SUPREME
COURT OF CANADA
Between:
Attorney General
of Canada
Appellant /
Respondent on cross‑appeal
and
JTI-Macdonald
Corp.
Respondent /
Appellant on cross‑appeal
And between:
Attorney General
of Canada
Appellant /
Respondent on cross‑appeal
and
Rothmans,
Benson & Hedges Inc.
Respondent /
Appellant on cross‑appeal
And between:
Attorney General
of Canada
Appellant /
Respondent on cross‑appeal
and
Imperial
Tobacco Canada Ltd.
Respondent /
Appellant on cross‑appeal
‑ and ‑
Attorney
General of Ontario, Attorney General of Quebec,
Attorney
General of New Brunswick, Attorney General of Manitoba,
Attorney
General of British Columbia, Attorney General for Saskatchewan
and Canadian Cancer Society
Interveners
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 142)
|
McLachlin C.J. (Bastarache,
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
|
______________________________
canada (attorney general) v. jti‑macdonald corp.
Attorney General of Canada Appellant/Respondent
on cross‑appeal
v.
JTI‑Macdonald Corp. Respondent/Appellant
on cross‑appeal
and
Attorney General of Canada Appellant/Respondent
on cross‑appeal
v.
Rothmans, Benson & Hedges Inc. Respondent/Appellant
on cross‑appeal
and
Attorney General of Canada Appellant/Respondent
on cross‑appeal
v.
Imperial Tobacco Canada Ltd. Respondent/Appellant
on cross‑appeal
and
Attorney General of Ontario, Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General for Saskatchewan and
Canadian Cancer Society Interveners
Indexed as: Canada (Attorney General) v. JTI‑Macdonald
Corp.
Neutral citation: 2007 SCC
30.
File No.: 30611.
2007: February 19; 2007: June 28.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Constitutional law – Charter of Rights – Freedom of
expression – Advertising and promotion of tobacco – Whether limits imposed on
tobacco manufacturers’ freedom of expression by provisions of Tobacco Act and Tobacco
Products Information Regulations justified – Canadian Charter of Rights and
Freedoms, ss. 1 , 2 (b) – Tobacco Act, S.C. 1997, c. 13, ss. 18 ,
19 , 20 , 22 , 24 , 25 – Tobacco Products Information Regulations, SOR/2000‑272.
In 1995, in RJR‑MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199, the Court struck down provisions
of the Tobacco Products Control Act that broadly prohibited all
advertising and promotion of tobacco products, subject to specific exceptions,
and required that unattributed warning labels be affixed on tobacco product
packaging. In response to the Court’s decision, Parliament enacted the Tobacco
Act and the Tobacco Products Information Regulations. The scheme of
the new legislation, in broad terms, involves permitting information and brand‑preference
advertising, while forbidding lifestyle advertising and promotion, advertising
appealing to young persons, and false or misleading advertising or promotion.
In addition, the size of mandatory and attributed health warnings on packaging
is increased from 33 percent to 50 percent of the principal display
surfaces. The appellant tobacco manufacturers challenged the new legislation,
alleging that some provisions limited their right to freedom of expression
under s. 2 (b) of the Canadian Charter of Rights and Freedoms
and that those limits were not justified under s. 1 of the Charter .
More specifically, they challenged (1) the provisions’ effect on funded
scientific publications, (2) the provisions dealing with false and erroneous
promotion, (3) the provisions relating to advertising appealing to young
people, (4) the ban on lifestyle advertising, (5) the ban on sponsorship
promotion and (6) the requirement regarding health warning labels. The trial
judge determined that the impugned provisions were constitutional and dismissed
the manufacturers’ actions. The Quebec Court of Appeal upheld most of the
scheme, but found parts of some of the provisions to be unconstitutional. The
Attorney General of Canada appealed the findings of unconstitutionality, and
the tobacco manufacturers cross‑appealed on some of the provisions held
to be constitutional.
Held: The
appeals should be allowed and the cross‑appeals dismissed.
Properly construed, ss. 18 and 19 of the Tobacco
Act permit the publication of legitimate scientific works sponsored by the
tobacco manufacturers and do not unjustifiably restrict the manufacturers’
right to freedom of expression. These sections, as applied to scientific
works, are ambiguous. Although the primary object of s. 18 is “product
placement” directed at consumers, s. 18(2) (a), read literally and
in combination with the definition of “promotion” in s. 18(1) and the
general prohibition in s. 19 , would effect a broad ban on funded scientific
works. Such a reading would fit neither the scheme of ss. 18 and 19 nor
Parliament’s goals. To bring the reference to “scientific work” in
s. 18(2) (a) into harmony with the purpose and wording of s. 18
as a whole, the word “promotion” in s. 18 should be read as meaning
commercial promotion directly or indirectly targeted at consumers. Read in
this way, ss. 18 and 19 do not prevent the publication of legitimate
scientific works funded by tobacco manufacturers. However, a manufacturer
would be prohibited from paying for a particular brand to be included in a
commercial scientific work directed at consumers, and this limit on free
expression would be saved under s. 1 of the Charter . [49‑57]
Section 20 of the Tobacco Act , which bans
“false, misleading or deceptive” promotion, as well as promotion “likely to
create an erroneous impression about the characteristics, health effects or
health hazard of the tobacco product or its emissions”, clearly infringes the
guarantee of freedom of expression. However, the ban, and more specifically
the ban on promotion “likely to create an erroneous impression”, are justified
under s. 1 . This phrase is directed at promotion that, while not
literally false, misleading or deceptive in the traditional legal sense,
conveys an erroneous impression about the effects of the tobacco product, in
the sense of leading consumers to infer things that are not true. It
represents an attempt to cover the grey area between demonstrable falsity and
invitation to false inference that tobacco manufacturers have successfully
exploited in the past. Parliament’s objective of combating the promotion of
tobacco products by half‑truths and by invitation to false inference
constitutes a pressing and substantial objective, and prohibiting such forms of
promotion is rationally connected to Parliament’s public health and consumer
protection purposes. The ban on promotion “likely to create an erroneous
impression” is not overbroad or vague, but rather falls within a range of reasonable
alternatives. Finally, the impugned phrase meets the requirement of
proportionality of effects. The objective is of great importance, nothing less
than a matter of life or death for millions of people who could be affected,
and the evidence shows that banning advertising by half‑truths may help
reduce smoking. The expression at stake — the right to invite consumers to
draw an erroneous inference as to the healthfulness of a product that, on the
evidence, will almost certainly harm them — is of low value. [58‑69]
Section 22(2) of the Tobacco Act permits
information and brand‑preference advertising in certain media and certain
locations, but s. 22(3) bans “advertising that could be construed on
reasonable grounds to be appealing to young persons”. This limit on free
expression imposed by s. 22(3), properly interpreted, is justified under
s. 1 of the Charter . Section 22(3) requires the prosecution
in a given case to prove that there are reasonable grounds to believe that the
advertisement of a tobacco product at issue could be appealing to young
persons, in the sense that it could be particularly attractive and of interest
to young persons, as distinguished from the general population. This
interpretation yields a common meaning for the French and English versions of
s. 22(3) and is consistent with Parliament’s stated purpose of preventing
young people in particular from taking up smoking and becoming addicted to
tobacco. This purpose is pressing and substantial, and a ban on advertising
appealing to young persons is rationally connected to it. Further,
s. 22(3), properly interpreted, satisfies the minimal impairment
requirement. The provision does not impose a total ban on advertising.
Information and brand‑preference advertising is permitted, provided that
it is not done in places that young persons are likely to frequent or in
publications not addressed to adults, and provided that it is not lifestyle
advertising or advertising that there are reasonable grounds to believe that it
could be appealing to young people as a group. Given the sophistication and
subtlety of tobacco advertising practices in the past, Parliament cannot be
said to have gone further than necessary in blocking advertising that might
influence young persons to start smoking. Lastly, s. 22(3) meets the
requirement of proportionality of effects. The prohibited speech is of low
value, and the beneficial effects of the ban for young persons and for society
at large may be significant. Moreover, the vulnerability of the young may
justify measures that privilege them over adults in matters of free
expression. [70‑95]
The ban on “lifestyle advertising” in s. 22(3),
properly interpreted, also constitutes a justified limit on free expression.
