Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 SCR 188

                                                 SUPREME COURT OF CANADA

Between:

Government of Saskatchewan

Appellant

v.

Rothmans, Benson & Hedges Inc.

Respondent

‑ and ‑

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of Nova Scotia,

Attorney General of Manitoba, Attorney General of British

Columbia, Attorney General of Prince Edward Island,

Canadian Cancer Society, Canadian Lung Association,

Canadian Medical Association, Heart and Stroke Foundation

of Canada, and Western Convenience Stores Association

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Appeal heard and judgment rendered:  January 19, 2005

Reasons delivered:  March 18, 2005

______________________________

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13

Government of Saskatchewan                                                                Appellant

v.

Rothmans, Benson & Hedges Inc.                                                    Respondent

and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of Nova Scotia,

Attorney General of Manitoba, Attorney General of British

Columbia, Attorney General of Prince Edward Island,

Canadian Cancer Society, Canadian Lung Association,

Canadian Medical Association, Heart and Stroke Foundation

of Canada, and Western Convenience Stores Association          Interveners

Indexed as:  Rothmans, Benson & Hedges Inc. v. Saskatchewan

Neutral citation:  2005 SCC 13.

File No.:  29973.

Hearing and judgment: January 19, 2005.

Reasons delivered: March 18, 2005.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for saskatchewan

Constitutional law — Federal paramountcy — Retail display of tobacco products — Federal tobacco legislation allowing retailers to display tobacco and tobacco‑related products, and signs indicating availability and price of tobacco products — Provincial tobacco control legislation banning all advertising, display and promotion of tobacco or tobacco‑related products in any premises in which persons under 18 years of age are permitted — Whether provincial legislation inoperative pursuant to doctrine of federal legislative paramountcy — Tobacco Act, S.C. 1997, c. 13, s. 30  — The Tobacco Control Act, S.S. 2001, c. T‑14.1, s. 6.

The respondent company sought a declaration that s. 6 of the Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine, inoperative in light of s. 30 of the federal Tobacco Act .  Section 30  allows retailers to display tobacco and tobacco product‑related brand elements and post signs indicating the availability and price of tobacco products, while s. 6 bans all advertising, display and promotion of tobacco or tobacco‑related products in any premises in which persons under 18 years of age are permitted.  The Court of Queen’s Bench dismissed the company’s application.  The Court of Appeal set aside that decision and declared s. 6 inoperative on the basis of a practical inconsistency between the two provisions.

Held:  The appeal should be allowed.  The provincial legislation is not inoperative by virtue of the paramountcy doctrine.

There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30  of the Tobacco Act .  First, a retailer can easily comply with both provisions in one of two ways: by admitting no one under 18 years of age on to the premises, or by not displaying tobacco or tobacco‑related products.  The provincial legislation simply prohibits what Parliament has opted not to prohibit in its own legislation and regulations.  Second, s. 6 does not frustrate the legislative purpose underlying s. 30 .  Both the general purpose of the Tobacco Act  (to address a national public health problem) and the specific purpose of s. 30  (to circumscribe the Tobacco Act ’s general prohibition on promotion of tobacco products set out in s. 19 ) remain fulfilled.  In demarcating through s. 30  the scope of the federal legislation’s general prohibition on the promotion of tobacco products, Parliament did not grant  retailers a positive entitlement to display such products. [18] [22-27]

Cases Cited

Applied: RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; referred to:  Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67; O’Grady v. Sparling, [1960] S.C.R. 804; Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 2 (b).

Constitution Act, 1867, s. 91 .

Queen’s Bench Rules (Saskatchewan), Rule 188.

Tobacco Act, S.C. 1997, c. 13, ss. 4 , 18 , 19 , 22(2) , 26(1) , 28(1) , 30 .

Tobacco Control Act, S.S. 2001, c. T‑14.1, ss. 6, 7.

Tobacco Products Control Act, S.C. 1988, c. 20.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Tallis, Cameron and Sherstobitoff JJ.A.) (2003), 232 D.L.R. (4th) 495, 238 Sask. R. 250, 305 W.A.C. 250, [2004] 3 W.W.R. 589, [2003] S.J. No. 606 (QL), 2003 SKCA 93, reversing a decision of Barclay J. (2002), 224 Sask. R. 208, [2002] 10 W.W.R. 733, [2002] S.J. No. 541 (QL), 2002 SKQB 382.  Appeal allowed.

