Tobacco Wars, Round 2

The Supreme Court is going to hear arguments today about whether the federal government’s Tobacco Act, SC 1997, c 13, passed in 1997 in response to the SCC’s 1995 decision in RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 [RJR-MacDonald], passes constitutional muster.

Recall that in RJR-Macdonald, the SCC struck down certain provisions of the Tobacco Products Control Act as contravening the tobacco companies’ freedom of expression. There were seven separate dispositions:

• Justice La Forest (for Justices L’Heureux-Dubé and Gonthier) held that the provisions were inconsistent with s. 2(b) of the Charter, but were saved by s. 1.
• Justice McLachlin (as she was then) held that the provisions were an unjustified infringement on freedom of expression.
• Justice Iacobucci generally accepted Justice McLachlin’s reasoning on s. 2(b), but added his own reasons on the s. 1 analysis, and also held that the declaration of invalidity should be suspended for one year.
• Justice Major held that the provisions were an invalid use of the criminal law power but he also agreed with Justice McLachlin’s reasoning on s. 2(b) and s. 1.
• Justice Sopinka agreed with Justice Major that the legislation was not valid under the criminal law power and otherwise concurred in the reasons of Justice McLachlin.
• Justice Cory agreed with the judgment of Justice La Forest but agreed with Justice Iacobucci’s proposal of a suspension of validity if the legislation were to be struck down.
• Chief Justice Lamer agreed with Justice Iacobucci’s reasons but with Justice McLachlin as to the disposition.

Needless to say, with this level of confusion, a set of deep-pocketed complainants and shifting social values around smoking, a rematch before the SCC was inevitable. Twelve years later, here we are.

As in the original tobacco case, it is the Quebec courts who have taken centre stage. The trial judge dismissed JTI-MacDonald’s claims (see JTI MacDonald Corporation v Canada (Attorney General) (2002), 102 CRR (2d) 189). On appeal, the manufacturers argued that “the trial judge failed to undertake a detailed study of the impugned provisions and that consequently, he provided insufficient reasons in dismissing their claims.” For good measure, they added that “neg00ative and irrelevant remarks about the manufacturers do not constitute legally-grounded reasons.”

After summarizing RJR-Macdonald and the provisions currently in place, Justice Beauregard of the Court of Appeal (see 2005 QCCA 726) sets into the current case with a comment indicating his view of the appeal: “It is an understatement to say that smoking is bad for you. Everyone knows it-the appellants better than anyone else.” He follows that up with “Unlike alcohol, which is not harmful when consumed in moderation, tobacco smoke is poison… Such being the case, some find it difficult to conceive how manufacturers can claim that they have the right to advertise their products, beyond providing information to smokers about the nature and content of their purchases, unless it is to tell smokers or potential smokers that their poison is not as harmful as a competitor’s.”

It didn’t look good for the manufacturers at that point, and sure enough, the Court of Appeal left most of the legislation intact. However, they did go on to tweak a few provisions of the legislation:

• In subsection 18(2)(a), the words “if no consideration is given directly or indirectly for that use or depiction in the work, production or performance” were declared of no force or effect, but only insofar as those words refer to scientific works. This change was made to protect the ability of manufacturers to sponsor scientific studies to demonstrate advantages of their brand over others (coming directly from Justice McLachlin’s insistence in RJR-MacDonald that advertising for brand differentiation be permitted).
• In section 20, the words, “or that are likely to create an erroneous impression” are struck out. Since the same provision already prohibited promotion that is “false, misleading or deceptive” this phrase was held to be vague and overly broad.
• The words “or the name of a tobacco manufacturer” in sections 24 and 25 of the Act were struck out, except if the name contains or refers either directly or indirectly to a product brand. Justice Brossard notes that “I know of no other legislative provision that prevents even organized criminal groups such as certain biker gangs from using their corporate name or logo.”

In the Quebec Court of Appeal decision there was also a great deal of division, with each judge writing their own opinion. It’s clear that this is going to be a contentious case at the SCC as well. I think the only safe prediction is that we’re unlikely to see the SCC issue seven different dispositions in this case.