The first part of the definition of lifestyle advertising in s. 22(4),
which, combined with s. 22(3), removes advertising that associates a
product with a way of life from the broad ambit of s. 22(2) , is
unproblematic. As for the phrase “or evokes a positive or negative emotion
about or image of, a way of life”, it is aimed at precluding arguments that to
constitute lifestyle advertising, there must be a link, on the face of the
advertisement, between the tobacco product and a way of life. However, this
phrase should be interpreted in a way that leaves room for true information and
brand‑preference advertising, which s. 22(2) permits. Furthermore,
the words “such as one that includes glamour, recreation, excitement, vitality,
risk or daring” are to be read as illustrations of lifestyle advertising. As
with the other challenged provisions, the pressing and substantial nature of
Parliament’s objective is beyond challenge. The sophistication and subtlety of
lifestyle advertising are reflected in the means Parliament has chosen to deal
with it, and there is a rational connection between this provision and
Parliament’s objective. Minimal impairment is also established. True
information and brand‑preference advertising continues to be permitted
under s. 22(2) . Such advertising crosses the line when it associates a
product with a way of life or uses a lifestyle to evoke an emotion or image
that may, by design or effect, lead more people to become addicted or lead
people who are already addicted to increase their tobacco use. Lastly, the
proportionality of the effects is clear. The suppressed expression is of low
value compared with the significant benefits in lower rates of consumption and
addiction that the ban may yield. [96‑116]
Sponsorship promotion, which is subject to a general
ban under s. 24 of the Tobacco Act , is essentially lifestyle
advertising in disguise. For the same reasons as for the prohibition of
lifestyle advertising, this clear limit on expression is justified under
s. 1 . The specific prohibition on using corporate names in sponsorship
promotion and on sports or cultural facilities, which is set out in ss. 24
and 25 of the Act, is also justified. The evidence establishes that as
restrictions on tobacco advertising tightened, manufacturers increasingly
turned to sports and cultural sponsorship as a substitute form of lifestyle
promotion. Placing a tobacco manufacturer’s name on a facility is one form
such sponsorship takes, and the aim of curbing such promotion justifies
imposing limits on free expression. The rational connection element is made
out, because placing a corporate name on a list of sponsors or on a sports or
cultural facility may promote the use of tobacco in a number of ways. Even
where there is no overt connection between the corporate name and the brand
name of a tobacco product, the corporate name may serve to promote the sale of
the tobacco product. Given the nature of the problem, and in view of the
limited value of the expression in issue compared with the beneficial effects of
the ban, the proposed solution is proportional. [117‑129]
The requirement in the Tobacco Products Information
Regulations that the government’s health warnings occupy at least 50 percent
of the principal display surfaces of packages infringes s. 2 (b) of
the Charter , but the infringement is justified under s. 1 .
Parliament’s goal, notably to inform and remind potential purchasers of the
product of the health hazards it entails, is pressing and substantial. The
evidence as to the importance and effectiveness of such warnings establishes a
rational connection between Parliament’s requirement for warnings and its
objects of reducing the incidence of smoking and of the disease and death it
causes. Regarding minimal impairment, the requirement for warning labels,
including their size, falls within a range of reasonable alternatives. The
reasonableness of the government’s requirement is supported, notably, by the
fact that many countries require warnings at least as large as Canada’s.
Finally, the benefits flowing from larger warnings are clear, while the
detriments to the manufacturers’ expressive interest in creative packaging are
small. [130‑140]
Cases Cited
Applied: R.
v. Oakes, [1986] 1 S.C.R. 103; referred to:
RJR‑MacDonald Inc. v. Canada (Attorney‑General), [1995] 3
S.C.R. 199; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Irwin
Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v.
Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713; R. v. Sharpe, [2001] 1 S.C.R. 45,
2001 SCC 2; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Lucas,
[1998] 1 S.C.R. 439; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R.
69; Canadian Broadcasting Corp. v. New Brunswick (Attorney General),
[1996] 3 S.C.R. 480; R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606; Attorney General of Quebec v. Carrières Ste‑Thérèse
Ltée, [1985] 1 S.C.R. 831; Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211; Reference re ss. 193 and 195.1(1)(c) of
the Criminal Code (Man.), [1990] 1 S.C.R. 1123; RJR—MacDonald Inc. v.
Canada (Attorney‑General), [1994] 1 S.C.R. 311.
Statutes and Regulations Cited
Animal
Pedigree Act, R.S.C. 1985, c. 8 (4th Supp .),
s. 64 .
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (b), 7 .
Food and Drugs Act, R.S.C. 1985,
c. F‑27, s. 5(1) .
Radiation Emitting Devices Act, R.S.C.
1985, c. R‑1, s. 5(1) .
Tobacco Act, S.C. 1997, c. 13,
ss. 4 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 43 , 47 ,
49 , 50 .
Tobacco Products Control Act, S.C. 1988,
c. 20.
Tobacco Products Information Regulations,
SOR/2000‑272, ss. 2, 3, 4, 5.
Treaties and Other International Instruments
WHO Framework Convention on
Tobacco Control, 2302 U.N.T.S. 229,
ss. 11(1)(a), 13(4)(a).
Authors Cited
Barak,
Aharon. “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J.
369.
Canadian Oxford Dictionary, 2nd ed.
Edited by Katherine Barber. Don Mills, Ont.: Oxford University
Press, 2004, “appeal”.
Driedger, Elmer A. Construction of Statutes,
2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada,
vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992
(updated 2007, release 1).
Hogg, Peter W., Allison A. Bushell Thornton and
Wade K. Wright. “Charter Dialogue Revisited — Or ‘Much Ado About
Metaphors’” (2007), 45 Osgoode Hall L.J. 1.
APPEALS and CROSS‑APPEALS from judgments of the
Quebec Court of Appeal (Beauregard, Brossard and Rayle JJ.A.), [2005] Q.J.
No. 11174 (QL), 2005 QCCA 725, (sub nom. Imperial Tobacco Canada Ltée
v. Canada (Procureure générale)), and [2005] R.J.Q. 2018, 260 D.L.R. (4th)
224, [2005] Q.J. No. 10915 (QL), 2005 QCCA 726, (sub nom. JTI‑Macdonald
Corp. v. Canada (Attorney General)), and [2005] Q.J. No. 11175 (QL),
2005 QCCA 727, (sub nom. Rothmans, Benson & Hedges Inc. v. Canada
(Procureure générale)), reversing in part a decision of Denis J.,
[2003] R.J.Q. 181, 102 C.R.R. (2d) 189, [2002] Q.J. No. 5550 (QL).
Appeals allowed and cross‑appeals dismissed.
Claude Joyal, Bernard
Mandeville and Maurice Régnier, for the appellant/respondent on
cross‑appeal.
Douglas C. Mitchell, Georges R. Thibaudeau and Catherine McKenzie,
for the respondent/appellant on cross‑appeal JTI‑Macdonald Corp.
Steven I. Sofer
and Rachel Ravary, for the respondent/appellant on cross‑appeal
Rothmans, Benson & Hedges Inc.
Simon V. Potter, Gregory B.
Bordan and Sophie Perreault, for the respondent/appellant on cross‑appeal
Imperial Tobacco Canada Ltd.
Robin K. Basu and Mark
Crow, for the intervener the Attorney General of Ontario.
Dominique A. Jobin
and Caroline Renaud, for the intervener the Attorney General of Quebec.
Gaétan Migneault, for
the intervener the Attorney General of New Brunswick.
Cynthia Devine, for the
intervener the Attorney General of Manitoba.
Craig Jones and Jonathan
Penner, for the intervener the Attorney General of British Columbia.
Thomson Irvine, for the
intervener the Attorney General for Saskatchewan.
Julie Desrosiers and Robert
Cunningham, for the intervener the Canadian Cancer Society.
The judgment of the Court was delivered by
The Chief Justice —
I. Overview
1
These appeals concern the constitutionality of Canada’s laws on
tobacco advertising and promotion, under the Tobacco Act, S.C. 1997, c.
13 , and the Tobacco Products Information Regulations, SOR/2000-272
(“TPIR”). The main issue is whether the limits certain provisions
impose on freedom of expression are justified as reasonable under s. 1 of the Canadian
Charter of Rights and Freedoms .
2
The case pits tobacco manufacturers against the Attorney General
of Canada, who is supported by a number of provincial Attorneys General and the
Canadian Cancer Society. The tobacco manufacturers, at this stage of the
litigation, challenge six aspects of the legislative and regulatory scheme:
(1) its effect on funded scientific publications; (2) its provisions dealing
with false and erroneous promotion; (3) its provisions relating to advertising
appealing to young persons; (4) its ban on lifestyle advertising; (5) its ban
on sponsorship promotion; and (6) its regulatory requirement that health
warning labels occupy 50 percent of tobacco packaging.
3
The trial judge, Denis J., upheld the provisions as
constitutional ((2003), 102 C.R.R. (2d) 103). The Quebec Court of Appeal
upheld most of the scheme, but found parts of some of the provisions to be
unconstitutional ([2005] Q.J. No. 11174 (QL), 2005 QCCA 725, and 260 D.L.R.
(4th) 224, [2005] Q.J. No. 10915 (QL), 2005 QCCA 726, and [2005] Q.J. No. 11175
(QL), 2005 QCCA 727). The Attorney General of Canada appeals the findings of
unconstitutionality to this Court, and the tobacco manufacturers cross-appeal
on some of the provisions that the Court of Appeal held constitutional.
4
I conclude that properly interpreted, the legislative and
regulatory provisions at issue do not unjustifiably infringe s. 2 (b) of
the Charter and should be upheld, for the reasons that follow.
II. Background
5
Before analyzing the six disputed aspects of the legislative and
regulatory scheme, it is necessary to set the stage by discussing the
historical background of the legislation and its social and legal contexts.
6
In 1995, this Court struck down the advertising provisions of the
Tobacco Products Control Act (S.C. 1988, c. 20): RJR-MacDonald Inc.
v. Canada (Attorney General), [1995] 3 S.C.R. 199. This Act broadly
prohibited all advertising and promotion of tobacco products, subject to
specific exceptions, and required affixing unattributed warning labels on
tobacco product packaging. The majority of the Court in that case held that the
provisions limited free expression and that the government had failed to
justify the limitations under s. 1 of the Charter . In particular, the
government, by failing to show that less intrusive measures were not available,
had failed to establish that the limits met the requirement of minimal
impairment developed in R. v. Oakes, [1986] 1 S.C.R. 103 (McLachlin J., at paras. 163 and 165, and Iacobucci J., at para.
