force or effect;
and
ii. the application of s. 101.15 of The Liquor, Gaming and Cannabis Control
Act is outside the jurisdiction and constitutional authority of the
Respondent;

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 c)

In the further alternative, an Order pursuant to s. 52(1) of the Constitution Act, 1982
rendering s. 101.15 of The Liquor, Gaming and Cannabis Control Act inoperative,
and more particularly declaring that:
i. section 101.15 of The Liquor, Gaming and Cannabis Control Act and the
Cannabis Act are inconsistent with one another;
ii. section 101.15 of The Liquor, Gaming and Cannabis Control Act frustrates
the purpose of the Cannabis Act; and
iii. section 101.15 of The Liquor, Gaming and Cannabis Control Act is of no
force or effect;

d)

Costs; and

e)

Such further and other relief as counsel may advise and this Honourable Court may
deem just.

2.

The grounds for the Application are:
a)

The Applicant, Jesse Conner Lavoie, is a resident of the Province of Manitoba;

b)

The Applicant is materially affected by s. 101.15 of The Liquor, Gaming and
Cannabis Control Act and is genuinely interested in the matter and the outcome of
this Application;

c)

This Application is a reasonably effective manner for the matter to be adjudicated
in accordance with the principle of proportionality and access to justice;

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 d)

The Cannabis Act was enacted by the Parliament of Canada and came into effect on
October 17, 2018, which created a legal framework for controlling the production,
distribution, sale and possession of cannabis across Canada;

e)

The Cannabis Act allows, inter alia, that persons who are 18 years of age or older
may cultivate, propagate and harvest up to four cannabis plants in his or her
dwelling-house;

f)

On June 4, 2018, the Respondent, the Government of Manitoba, amended The
Liquor and Gaming Control Act to include a complete prohibition of residential
cultivation of cannabis, as s. 101.15 of The Liquor, Gaming and Cannabis Control
Act (the "Prohibition");
Manitoba remains the only province or territory in Canada with a complete ban on
residential cultivation of cannabis;

h)

Every province or territory that allowed a form of residential cultivation of cannabis
has continued to do so since the Cannabis Act came into effect;

i)

Quebec had enacted a legislative ban identical in effect to the Prohibition, however,
on September 3, 2019, the Quebec Superior Court ruled that the legislative han was
unconstitutional, ultra vices Quebec's legislative authority and invalid;

j)

A person who contravenes The Liquor, Gaming and Cannabis Control Act is guilty
of an offence and liable on conviction to a fine of not more than $100,000,
imprisonment for up to one year, or both;

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 k)

The Preset Fines and Offence Descriptions Regulation, Man. Reg. 96/2017, enacted
under The Provincial Offences Act, C.C.S.M. c. P160, establishes, inter alia, a
schedule of preset fines for offences, including a preset fine for an offence by
contravention of the Prohibition;

1)

The scheduled categories in The Preset Fines and Offence Descriptions Regulation
are alphabetical from "A" to "J", "J" being the category with the greatest total fine
amount of $2,542, which is just less than double the total fine amount of the below
category "I", $1,296;

m)

An offence by contravention of the Prohibition is categorized as "J", the highest fine
under The Preset Fines and Offence Descriptions Regulation, along with serious
offences such as supplying liquor to a minor (see The Liquor, Gaming and Cannabis
Control Act, s. 62(1));

n)

In addition to the preset fine, The Liquor, Gaming and Cannabis Control Act
provides that "any thing" that is evidence of a contravention of the Prohibition can
be seized, and that such seized items can be forfeited to the Crown and disposed of
(see ss. 125 and 150);

o)

Furthermore, The Criminal Property Forfeiture Act, C.C.S.M. c. 0306 provides that
property which is an instrument or proceeds of a contravention of the Prohibition
may be forfeited to the Respondent;

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 p)

The pith and substance of the Prohibition is to restrict access to cannabis in Manitoba
and to establish an absolute criminal ban on residential cultivation of cannabis in
Manitoba;

q)

The purpose of the Prohibition is to establish an absolute ban of a practice on the
bases of moral values and social acceptability, and to replace, stiffen and strengthen
the criminal law;

r)

The Prohibition is a law in relation to criminal law and is therefore ultra vires;

s)

Section 91(27) of the Constitution Act, 1867 confers on the Parliament of Canada
the exclusive authority and power to make laws in relation to criminal law;

t)

Provincial legislatures cannot interfere with or encroach upon criminal matters by
purporting to replace, stiffen or strengthen the criminal law;

u)

The Respondent's enactment of the Prohibition was not within the distributed
powers and jurisdiction of provincial legislatures pursuant to s. 92 of the
Constitution Act, 1867;

v)

Pursuant to s. 52(1) of the Constitution Act, 1982, the Constitution of Canada is the
supreme law of Canada, and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect;

w)

The Prohibition is ultra vires and inconsistent with ss. 91 and 92 of the Constitution
Act, 1867, the distribution of legislative powers of the Constitution of Canada and is
therefore invalid and of no force or effect;

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 x)

The Prohibition is not inextricably bound to the other provisions of The Liquor,
Gaming and Cannabis Control Act, and that legislation may survive independently
of the Prohibition, such that the Prohibition may be severed and struck from The
Liquor Gaming and Cannabis Control Act;

y)

In the alternative, the application of the Prohibition affects and impairs the core of
the federal power of criminal law, and the application of the Prohibition ought to be
excluded or its interpretation read down;

z)

In the further alternative, the Prohibition is inconsistent with and frustrates the
purpose of the Cannabis Act, and the Prohibition ought to be rendered inoperative
and of no force or effect;

aa)

The Applicant pleads and relies upon:
i. The Constitutional Questions Act, C.C.S.M. c. C180;
ii. The Liquor, Gaming and Cannabis Control Act, C.C.S.M. c. L153, s.
101.15;
iii. the Cannabis Act, S.C. 2018, c. 16, Part 1;
iv. the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, ss. 91 and 92, reprinted
in R.S.C. 1985 App. II, No. 5;
v. the Constitution Act, 1982, s. 51, being Schedule B to the Canada Act 1982
(UK), 1982, c. 11; and

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 vi. The Court of Queen's Bench Rules, Man. Reg. 553/88, Rules 1.04(1),
3.02(1), 14.05 and 38;

bb)

Such further and other grounds as counsel may advise and this Honourable Court
may permit.

3.

The following documentary evidence will be used at the hearing of the Application:

a)

The Affidavit of Jesse Conner Lavoie, to be sworn and filed; and

b)

Such further and other material as counsel may advise and this Honourable Court
may permit.

August 26, 2020

ANDREW W. BOUMFORD / JENNIFER A. SOKAL
MLT AIKINS LLP
30th Floor, 360 Main Street
Winnipeg, MB R3C 4G1
Lawyers for the Applicant

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