Thomson Irvine and Richard Hischebett, for the appellant.

Steven Sofer, Neil G. Gabrielson, Q.C., Michelle Ouellette and Marshall Reinhart, for the respondent.

S. David Frankel, Q.C., and David Schermbrucker, for the intervener the Attorney General of Canada.

Robin K. Basu, Mark Crow and Edward Burrow, for the intervener the Attorney General of Ontario.

Brigitte Bussières and Hugo Jean, for the intervener the Attorney General of Quebec.

Edward A. Gores, for the intervener the Attorney General of Nova Scotia.

Cynthia Devine, for the intervener the Attorney General of Manitoba.

R. Richard M. Butler, for the intervener the Attorney General of British Columbia.

Written submissions only by Ruth M. DeMone, for the intervener the Attorney General of Prince Edward Island.

Written submissions only by Julie Desrosiers and Robert Cunningham, for the interveners the Canadian Cancer Society, the Canadian Lung Association, the Canadian Medical Association and the Heart and Stroke Foundation of Canada.

Written submissions only by Ron A. Skolrood and Clifford G. Proudfoot, for the intervener the Western Convenience Stores Association.

The judgment of the Court was delivered by

1                                Major J. — The question on this appeal is whether Saskatchewan legislation, and in particular s. 6 of The Tobacco Control Act, S.S. 2001, c. T-14.1, is sufficiently inconsistent with s. 30 of the federal Tobacco Act, S.C. 1997, c. 13 , so as to be rendered inoperative pursuant to the doctrine of federal legislative paramountcy.  At the end of the hearing, the Court concluded that that question should be answered in the negative and allowed the appeal, with reasons to follow. 

I.  Facts

2                                In 1997, Parliament enacted the Tobacco Act .  Section 4 of the statute speaks to its purpose as follows:

4.  The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular,

(a) to protect the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;

(b) to protect young persons and others from inducements to use tobacco products and the consequent dependence on them;

(c) to protect the health of young persons by restricting access to tobacco products; and

(d) to enhance public awareness of the health hazards of using tobacco products.

3                                Section 19  of the Tobacco Act  prohibits the promotion of tobacco products and tobacco product‑related brand elements, except as authorized elsewhere in the Tobacco Act  or its regulations.  Section 18  of the Tobacco Act  defines “promotion” as:

. . . a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.

4                                The provisions that follow s. 19  both prohibit specific types of tobacco product promotion, and permit other types of promotion that s. 19  would otherwise prohibit.  Among those provisions, s. 30(1) provides that, “[s]ubject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product‑related brand element.”  Section 30(2) further provides that retailers may post signs indicating the availability and price of tobacco products.

5                                On March 11, 2002, The Tobacco Control Act came into force in Saskatchewan.  Section 6 of that Act bans all advertising, display and promotion of tobacco or tobacco‑related products in any premises in which persons under 18 years of age are permitted.

6                                The respondent sued the appellant in the Saskatchewan Court of Queen’s Bench, seeking two forms of relief:  a declaration that s. 6 of The Tobacco Control Act is inoperative in light of s. 30  of the Tobacco Act , and a declaration that ss. 6 and 7 of The Tobacco Control Act are of no force and effect in light of s. 2 (b) of the Canadian Charter of Rights and Freedoms .  The respondent applied pursuant to Rule 188 of The Queen’s Bench Rules of Saskatchewan for a summary determination by the court as to whether s. 6 of The Tobacco Control Act is inoperative in light of s. 30  of the Tobacco Act  by virtue of the doctrine of federal legislative paramountcy.

II.  Judicial History

A.  Saskatchewan Court of Queen’s Bench (2002), 224 Sask. R. 208, 2002 SKQB 382

7                                Barclay J. held that there was no conflict between s. 6 of The Tobacco Control Act and s. 30  of the Tobacco Act .  While s. 6 of The Tobacco Control Act prescribed a stricter standard concerning the promotion of tobacco products than did s. 30  of the Tobacco Act , there was no operational conflict.  A retailer could comply simultaneously with the restrictions imposed by both governments. 