191). While the majority agreed that s. 1 justification on issues such as this
does not require scientifically precise proof, it found that the absence of
virtually any proof was fatal to the government’s case. The trial judge had
found that the requirements for justification were not met on the evidence.
The majority concluded that on the record before it, there was no basis to
interfere with the trial judge’s conclusion.
7
In response to the Court’s decision in RJR, Parliament
enacted the Tobacco Act and Regulations at issue on these
appeals. The scheme of the new legislation, in broad terms, involved
permitting information and brand-preference advertising, while forbidding
lifestyle advertising and promotion, advertising appealing to young persons,
and false or misleading advertising or promotion. In addition, the size of
mandatory and attributed health warnings on packaging was increased from 33
percent to 50 percent of the principal display surfaces. In general, the new
scheme was more restrained and nuanced than its predecessor. It represented a
genuine attempt by Parliament to craft controls on advertising and promotion
that would meet its objectives as well as the concerns expressed by the
majority of this Court in RJR.
8
The government’s response to the inevitable challenge to the new
scheme, when it came, also reflected the Court’s decision in RJR. The
government presented detailed and copious evidence in support of its contention
that where the new legislation posed limits on free expression, those limits
were demonstrably justified under s. 1 of the Charter .
9
Parliament was assisted in its efforts to craft and justify
appropriately tailored controls on tobacco advertising and promotion by
increased understanding of the means by which tobacco manufacturers seek to
advertise and promote their products and by new scientific insights into the
nature of tobacco addiction and its consequences. On the findings of the trial
judge in the present case, tobacco is now irrefutably accepted as highly
addictive and as imposing huge personal and social costs. We now know that
half of smokers will die of tobacco-related diseases and that the costs to the
public health system are enormous. We also know that tobacco addiction is one
of the hardest addictions to conquer and that many addicts try to quit time and
time again, only to relapse.
10
Moreover, the international context has changed since 1995.
Governments around the world are implementing anti-tobacco measures similar to
and, in some cases, more restrictive than Canada’s. The WHO Framework
Convention on Tobacco Control (2003), 2302 U.N.T.S. 229, which Canada
ratified in 2004, mandates a comprehensive ban on tobacco promotion, subject to
state constitutional requirements. The Convention, with 168 signatories and
148 parties, is one of the most widely embraced of multilateral treaties.
Domestically, governments now widely accept that protecting the public from
second-hand smoke is a legitimate policy objective. Many provinces have banned
smoking in enclosed public places, and some are legislating to recover health
care costs from tobacco manufacturers and to restrict tobacco promotion even
further than the federal Tobacco Act . The tobacco industry has been
criticized for its use of “light” and “mild” cigarette designations, which the
manufacturers agreed in 2006 to discontinue following an investigation by the
Competition Bureau.
11
None of these developments remove the burden on the Crown to show
that limitations on free expression imposed by the legislation are demonstrably
justified in a free and democratic society, as required by s. 1 of the Charter .
The mere fact that the legislation represents Parliament’s response to a
decision of this Court does not militate for or against deference: P. W. Hogg,
A. A. Bushell Thornton and W. K. Wright, “Charter Dialogue Revisited —
Or ‘Much Ado About Metaphors’” (2007) 45 Osgoode Hall L.J. 1, at pp.
47-48. The legal template set out in Oakes and RJR remains
applicable. However, when that template is applied to the evidence adduced by
the government in this case more than a decade later, different conclusions may
emerge. RJR was grounded in a different historical context and based on
different findings supported by a different record at a different time. The Tobacco
Act must be assessed in light of the knowledge, social conditions and
regulatory environment revealed by the evidence presented in this case.
III. The
Evidence
12
The trial judge’s findings of fact are worth examining in detail;
the key points are as follows.
13
Some 45,000 Canadians die from tobacco‑related illnesses
every year. By this measure, smoking is the leading public health problem in
Canada.
14
Most smokers begin as teenagers, between the ages of 13 and 16.
Tobacco advertising serves to recruit new smokers, especially adolescents. It
is completely unrealistic to claim that tobacco advertising does not target
people under 19 years of age. Recent tobacco advertising has three objectives:
reaching out to young people, reassuring smokers (to discourage quitting), and
reaching out to women.
15
Tobacco contains nicotine, a highly addictive drug. Some 80
percent of smokers wish they could quit but cannot. However, new smokers,
especially young people, are often unaware of (or tend to deceive themselves
about) the possibility of addiction. Tobacco companies have designed cigarettes
to deliver increased levels of nicotine.
16
The percentage of Canadians who smoke fell from 35 percent to 24
percent between 1985 and 2000. The percentage of smokers fell in every age
group except 15‑ to 19‑year‑olds.
17
The manufacturers admitted that they produce almost all of the
cigarettes sold in Canada, and that their businesses are profitable despite the
fact that cigarettes are heavily taxed. They also admitted to spending
substantial sums promoting their respective brands.
IV. The
Legislative and Regulatory Scheme
18
The purposes of the Tobacco Act are “to provide a
legislative response to a national public health problem of substantial and
pressing concern ...” and, more particularly, “to protect the health of
Canadians in light of conclusive evidence implicating tobacco use in the
incidence of numerous debilitating and fatal diseases”; “to protect young
persons and others from inducements to use tobacco products and the consequent
dependence on them”; “ to protect the health of young persons by restricting
access to tobacco products”; and “to enhance public awareness of the health
hazards of using tobacco products”: s. 4(a), (b), (c) and
(d) (see Appendix A, setting out relevant portions of the Act).
19
The Tobacco Act seeks to accomplish these purposes by
targeting “the four Ps” of tobacco marketing: product, price, point of sale and
promotion. These appeals deal only with the fourth “P” — promotion — which is
regulated under Part IV of the Act. In addition to the provisions impugned in
these appeals, Part IV prohibits celebrity endorsements, regulates the
distribution of branded accessories and non-tobacco products, prohibits sales
promotions such as rebates, prizes and free samples, and regulates the retail
display of tobacco products. The government chose the current structure of the
legislation after extensive public consultation and after considering a number
of alternatives.
20
Restrictions on tobacco advertising are a valid exercise of
Parliament’s criminal law power: RJR. However, the regulatory offences
created by the Tobacco Act are not true crimes and are punishable on a
strict liability basis: see R. v. Wholesale Travel Group Inc., [1991]
3 S.C.R. 154. Violations of the promotion provisions carry serious penalties:
fines of up to $300,000 per day and/or imprisonment for up to two years (ss. 43
and 47 ). A tobacco company can be convicted of a separate offence for each day
the violation continues (s. 49 ). Directors and officers can be convicted for
offences committed by corporations (s. 50 ).
21
The basic structure of the limitations on advertising and
promotion, along with the manufacturers’ objections to them, may be described
as follows.
1. Promotion
22
The starting point is a general prohibition on promoting tobacco
products, except as authorized by the Act or regulations:
19. No person shall promote a tobacco
product or a tobacco product-related brand element except as authorized by this
Act or the regulations.
“Promotion” is
defined in s. 18 . The basic definition is broad:
18. (1) In this Part, “promotion” means 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.
23
Section 18(2) creates exceptions to this general prohibition.
The first is an exception for representations of tobacco products in works of
art or science, provided no consideration is given for the use or depiction in
the work, production or performance: s. 18(2)(a). The second is an
exception for “a report, commentary or opinion in respect of a tobacco product
...”, provided no consideration is given by a manufacturer or retailer for a
reference to a tobacco product: s. 18(2)(b). The third exception, which
does not concern us here, is for promotion within the tobacco industry: s.
18(2)(c). The manufacturers argue that the prohibition on depiction of
tobacco products in scientific works if consideration is given prevents them
from funding and publishing scientific research on tobacco products.
2. Specific
Prohibitions: False Promotion; Lifestyle Advertising; Advertising Appealing
to
Young Persons
24
Having broadly prohibited promotion subject to the specific
exceptions within s. 18(2) and other provisions of the Act or regulations, the
legislation goes on to make a number of specific prohibitions.
25
The first is a broad blanket prohibition against false or
deceptive promotion of tobacco products:
20. No person shall promote a tobacco
product by any means, including by means of the packaging, that are false,
misleading or deceptive or that are likely to create an erroneous impression
about the characteristics, health effects or health hazards of the tobacco
product or its emissions.
The
manufacturers argue that this prohibition is impermissibly vague and overbroad,
because it forbids not only false or deceptive promotion (terms that have a
recognized legal meaning), but goes on to prohibit anything “likely to create
an erroneous impression about the characteristics” and health risks of tobacco
products.
26
The legislation also prohibits testimonials and endorsements (s.
21 ), which the manufacturers do not challenge. Prohibitions affecting
packaging and display (ss. 23 , 24 , 25 and 26 ) are similarly not challenged
(with the exception of mandatory health warnings on packaging).
27
In s. 22(1), the Act prohibits advertisements that depict “a
tobacco product, its package or a brand element”. However, in s. 22(2) , it
goes on to carve out an exception from this prohibition for information and
brand-preference advertising in publications addressed and mailed to identified
adults, in publications with an adult readership of not less than 85 percent,
or in signs in places not frequented by young persons.
28
The effect of s. 22(2) is to allow information or
brand-preference advertising of tobacco products in publications and venues
where adults will constitute the principal audience. However, presumably
because Parliament was concerned that such advertising could still reach young
people (for example, because publications with an 85 percent adult readership
may nevertheless be read by large numbers of young persons), or could cross the
line into lifestyle advertising, it further qualified this already restricted
form of advertising:
22. ...
(3) Subsection (2) does not apply to lifestyle
advertising or advertising that could be construed on reasonable grounds to be
appealing to young persons.
“Lifestyle
advertising” is defined in s. 22(4) as “advertising that associates a product
with, or evokes a positive or negative emotion about or image of, a way of life
such as one that includes glamour, recreation, excitement, vitality, risk or
daring”. No definition is provided of what might be appealing to young
persons. The manufacturers argue that the prohibitions on lifestyle
advertising and advertising appealing to young persons are vague and overbroad,
and thus unconstitutional.
29
The disputed phrases referring to lifestyle advertising and
advertising appealing to young persons reappear in s. 27 , which prevents the
use of brand elements of tobacco products on non-tobacco products.
3. Sponsorships
30
Section 24 of the Tobacco Act forbids the display of
tobacco brand elements or manufacturers’ names in any promotion “that is used,
directly or indirectly, in the sponsorship of a person, entity, event, activity
or permanent facility”. Section 25 forbids display of brand elements or
manufacturers’ names on any “permanent facility”, if this associates the
element or name with a sports or cultural event or activity. The manufacturers
challenge these prohibitions on sponsorships. They argue
first that the general ban on promotion is not justified and, alternatively,
that if it is, the specific ban on the use of corporate names, as distinguished
from brand elements, is overbroad, and thus unconstitutional.
4. Warnings on Packaging
31
Finally, the new regulations (the TPIR, Appendix B)
increase the required size of warning labels on packaging from 33 percent to 50
percent of the principal display surfaces (s. 5(2)(b)). The
manufacturers object to the increase, arguing that the warnings infringe their
freedom of expression and that the government has not shown the increase in
size to be justified.
V. Analysis
32
Before turning to the challenged provisions in more detail, it
may be helpful to discuss the main principles that guide the analysis of their
constitutionality.
33
The manufacturers challenge the disputed provisions on the ground
that they infringe or limit their right to freedom of expression under s. 2 (b)
of the Charter . The government concedes this infringement,
except in the case of the increase in size of the warning labels, but says the
limits on the right are justified under s. 1 of the Charter .
34
Section 2 (b) of the Charter provides:
2. Everyone has the following fundamental freedoms:
.
. .
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication.
When the Charter
was adopted, the question arose of whether the free expression guarantee
extended to commercial expression by corporations. This Court ruled that it
did: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
The Court premised this conclusion on an examination of the values protected by
the free expression guarantee: individual self-fulfilment, truth seeking and
democratic participation. It concluded that, given the Court’s previous
pronouncements that Charter rights should be given a large and liberal
interpretation, there was no sound reason for excluding commercial expression
from the protection of s. 2(b). It noted that commercial speech may be
useful in giving consumers information about products and providing a basis for
consumer purchasing decisions: Ford v. Quebec (Attorney General), [1988]
2 S.C.R. 712, at pp. 766-67.
35
The main issue with respect to the challenged provisions is
whether the government has shown them to be “demonstrably justified in a free
and democratic society” under s. 1 of the Charter , which
provides:
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
36
This engages what in law is known as the proportionality
analysis. Most modern constitutions recognize that rights are not absolute and
can be limited if this is necessary to achieve an important objective and if
the limit is appropriately tailored, or proportionate. The concept of proportionality
finds its roots in ancient and scholastic scholarship on the legitimate
exercise of government power. Its modern articulations may be traced to the
Supreme Court of Germany and the European Court of Human Rights, which were
influenced by earlier German law: A. Barak, “Proportional Effect: The Israeli
Experience” (2007), 57 U.T.L.J. 369, at pp. 370-371). This Court in Oakes
set out a test of proportionality that mirrors the elements of this idea of
proportionality — first, the law must serve an important purpose, and second,
the means it uses to attain this purpose must be proportionate.
Proportionality in turn involves rational connection between the means and the
objective, minimal impairment and proportionality of effects. As Dickson C.J.
stated in Oakes, at p. 139:
There are, in my view, three important components of a proportionality
test. First, the measures adopted must be carefully designed to achieve the
objective in question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally connected to the
objective. Second, the means, even if rationally connected to the objective in
this first sense, should impair “as little as possible” the right or freedom in
question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third,
there must be a proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the objective
which has been identified as of “sufficient importance”. [Emphasis deleted.]
37
The broad objective of the limitations on freedom of expression
at issue in this case is to deal with the public health problem posed by
tobacco consumption by protecting Canadians against debilitating and fatal
diseases associated with tobacco consumption. More particularly, the Act seeks
to enhance public awareness of the health hazards of using tobacco products and
to protect the health of young people by restricting access to tobacco
products: s. 4. An objective will be deemed proper if it is for the
realization of collective goals of fundamental importance: P. W. Hogg, Constitutional
Law of Canada, (loose-leaf ed.), vol. 2 at p. 38-22; Oakes, at p.
136. In the words of Oakes, the objective must be “pressing and
substantial”.
38
As discussed in RJR, determining the objective of a
statute for the purposes of the proportionality analysis may be difficult.
Statutes may have different objectives, at different levels of abstraction.
The broader and more expansive the objective, the harder it may be to show that
the means adopted to promote it impair rights minimally. In this case,
Parliament has stated its overall objective broadly: protecting the health of
Canadians and responding to a national public health problem. No one disputes
the importance of this objective. But Parliament has also stated its objectives
more narrowly, linking the broader purpose to the objective of the particular
provisions at issue, for example protecting young persons and others from
inducements to use tobacco and enhancing public awareness of the health hazards
of using tobacco. By defining its objective with such precision, Parliament has
taken care not to overstate it or exaggerate its importance: RJR, at
para. 144.
39
This brings us to the other side of the proportionality analysis
— the means by which Parliament has chosen to pursue its objective. Here those
means involve a limitation on free expression which is protected by the
Constitution. To pass muster, the means must be rationally connected to the objective,
impair the right in a minimal, tailored fashion, and be proportionate or
balanced in effect. Whether these requirements are met must be assessed in
relation to the particular restriction imposed.
40
Few cases have foundered on the requirement of rational
connection. That, however, does not mean that this step is unimportant. The
government must establish that the means it has chosen are linked to the
objective. At the very least, it must be possible to argue that the means may
help to bring about the objective. This was a problem in RJR, where
the trial judge found that while the government had completely banned
commercial advertising, it had not established that pure information or
brand-preference advertising was connected to an increase in consumption. In
the current Act, Parliament sought to avoid this difficulty by permitting
information and brand-preference advertising, subject to exceptions.
41
Deference may be appropriate in assessing whether the requirement
of rational connection is made out. Effective answers to complex social
problems, such as tobacco consumption, may not be simple or evident. There may
be room for debate about what will work and what will not, and the outcome may
not be scientifically measurable. Parliament’s decision as to what means to
adopt should be accorded considerable deference in such cases.
42
The means must not only be rationally connected to the objective;
they must be shown to be “minimally impairing” of the right. The means must be
carefully tailored to the objective. Parliament is entitled to pursue its
objective, but in doing so, it must impair the rights of Canadians as little as
possible.
43
Again, a certain measure of deference may be appropriate, where
the problem Parliament is tackling is a complex social problem. There may be
many ways to approach a particular problem, and no certainty as to which will
be the most effective. It may, in the calm of the courtroom, be possible to
imagine a solution that impairs the right at stake less than the solution
Parliament has adopted. But one must also ask whether the alternative would be
reasonably effective when weighed against the means chosen by Parliament. To
complicate matters, a particular legislative regime may have a number of goals,
and impairing a right minimally in the furtherance of one particular goal may
inhibit achieving another goal. Crafting legislative solutions to complex
problems is necessarily a complex task. It is a task that requires weighing
and balancing. For this reason, this Court has held that on complex social
issues, the minimal impairment requirement is met if Parliament has chosen one
of several reasonable alternatives: R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713; Irwin Toy.
44
The minimal impairment analysis in this case will also be
coloured by the relationship between constitutional review and statutory
interpretation. Before engaging in constitutional review, the law must be
construed. This may have a critical effect at the stage of minimal impairment,
where overbreadth is alleged. The process of interpretation may resolve
ambiguity in favour of a more limited meaning. This may only be done in cases
of real ambiguity in the statute. In cases of ambiguity, therefore, claims of
overbreadth may be resolved by appropriate interpretation: R. v. Sharpe,
[2001] 1 S.C.R. 45, 2001 SCC 2, at para. 32.
45
The final question is whether there is proportionality between
the effects of the measure that limits the right and the law’s objective.
This inquiry focuses on the practical impact of the law. What benefits will
the measure yield in terms of the collective good sought to be achieved? How
important is the limitation on the right? When one is weighed against the
other, is the limitation justified?
46
Although cases are most often resolved on the issue of minimal
impairment, the final inquiry into proportionality of effects is essential. It
is the only place where the attainment of the objective may be weighed against
the impact on the right. If rational connection and minimal impairment were to
be met, and the analysis were to end there, the result might be to uphold a
severe impairment on a right in the face of a less important objective.
47
As will be seen, this case, while argued mainly on the basis of
minimal impairment, engages concerns relating to proportionality of effects.