8                                In the result, Barclay J. dismissed the respondent’s application with costs.

B.  Saskatchewan Court of Appeal (2003), 238 Sask. R. 250, 2003 SKCA 93

9                                Cameron J.A. (Tallis and Sherstobitoff JJ.A. concurring) agreed with the chambers judge that it was possible to comply with s. 6 of The Tobacco Control Act without defying s. 30  of the Tobacco Act .  However, he observed a practical inconsistency between the two provisions, in that the authorization afforded by s. 30  of the Tobacco Act  was negated by s. 6 of The Tobacco Control Act.

10                            On that basis, the court allowed the appeal, and declared s. 6 of The Tobacco Control Act inoperative as inconsistent with s. 30  of the Tobacco Act .

III.  Analysis

11                            The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency.  Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, is often cited for the proposition that there is an inconsistency for the purposes of the doctrine if it is impossible to comply simultaneously with both provincial and federal enactments.  Dickson J. (as he then was) wrote, at p. 191:

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other.

See also Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59, at p. 65; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961, at paras. 17 and 41-42; and 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40, at para. 35. 

12                            However, subsequent cases indicate that impossibility of dual compliance is not the sole mark of inconsistency.  Provincial legislation that displaces or frustrates Parliament’s legislative purpose is also inconsistent for the purposes of the doctrine.  In Bank of Montreal v. Hall, [1990] 1 S.C.R. 121, at p. 155, La Forest J. wrote:

A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and, hence, repugnant.  That conclusion, in my view, would simply beg the question.  The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose.

See also Spraytech, at para. 35, and Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, at paras. 69-70.

13                            This concern about frustration of Parliament’s legislative purpose may find its roots in McCutcheon, in which Dickson J. stated, at p. 190:

. . . [T]here is no true repugnancy in the case of merely duplicative provisions since it does not matter which statute is applied; the legislative purpose of Parliament will be fulfilled regardless of which statute is invoked by a remedy‑seeker; application of the provincial law does not displace the legislative purpose of Parliament.  [Emphasis added.]

14                            In my view, the overarching principle to be derived from McCutcheon and later cases is that a provincial enactment must not frustrate the purpose of a federal enactment, whether by making it impossible to comply with the latter or by some other means.  In this way, impossibility of dual compliance is sufficient but not the only test for inconsistency.

15                            It follows that in determining whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30  of the Tobacco Act  so as to be rendered inoperative through the paramountcy doctrine, two questions arise.  First, can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30  of the Tobacco Act ?  Second, does s. 6 of The Tobacco Control Act frustrate Parliament’s purpose in enacting s. 30  of the Tobacco Act ?

16                            Before answering those questions, it is necessary to examine the character of s. 30  of the Tobacco Act .

17                            Read in the context of the Tobacco Act  as a whole, it is clear that the purpose and effect of s. 30  is to define with greater precision the prohibition on the promotion of tobacco products contained in s. 19 .  Specifically, it serves to exclude from the wide net of s. 19  promotion by way of retail display.  In this way, it is like ss. 22(2) , 26(1)  and 28(1)  of the Tobacco Act , which also exclude from the s. 19  prohibition certain types of tobacco product promotion that it might otherwise capture.  This demarcation of the s. 19   prohibition represents a measured approach to protecting “young persons and others from inducements to use tobacco products”, one of the purposes of the Tobacco Act  set out in s. 4 . 

18                            However, in demarcating the scope of the s. 19  prohibition through s. 30 , Parliament did not grant, and could not have granted, retailers a positive entitlement to display tobacco products.  That is so for two reasons. 

19                            First, like the Tobacco Products Control Act, S.C. 1988, c. 20, before it, the Tobacco Act  is directed at a public health evil and contains prohibitions accompanied by penal sanctions.  Accordingly, and as the Saskatchewan courts correctly concluded in light of this Court’s decision in RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, it falls within the scope of Parliament’s criminal law power contained in s. 91(27)  of the Constitution Act, 1867 .  It might be noted that no argument was made regarding the possibility that the legislation was adopted under the “peace, order, and good government” clause of s. 91 , nor could any have been made, given the concessions on the basis of which this chambers motion proceeded.  As the criminal law power is essentially prohibitory in character, provisions enacted pursuant to it, such as s. 30  of the Tobacco Act , do not ordinarily create freestanding rights that limit the ability of the provinces to legislate in the area more strictly than Parliament.  This limited reach of s. 91(27)  is well understood:  see, for example, O’Grady v. Sparling, [1960] S.C.R. 804; Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5; and Spraytech.