The potential benefits of decreasing tobacco use and discouraging young people
from becoming addicted to it are high. On the other hand, a number of the
deleterious effects on the right arguably fall at the low end of the spectrum
of free expression. (The alleged ban on publication of scientific research is
an exception.) When commercial expression is used, as alleged here, for the
purposes of inducing people to engage in harmful and addictive behaviour, its
value becomes tenuous.
48
Against this background, I turn more specifically to the
challenged provisions of the legislative and regulatory scheme.
1. Publication
of Manufacturer-Sponsored Scientific Works
49
As mentioned previously, s. 19 of the Act sets out a general ban
on the promotion of tobacco products, subject to specific exceptions. Section
18(2) excludes some forms of promotion from this ban, including “literary,
dramatic, musical, cinematographic, scientific, educational or artistic” works
that “use or depict” tobacco products, so long as no consideration is given for
the use or depiction of the tobacco product.
50
The manufacturers argue that this exception is not broad enough
to exempt the publication of legitimate scientific research. If they sponsor
research, they will be giving consideration for it. This bars them from
publishing the results of legitimate scientific research. For example, research
carried out by a tenured professor under a grant from a tobacco manufacturer,
producing results that are favourable to (and hence “promoting”) a tobacco
product, could not, they claim, even be published in a peer-reviewed journal.
51
The trial judge, Denis J., held that s. 18 is confined to
commercial promotion and that this does not restrict legitimate scientific
research. However, the Court of Appeal, per Beauregard J.A., held that
the ss. 18 and 19 did impose a restriction on publication of scientific
research, and went on to find them an unjustified intrusion on the right of
free expression. To correct the situation, the Court of Appeal ordered that
the exclusion from the exemption of works for which consideration is given, as
applied to scientific works, should be read out of s. 18(2).
52
A ban on the publication of all sponsored scientific work, if
that is what the Act requires, is difficult to justify. Even if it could be
argued that such a ban meets the rational connection test on the basis that
sponsored research might produce results that could encourage tobacco
consumption, such a ban would likely not minimally intrude on the right of free
expression. The possibility of sponsoring scientific work on tobacco could, to
be sure, be abused. For example, tobacco companies could pay for scientific
studies that are deceptive or misleading, or the publication of which is aimed
at teenagers. But these concerns, it might be argued, do not justify a
wholesale ban on publishing scientific works; they can and should be
specifically targeted. Nor, arguably, would a total ban on sponsored
scientific works satisfy the requirement of proportionality of effects. The
benefits of publishing legitimate scientific research are likely to outweigh
any detriment to Parliament’s goals. The expressive activity of publishing
scientific research is valuable, and prohibitions on it have an impact on the
right to free expression in a serious manner. By contrast, the beneficial
effect of the ban could be tenuous. However it is viewed, the manufacturers
assert, the ban unjustifiably restricts their right of freedom of expression.
Potentially valuable expression is restricted, to no good or proportionate
end.
53
The question remains, however: do the provisions, properly
interpreted, impose a total ban on sponsored scientific research? In my view,
the answer to this question is no. Properly construed, ss. 18 and 19 permit
the publication of legitimate scientific works sponsored by the tobacco
manufacturers.
54
I begin with the proposition that these sections, as applied to
scientific works, are ambiguous. It is not clear, on the face of the words,
what Parliament intended. Section 18 is oddly drafted. Read literally, s. 18(2)(a),
in combination with the definition in s. 18(1) and the prohibition in s. 19 ,
would effect a broad ban on scientific works. Such a reading seems misplaced.
It fits neither the scheme of ss. 18 and 19 nor Parliament’s goals. The primary
object of s. 18 is “product placement” directed at consumers, such as the
practice of a tobacco manufacturer paying a studio to have its brand of
cigarettes appear in a film. Although the Attorney General claims that the
same concerns about “product placement” arise in regard to scientific works, it
is hard to see why this would lead to a ban on all legitimate, funded
scientific work.
55
Confronted with a statutory provision that, read literally, seems
to make no sense, the court should ask whether the section can be interpreted
in a manner that fits the context and achieves a rational result. This flows
from the modern approach to statutory interpretation, as expressed by Driedger
in a passage often quoted by this Court:
Today there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.
(Sharpe, at para. 33, quoting E. A. Driedger, Construction of
Statutes (2nd ed. 1983), at p. 87)
56
The Attorney General of Canada urges a purposive interpretation
of s. 18 that confines “promotion” to commercial promotion. This was the
approach of the trial judge, Denis J., who held that only commercial promotion
targeting consumers was caught by s. 18 (at para. 341). Read in this way, ss.
18 and 19 do not prohibit the publication of legitimate scientific research,
because it is neither commercial nor aimed at consumers. On the other hand, a
manufacturer would be prohibited from paying for a particular brand to be
included in a commercial scientific work directed at consumers. Such a limit on
free expression would, however, be saved under s. 1 of the Charter ;
rational connection, minimal impairment and proportionality of effects would be
clearly established. This interpretation brings the reference to “scientific
work” in s. 18(2) (a) into harmony with the purpose and wording of s. 18
as a whole.
57
I conclude that “promotion” in s. 18 should be read as meaning
commercial promotion directly or indirectly targeted at consumers.
2. False
Promotion
58
Section 20 bans “false, misleading or deceptive” promotion, as
well as promotion “likely to create an erroneous impression about the
characteristics, health effects or health hazards of the tobacco product or its
emissions”.
59
The trial judge upheld this provision, on the basis that it did
not violate the s. 2 (b) guarantee of freedom of expression. The Court
of Appeal, per Beauregard J.A., held that the words “likely to create
an erroneous impression” were vague and overbroad and thus could not be
justified as a reasonable limit on free expression under s. 1 . The court
ordered the offending phrase struck from s. 20 .
60
Section 20 clearly infringes the guarantee of freedom of
expression. The Charter is content-neutral and protects the expression
of both truths and falsehoods. Consequently, the regulation of falsehoods must
be justified under s. 1 of the Charter . See R. v. Zundel, [1992]
2 S.C.R. 731; R. v. Lucas, [1998] 1 S.C.R. 439.
61
The s. 1 inquiry into the justification of the ban imposed by s.
20 of the Act must be set in the factual context of a long history of
misleading and deceptive advertising by the tobacco industry. The creative
ability of the manufacturers to send positive messages about a product widely
known to be noxious is impressive. In recent years, for example, manufacturers
have used labels such as “additive free” and “100% Canadian tobacco” to convey
the impression that their product is wholesome and healthful. Technically, the
labels may be true. But their intent and effect is to falsely lull consumers
into believing, as they ask for the package behind the counter, that the
product they will consume will not harm them, or at any rate will harm them
less than would other tobacco products, despite evidence demonstrating that
products bearing these labels are in fact no safer than other tobacco
products. The wording chosen by Parliament in s. 20 and its justification must
be evaluated with this context in mind. Parliament’s concern was to combat
misleading false inferences about product safety and to promote informed,
enlightened consumer choice.
62
The specific objection is to the phrase “or that are likely to
create an erroneous impression” in s. 20 . The manufacturers argue that this
phrase is overbroad and vague, and introduces subjective considerations. How,
they ask, can they predict what is “likely to create an erroneous impression”?
The words false, misleading or deceptive, used as legal terms, generally refer
to objectively ascertainable facts. If “likely to create an erroneous
impression” adds something to “false, misleading or deceptive”, as presumably
was Parliament’s intent, what is it?
63
The answer is that the phrase “likely to create an erroneous
impression” is directed at promotion that, while not literally false,
misleading or deceptive in the traditional legal sense, conveys an erroneous
impression about the effects of the tobacco product, in the sense of leading
consumers to infer things that are not true. It represents an attempt to cover
the grey area between demonstrable falsity and invitation to false inference
that tobacco manufacturers have successfully exploited in the past.
64
The industry practice of promoting tobacco consumption by
inducing consumers to draw false inferences about the safety of the products is
widespread. This suggests that it is viewed by the industry as effective.
Parliament has responded by banning promotion that is “likely to create an
erroneous impression”. This constitutes a limit on free expression. The only
question is whether the limit is justified under s. 1 of the Charter .
65
Parliament’s objective of combating the promotion of tobacco
products by half-truths and by invitation to false inference constitutes a
pressing and substantial objective, capable of justifying limits on the right
of free expression. Prohibiting such forms of promotion is rationally
connected to Parliament’s public health and consumer protection purposes.
66
The impugned phrase does not impair the right of free expression
more than is necessary to achieve the objective. The words false, misleading or
deceptive do not do the work assigned to the additional phrase, “likely to
create an erroneous impression”. Nor is it easy to find narrower words that
would accomplish that task. The exact wording of the impugned phrase appears
in the English version of Art. 11(1)(a) and 13(4)(a) of the WHO Framework
Convention on Tobacco Control. The French version uses almost identical
wording. The Convention mandates the use of such language in parties’ national
law, subject to the application of domestic constitutional principles. At
least three other Canadian statutes use similar wording: the Food and Drugs
Act, R.S.C. 1985, c. F-27, s. 5(1) ; the Radiation Emitting
Devices Act, R.S.C. 1985, c. R-1, s. 5(1) ; the Animal Pedigree
Act, R.S.C. 1985, c. 8 (4th Supp .), s. 64 . These examples lend weight to
the conclusion that the ban on promotion “likely to create an erroneous
impression” is not overbroad or vague, but on the contrary, falls within a
range of reasonable alternatives.
67
I would reject the manufacturers’ claim that the French wording “susceptible
de créer une fausse impression” is significantly broader than the English
“likely to create an erroneous impression”. “Susceptible” is not
equivalent to the English “susceptible”; it is often used as the equivalent of
“likely”, including in the WHO Convention. When the English and French
versions of the statute are considered together, the meaning is clear.
68
Finally, the impugned phrase meets the requirement of
proportionality of effects. On the one hand, the objective is of great
importance, nothing less than a matter of life or death for millions of people
who could be affected, and the evidence shows that banning advertising by
half-truths and by invitation to false inference may help reduce smoking. The
reliance of tobacco manufacturers on this type of advertising attests to this.
On the other hand, the expression at stake is of low value — the right to
invite consumers to draw an erroneous inference as to the healthfulness of a
product that, on the evidence, will almost certainly harm them. On balance, the
effect of the ban is proportional.
69
I conclude that the ban on false promotion, and particularly on
promotion “likely to create an erroneous impression”, is justified under s. 1
of the Charter as a reasonable limit on free expression and that s. 20
of the Tobacco Act is constitutional.
3. Advertising
and Promotion Appealing to Young Persons
70
The Tobacco Act uses three particular means of protecting
young persons from tobacco advertising and promotion. The first consists of
the placement restrictions, found in s. 22(2) . The second is a ban on
advertising that “could be construed on reasonable grounds to be appealing to
young persons”, found in s. 22(3) . The third is a ban on the use of tobacco
brand elements on non-tobacco products that are “associated with young persons
or could be construed on reasonable grounds to be appealing to young persons”:
s. 27 (a). The manufacturers challenge the second of these measures, the
ban on advertising that “could be construed on reasonable grounds to be
appealing to young persons”: s. 22(3) .
71
The structure of the scheme at issue, broadly put, is this. As
mentioned previously, s. 22(2) permits information and brand-preference
advertising in certain media and certain locations. Brand-preference
advertising is broadly defined as “advertising that promotes a tobacco product
by means of its brand characteristics”. Brand characteristics arguably may
include elements that are directed at young persons. To remove these elements,
s. 22(3) of the Act claws them back. The result is to ban this type of
advertising.
72
There is no doubt that this ban limits free expression and thus
infringes s. 2 (b) of the Charter . The only question
is whether the ban is justified under s. 1 of the Charter . I conclude
that it is.
73
Once again, the analysis must begin by interpreting s. 22(3).
Again, the question is what Parliament intended the section to mean. In this
case, the task of interpretation is challenging. The language used, whether in
English or in French, is not without difficulty. To complicate matters, the
two versions can be read as imparting different nuances.
74
The courts below struggled with these difficulties. The trial
judge, Denis J., began by rejecting the tobacco industry’s evidence that
tobacco advertising does not target youth, and is directed only at
brand-switching among adults. He found that much of the industry’s
advertising is in fact aimed at youth, and that persuading teenagers to take up
smoking was a calculated and deliberate industry advertising strategy. He went
on to hold that the phrases “reasonable grounds”, “could be” and “appealing to
young persons” are well understood and sufficient to allow a judge in a particular
case to decide if a violation had been made out.
75
The Court of Appeal divided on the constitutionality of the
provision. The majority (Brossard and Rayle JJ.A.) upheld it. Like the trial
judge, they took the test to be whether the words are capable of interpretation
by a tribunal. They held that they were. They emphasized that on this matter,
a great deal of deference must be accorded to Parliament’s choice. Parliament,
in their view, has the right to be draconian when it comes to children and youth.
The offence, they noted, is not criminal but regulatory. The ban is aimed at
protecting a vulnerable group. When the importance of the objective is
compared with the lack of value of the expression constrained, there can be no
doubt that it is proportionate, in their view. The courts, in these
circumstances, must defer to Parliament.
76
Beauregard J.A. dissented. In his view, the provision is
overbroad. It is not enough that a judge be able to apply the section; in
addition, it must permit the tobacco manufacturers to know what is allowed and
what is not allowed. It must be possible to distinguish between what is
appealing to young persons and is banned, and what is appealing to adults and
is permitted. Because this line cannot be drawn, the effect, in the view of
Beauregard J.A., is to make this a total ban on all information and
brand-preference advertising, contrary to the clear purport of s. 22(2) . The
remedy, in his view, was to strike from s. 22(3) the phrase “or advertising that
could be construed on reasonable grounds to be appealing to young persons”.
77
The manufacturers attribute two vices to the provision banning
advertising that could be appealing to youth: vagueness and overbreadth. The
two are related. The manufacturers’ main point is that the provision offers
insufficient guidance for them to know when they might be running afoul of the
law. The manufacturers’ argument strongly resembles a s. 7 “vagueness”
argument. However, since s. 7 is not at issue in this case, it is appropriate
to deal with this under s. 1 , either as a lack of a “limit prescribed by law”
or as a lack of minimal impairment. As Sopinka J. stated in Osborne v.
Canada (Treasury Board), [1991] 2 S.C.R. 69, at pp. 94‑95 (cited with
approval by a unanimous Court in Canadian Broadcasting Corp. v. New
Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 56):
Vagueness can have constitutional significance in
at least two ways in a s. 1 analysis. A law may be so uncertain as to be
incapable of being interpreted so as to constitute any restraint on
governmental power. ... In these circumstances, there is no “limit prescribed
by law” and no s. 1 analysis is necessary as the threshold requirement for its
application is not met. The second way in which vagueness can play a
constitutional role is in the analysis of s. 1 . A law which passes the
threshold test may, nevertheless, by reason of its imprecision, not qualify as
a reasonable limit. Generality and imprecision of language may fail to confine
the invasion of a Charter right within reasonable limits. In this sense
vagueness is an aspect of overbreadth.
78
It is thus clear that both overbreadth and vagueness can be
considered in determining whether a limit on free expression is justified under
s. 1 of the Charter , although the two concepts raise distinct
considerations. Overbreadth is concerned with whether the provision on its
face catches more expression than necessary to meet the legislator’s
objective. The criticism is not that the words are unclear, but that while
clear, they go too far. Vagueness, by contrast, focuses on the generality and
imprecision of the language used. The argument is that because the language is
vague and unclear, it may be applied in a way that in fact goes beyond the
legislator’s stated goals. A citizen, corporate or otherwise, who wishes to
stay within the law may have no choice but to err on the side of caution. The
result may be that the citizen says less than is required in fact to accomplish
the state’s object. Indeed, confronted by vague bans on speech, the prudent
citizen may be reduced to saying nothing at all. Like clear language that
casts the statutory net too broadly, overbreadth by reason of vagueness goes to
the heart of the requirement of minimal impairment.
79
It follows from this that two things must be shown in order to
refute a claim of vagueness and overbreadth: first, the provision must give
adequate guidance to those expected to abide by it; and second, it must limit
the discretion of state officials responsible for its enforcement. While
complete certainty is impossible, and some generalization is inevitable, the
law must be sufficiently precise to provide guidance for legal debate: R. v.
Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. The trial judge
and the majority in the Court of Appeal emphasized the need for flexibility and
the impossibility of achieving absolute certainty, but Beauregard J.A.
correctly insisted as well on the principle of providing citizens with
substantive notice in order to guide their conduct. To ask only whether a
trial judge will be able to apply the impugned law when a case comes before him
or her provides an inadequate response to the concern that the law may in the
future be applied in an overbroad way. In effect, it defers the critical
question of actual overbreadth to another day.
80
Against this background, I turn to the task of interpreting s.
22(3). As stated, the aim is to ascertain the intention of Parliament. To do
this, one considers the words used in their legal and social context. One
seeks a common meaning between the English and French texts. And throughout,
one is guided by Parliament’s objective, or purpose. On the matter at issue,
Parliament could not have made its purpose clearer than it has in the Tobacco
Act . It is, quite simply, “to protect young persons and others from
inducements to use tobacco products and the consequent dependence on them”: s.
4(b).
81
A number of phrases in the ban on advertising appealing to young
people are, at first blush, problematic: “could be construed”, “on reasonable
grounds” and “appealing to young persons” are, viewed individually, far from
precise. However, it is the global intention that we must seek.
82
The first striking aspect of s. 22(3) is its insistence on
“reasonable grounds” for concluding that the advertising is within the
prohibited designation. The English version uses the phrase “that could be
construed on reasonable grounds”. The French version uses a different
grammatical construction but picks up the same idea: “dont il existe des
motifs raisonnables de croire” (for which there are reasonable grounds to
believe). The English construction is unusual. The French, however, is one
familiar to the law. “Reasonable grounds to believe” is a common concept,
particularly in criminal law. I conclude that the common meaning of this part
of the provision is reasonable grounds to believe that the advertising in
question falls within the prohibition. This is an objective standard, and one
with clear legal content.
83
The more difficult aspect of the wording is the use of the
conditional “could be” or “pourrait” in the provision. “Reasonable
grounds to believe” in the criminal context is generally used with the factual,
indicative tense; the person making the assessment must have reasonable grounds
for the belief in question. Section 22(3) is different. The English version
uses “could be construed on reasonable grounds”. This suggests that there
should be reasonable grounds, but that the person making the assessment would
not need to be as certain of their actual existence as would be the case in the
criminal context. The French version uses a different construction
altogether. The conditional “pourrait” in the French version does not
describe the activity of assessing or construing the grounds, as in the English
version, but rather the character of the prohibited advertising: “qu’elle
pourrait être attrayante pour les jeunes”, i.e. that it could be appealing
to young persons.