20                            Second, it is difficult to imagine how granting retailers a freestanding right to display tobacco products would assist Parliament in providing “a legislative response to a national public health problem of substantial and pressing concern” (Tobacco Act, s. 4 ).  To put it slightly differently, an interpretation of s. 30  as granting retailers an entitlement to display tobacco products is unsupported by, and perhaps even contrary to, the stated purposes of the Tobacco Act .

21                            I do not accept the respondent’s argument that Parliament, in enacting s. 30 , intended to make the retail display of tobacco products subject only to its own regulations.  In my view, to impute to Parliament such an intention to “occup[y] the field” in the absence of very clear statutory language to that effect would be to stray from the path of judicial restraint in questions of paramountcy that this Court has taken since at least O’Grady (p. 820).

A.  Impossibility of Dual Compliance

22                            It is plain that dual compliance is possible in this case.  A retailer can easily comply with both s. 30  of the Tobacco Act  and s. 6 of The Tobacco Control Act in one of two ways:  by admitting no one under 18 years of age on to the premises or by not displaying tobacco or tobacco‑related products. 

23                            Similarly, a judge called upon to apply one of the statutes does not face any difficulty in doing so occasioned by the existence of the other.  The judge, like this Court, can proceed on the understanding that The Tobacco Control Act simply prohibits what Parliament has opted not to prohibit in its own legislation and regulations.

24                            For an impossibility of dual compliance to exist, s. 30  of the Tobacco Act  would have to require retailers to do what s. 6 of The Tobacco Control Act prohibits — i.e., to display tobacco or tobacco‑related products to young persons.

B.  Frustration of Legislative Purpose

25                            Section 6 of The Tobacco Control Act does not frustrate the legislative purpose underlying s. 30  of the Tobacco Act .  Both the general purpose of the Tobacco Act  (to address a national public health problem) and the specific purpose of s. 30  (to circumscribe the Tobacco Act ’s general prohibition on promotion of tobacco products set out in s. 19 ) remain fulfilled.  Indeed, s. 6 of The Tobacco Control Act appears to further at least two of the stated purposes of the Tobacco Act , namely, “to protect young persons and others from inducements to use tobacco products” (s. 4 (b)) and “to protect the health of young persons by restricting access to tobacco products” (s. 4 (c)).

26                            The conclusion that s. 6 of The Tobacco Control Act does not frustrate the purpose of s. 30  of the Tobacco Act  is consistent with the position of the Attorney General of Canada, who intervened in this appeal to submit that the Tobacco Act  and The Tobacco Control Act were enacted for the same health-related purposes and that there is no inconsistency between the two provisions at issue.  While the submissions of the federal government are obviously not determinative of the legal question of inconsistency, there is precedent from this Court for bearing in mind the other level of government’s position in resolving federalism issues:  see Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at paras. 72-73.

IV.  Conclusion

27                            There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30  of the Tobacco Act  that would render the former inoperative pursuant to the doctrine of federal legislative paramountcy.  The appeal is allowed with costs to the appellant throughout.

28                            The constitutional question is answered as follows:

Is s. 6 of The Tobacco Control Act, S.S. 2001, c. T-14.1, constitutionally inoperative under the doctrine of federal legislative paramountcy, having regard to s. 30  of the Tobacco Act, S.C. 1997, c. 13 ?

No.

Appeal allowed with costs.

Solicitor for the appellant:  Attorney General for Saskatchewan, Regina.

Solicitors for the respondent:  McKercher McKercher & Whitmore, Saskatoon.

Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  Attorney General of Quebec, Sainte‑Foy.

Solicitor for the intervener the Attorney General of Nova Scotia:  Attorney General of Nova Scotia, Halifax.

Solicitor for the intervener the Attorney General of Manitoba:  Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia:  Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Prince Edward Island:  Attorney General of Prince Edward Island, Charlottetown.

Solicitors for the interveners the Canadian Cancer Society, the Canadian Lung Association, the Canadian Medical Association and the Heart and Stroke Foundation of Canada:  Martineau Walker, Montreal.

Solicitors for the intervener the Western Convenience Stores Association:  Lawson Lundell, Vancouver.