84
Again, I find the French version more helpful. The suggestion in
the English version that there be reasonable grounds but that the person
assessing them need not be entirely certain about them seems to involve a
contradiction in terms. If reasonable grounds exist, it is hard to imagine how
one could be in doubt about them. The French version avoids this difficulty:
one must have reasonable grounds to conclude that the advertising “could be”
appealing to young persons. This captures the idea that the reasonable grounds
exist but that there may be doubt about whether in fact young persons would
find the advertising appealing. Read thusly, the phrase serves the purpose of
relieving the prosecutor of proving that a particular advertisement in fact was
appealing to one or more young persons. All that is required is that the
evidence establish that the advertising could be appealing to young persons.
85
This leaves the phrase “appealing to young persons”. In the
English version, “appealing” could arguably be read as a verb, in the sense of
“making an appeal to”, although its adjectival sense of something that is
“attractive [and] of interest” appears to be more natural (Canadian Oxford
Dictionary (2nd ed. 2004), at p. 61). In French, the phrase “attrayante”
is clearly adjectival — the question is whether the advertisement could be “attrayante”
or appealing to young persons. I conclude that “appealing” must be read as an
adjective in English as well.
86
The last part of the puzzle is what Parliament intended by
singling out advertising appealing “to young persons”. Could this include all
advertising, even advertising that is primarily appealing to adults, on the
theory that such advertising could also be appealing to some young persons? Or
did Parliament intend to confine the exception carved out from the broader
permission for information and brand-preference advertising to advertising that
is particularly appealing to young persons?
87
In my view, the only reasonable conclusion is the latter.
Parliament had already said, in s. 22(2) , that information and brand-preference
advertising was permitted in appropriate places. The purpose of s. 22(3) is to
protect a narrower subset of consumers whose particular tastes cannot be
reflected in advertising. To read “could be appealing to young persons” as
including all advertising would defeat this purpose and render s. 22(2)
meaningless. Moreover, the words “to young persons” must be assumed to have
been included for a purpose. To read them as extending to everyone also
renders them meaningless. The rule that the legislator does not speak in vain
suggests that this interpretation should be rejected: Attorney General of
Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831. Finally,
reading s. 22(3) as confined to advertising particularly appealing to young
persons is consistent with Parliament’s purpose of preventing young people from
taking up smoking and becoming addicted to tobacco.
88
For these reasons, I conclude that s. 22(3) must be read as
creating a ban for information and brand-preference advertising that could be
appealing to a particular segment of society, namely young people. In order to
establish this element, the prosecutor must show that the advertisement in
question could be attractive to young people, as distinguished from the general
adult population.
89
At the end of this exercise in interpretation, we arrive at a
common meaning for the French and English versions of s. 22(3), which is
consistent with Parliament’s stated purpose of preventing young persons in
particular from taking up smoking. Section 22(3), thus interpreted, requires
the prosecution in a given case to prove that there are reasonable grounds to
believe that the advertisement of a tobacco product at issue could be appealing
to young persons, in the sense that it could be particularly attractive and of
interest to young persons, as distinguished from the general population.
90
Having established the meaning of s. 22(3), I turn to the
question of whether the incursion on free expression that it represents has
been shown to be a reasonable limit demonstrably justified in a free and
democratic society under s. 1 of the Charter .
91
It is not disputed that Parliament’s objective of preventing
young people from being tempted to take up tobacco use and consequently
becoming addicted is pressing and substantial. Nor is there doubt that a ban
on advertising appealing to young persons is rationally connected to this goal.
92
The manufacturers’ claims that the provision is not minimally
impairing by reason of vagueness and overbreadth, however, require close
consideration. I cannot endorse the view of Rayle J.A. that [translation] “in the context of the
protection of children, the minimal impairment branch of the section 1 test is
not relevant” (para. 341). However, I conclude that s. 22(3), construed as I
have suggested, is not vague. It does not impose a total ban on advertising.
Information and brand-preference advertising is permitted, provided that it is
not done in places that young persons are likely to frequent or publications
not addressed to adults, and provided that it is not lifestyle advertising
(considered below) or advertising that there are reasonable grounds to believe
that it could be appealing to young people as a group.
93
Is the ban on advertising that could appeal to young persons
overbroad? Does it go farther than necessary to accomplish Parliament’s purpose?
It might be argued that it is enough to confine advertising to information and
brand-preference and to impose placement restrictions, and that the further
limit imposed by s. 22(3) is unnecessary. But this argument overlooks the
breadth of Parliament’s definition of brand-preference advertising, which may
well permit advertising targeted at young persons. Information, too, can be
packaged in many ways. These realities, coupled with the possibility that young
persons may see or read that material permitted by the placement restrictions,
justify a specific restriction on material that could be appealing to young
persons. Brand-preference advertising is permitted in publications sent by
mail to an identified adult (s. 22(2) (a)) or with an adult readership of
at least 85 percent (s. 22(2) (b)). These publications may nevertheless
be read by young persons. The purpose of s. 22(3), in this context, is to
prevent advertising in these publications that “could be” appealing to young
people, as opposed to the general adult population. Section 22(3) simply
forbids presenting this type of advertising in a way that could have a
particular appeal to young persons. Given the sophistication and subtlety of
tobacco advertising practices in the past, as demonstrated by the record in
this case, Parliament cannot be said to have gone farther than necessary in
blocking advertising that might influence young persons to start smoking.
94
Finally, s. 22(3) meets the requirement of proportionality of
effects. The prohibited speech is of low value. Information about tobacco
products and the characteristics of brands may have some value to the consumer
who is already addicted to tobacco. But it is not great. On the other hand,
the beneficial effects of the ban for young persons and for society at large
may be significant. The placement restrictions may mean that the majority of
people seeing the advertising prohibited by s. 22(3) are adults. The
restrictions may impose a cost in terms of the information and brand-preference
advertising they may be able to receive. But that cost is small; all that is
prohibited is advertising that could be specifically appealing to young
people. Moreover, the vulnerability of the young may justify measures that
privilege them over adults in matters of free expression. Thus in Irwin Toy,
at p. 982, the Court upheld a stipulation that the late hour of advertising
did not create a presumption that it was not aimed at children, with the
observation that such a stipulation “makes clear that children’s product
advertising, if presented in a manner aimed to attract children, is not
permitted even if adults form the largest part of the public likely to see the
advertisement.”
95
I conclude that the limit on free expression imposed by s. 22(3),
properly interpreted, is justified as reasonable under s. 1 of the Charter .
4. Lifestyle
Advertising
96
Section 22(3) carves out from permitted information and
brand-preference advertising under s. 22(2) two types of advertising: advertising
that could appeal to young persons, just considered, and lifestyle
advertising.
97
Section 22(4) defines lifestyle advertising as follows:
“lifestyle advertising” means advertising that
associates a product with, or evokes a positive or negative emotion about or
image of, a way of life such as one that includes glamour, recreation,
excitement, vitality, risk or daring.
98
It is agreed that this provision infringes the s. 2 (b)
guarantee of freedom of expression. The manufacturers, however, argue that it
is overbroad and ask that it be struck down. Alternatively, they ask that the
definition of lifestyle be restricted to the lifestyles specifically referred
to in s. 22(4).
99
The trial judge, Denis J., detailed the industry practice of
using appeals to various lifestyles as a means of selling tobacco products.
Different lifestyles are directed to different segments of the population.
Women and young persons rank high among those targeted by this type of
advertising. The advertising is highly sophisticated. Some associate a
product with a romanticized lifestyle, such as the cowboy image of the
“Marlboro man”. Other advertising may evoke elements of a more ordinary
lifestyle, for example, the image of a cup of coffee or a bath, coupled with a
cigarette. Sometimes the cigarette disappears altogether; only the bath or cup
of coffee is shown, connected discreetly with a particular brand name. Denis
J. upheld the ban on lifestyle advertising on the basis that despite its
references to images and emotions, it was sufficiently clear to permit a court
to interpret it in a particular case.
100
The Court of Appeal divided on the issue. The majority (Brossard
and Rayle JJ.A.) upheld the ban. Parliament, in its view, was justified in
employing a broad definition in order to cover creative forms of advertising
that might not fit within a more traditional definition of lifestyle
advertising. In dissent, Beauregard J.A. argued that it may be impossible to
advertise certain products without evoking a positive or negative emotion about
a lifestyle already associated with those products.
101
I conclude that properly interpreted, the ban on lifestyle
advertising in s. 22(3) constitutes a reasonable and demonstrably
justified limit on the right of free expression.
102
As with the other provisions challenged in these appeals, the
first task is one of interpretation. Some background may be helpful. In RJR,
the majority agreed that on the evidence presented in that case, a prohibition
on lifestyle advertising (but not information and brand-preference advertising)
could have been considered minimally impairing (per McLachlin J., at
para. 164; per Iacobucci J., at para. 191). This was based on the
understanding that lifestyle advertising invariably seeks to increase overall
tobacco consumption, not just to inform existing smokers.
103
The Attorney General of Canada asserts that s. 22 is Canada’s
response to the “guidelines” of the Court. However, the Tobacco Act
departs in important respects from the template discussed in RJR, making
direct comparisons inconclusive.
104
First, the Act defines “lifestyle” differently than did the
discussion in RJR. The definition of lifestyle advertising alluded to in
RJR was broad, unencumbered by the references to “glamour, recreation,
excitement, vitality, risk or daring” found in the Act. Moreover, the Court in RJR
focused on advertising that “associates” a product with a way of life, and made
no references to advertising that “evokes a positive or negative emotion about
or image of” a way of life, as found in the Tobacco Act .
105
Second, the Tobacco Act defines brand-preference
advertising more broadly than the Court did in RJR. In RJR,
brand-preference advertising was restricted in that it had to be aimed only
at existing smokers, inducing them to switch brands, and was restricted to
colour, design and package appearance (per La Forest J., relying on the
definition used in the Court of Appeal ([1993] R.J.Q. 375, 102 D.L.R. (4th)
289), per Brossard J.A.). The Tobacco Act , by contrast, simply
defines brand-preference advertising as “advertising that promotes a tobacco
product by means of its brand characteristics”. This means that the window for
permissible advertising opened by s. 22(2) is broader than it would have been
had the narrower RJR definition of brand preference been adopted.
106
These differences mean that direct comparisons cannot be made
between the lifestyle provisions of the Tobacco Act and the impact of RJR’s
conclusions on brand preference on the scope of lifestyle advertising. The
majority’s approval of brand-preference advertising in RJR was premised
not only on different evidence, but on different definitions of pivotal concepts.
The broad space s. 22(2) allows for permitted advertising must be taken into
account in determining whether the claw-back in s. 22(3) is overbroad. It
follows that the Attorney General’s argument that s. 22(3) must be valid
because it represents Parliament’s response to the “guidelines” the Court
offered in RJR oversimplifies the matter. Our focus must be on the
structure and wording of the Tobacco Act , not on what was said in
RJR on different facts and different definitions of the central concepts.
107
How, then, is lifestyle advertising in s. 22(3) to be construed?
First, the scheme of s. 22 as a whole must be considered. We start with the
fact that s. 22(2) permits information and brand-preference advertising.
Information advertising is relatively clear: it consists of factual information
about the product. This does not exclude, however, the possibility that
information may be so presented that it evokes a lifestyle. Brand-preference
advertising under the Act is even broader. As noted above, the Act did not
adopt the narrow concept of brand-preference advertising set forth in RJR.
Rather, it adopted a definition of “advertising that promotes a tobacco product
by means of its brand characteristics”. As the Canadian Cancer Society argues,
the concept of a “brand” is associated with a lifestyle; in marketing, brands
are intangible images, usually associated with particular lifestyles.
108
After broadly permitting information and brand-preference
advertising under s. 22(2) , the Act goes on to claw back lifestyle advertising
as described in s. 22(4). In other words, s. 22(2) permits advertising that is
associated with a way of life, as well as advertising that evokes images and
emotions, but s. 22(3) removes this permission.
109
The first part of the definition of lifestyle advertising in s.
22(4) is unproblematic. Combined with s. 22(3), it removes advertising that
associates a product with a way of life from the broad ambit of s. 22(2) . This
exclusion, discussed in RJR, is well understood. The next
phrase, however, presents difficulties: “or evokes a positive or negative
emotion about or image of, a way of life”. What does this add? Beauregard
J.A. argued that any advertisement that evokes an image or
emotion about a way of life must necessarily “associate” a product with that
way of life.
110
We must, however, attempt to find a meaning for this phrase, on
the rule that the legislator does not speak in vain: Carrières Ste‑Thérèse.
That meaning emerges from an appreciation of the problem Parliament was
tackling in relation to lifestyle advertising. The express provision that
lifestyle advertising need only evoke an emotion or image may be seen as aimed
at precluding arguments that to constitute lifestyle advertising, there must be
a link, on the face of the advertisement, between the tobacco product and a way
of life. While advertising that associates a tobacco product with a way of
life will arguably evoke an emotion or an image, it is not clear that
advertising evoking an emotion or an image will invariably associate a tobacco
product with a lifestyle. A lifestyle image in an advertisement might be aimed
at evoking an emotion or image which subliminally evokes a particular tobacco product,
for example. Charged with an offence, the advertiser might raise the defence
that the advertisement did not “associate” the lifestyle with the product,
arguing that there is no evidence of a link between the product and the
lifestyle in the advertisement. The phrase “or evokes a positive or negative
emotion about or image of, a way of life” would defeat such an argument. It is
true that “associates” can be read as including even subliminal or subtle
influences. But it can also be read more narrowly. Expressly including
lifestyle advertising that evokes emotions and images makes it clear that even
advertising that does not appear on its face to connect a lifestyle with a
tobacco product is prohibited if it subliminally connects a tobacco product
with a lifestyle.
111
The phrase “evokes a positive or negative emotion or image”
should not, however, be read so broadly as to encompass every perceptual
impression. It should be interpreted in a way that leaves room for true
information and brand-preference advertising, which s. 22(2) permits. This
brings to mind the definition of brand-preference advertising used in RJR,
which was confined to existing smokers and restricted to the colour, design and
appearance of the packaging. It is possible to argue that a colour or image
evokes an emotion in some highly abstract, artistic sense. Parliament,
however, was concerned with emotions and images that may induce people to start
to use or to increase their use of tobacco. Parliament used these terms in the
context of its purpose — to prevent the increase of tobacco consumption through
advertising and to confine permissible advertising to hard, factual data
directed to confirmed smokers. The provision should be construed accordingly.
112
The reference to “positive or negative” emotion poses a further
difficulty. One would expect lifestyle advertising to evoke a positive emotion
about the lifestyle and the use of the product. However, it is not beyond the
ingenuity of advertisers to rely on negative emotions to subtly persuade. A
lifestyle depiction that sends messages of non-smokers being left out of the
crowd or being seen as unsophisticated comes to mind.
113
Finally, what is the effect of qualifying “way of life” in s.
22(3) with the words, “such as one that includes glamour, recreation,
excitement, vitality, risk or daring”? The words “such as” indicate that “way
of life” is not limited by the terms that follow. Rather, they are to be read
as illustrations of lifestyle advertising.
114
Read in this way, the prohibition on lifestyle advertising is
reasonable and demonstrably justified under s. 1 of the Charter . As
with the other challenged provisions, the pressing and substantial nature of
Parliament’s objective is beyond challenge. The record is replete with
examples of lifestyle advertisements promoting tobacco products. It amply
establishes the power of such advertisements to induce non-smokers to begin to
smoke and to increase tobacco consumption among addicted smokers. It also
establishes the sophistication and subtlety of such advertising. Lifestyle
advertising spans the spectrum from the bold association of the Marlboro man
with cowboy culture to the subtle suggestion emerging from a cup of coffee or a
bath scene that evokes tobacco use through learned prior imagery.
115
The sophistication and subtlety of lifestyle advertising are
reflected in the means Parliament has chosen to deal with it. A ban on
lifestyle advertising must catch not only clear associations, but subtle
subliminal evocations. Hence the inclusion of advertising that “evokes a
positive or negative emotion or image.” There is a rational connection between
this provision and Parliament’s objective. Minimal impairment is also
established. True information and brand-preference advertising continues to be
permitted under s. 22(2) . Such advertising crosses the line when it associates
a product with a way of life or uses a lifestyle to evoke an emotion or image
that may, by design or effect, lead more people to become addicted or lead
people who are already addicted to increase their tobacco use. Finally, the
proportionality of the effects is clear. The suppressed expression — the
inducement of increased tobacco consumption — is of low value, compared with
the significant benefits in lower rates of consumption and addiction that the
ban may yield.
116
The challenge of dealing with today’s sophisticated advertising
of tobacco products is not insignificant. The distinction between information
and brand-preference advertising directed to market share, on the one hand, and
advertising directed to increased consumption and new smokers, on the other, is
difficult to capture in legal terms. Parliament in its wisdom has chosen to
take the task on. Properly interpreted, the law it has adopted meets the
requirements of justification under s. 1 of the Charter .
5. Sponsorships
117
Tobacco manufacturers have a long tradition of sponsoring
sporting and cultural events and facilities as a means of promoting their
product and, they would argue, acting as good corporate citizens. Parliament,
in the Tobacco Act , has chosen to ban the promotion of these
sponsorships. The question is whether that ban is constitutional.
118
Section 24 of the Act bans the display of tobacco-related brand
elements or names in promotions that are used, directly or indirectly, in the
“sponsorship of a person, entity, event, activity or permanent facility”.
Section 25 goes further and prohibits the display of tobacco-related brand
elements or names on a permanent facility, if the brand elements or names are
thereby associated with a sports or cultural event or activity. Together,
these sections mean that tobacco manufacturers are not permitted to use their
brand elements or names to sponsor events, nor to put those brand elements or
names on sports or cultural facilities.
119
Two questions arise for consideration. The first is whether the
general ban on sponsorship is constitutional. Since it clearly limits freedom
of expression under s. 2 (b) of the Charter , the only issue
is whether it has been shown to be justified under s. 1 of the Charter .
120
The trial judge, Denis J., correctly held that sponsorship
promotion is essentially lifestyle advertising in disguise. If lifestyle
advertising is prohibited, sponsorship provides an alternative means for
tobacco companies to associate their products with glamour, recreation, etc.
The Court of Appeal unanimously upheld this conclusion, going so far as to state
that ss. 24 and 25 were possibly redundant as they are but particular
applications of the ban on lifestyle advertising.
121
The prohibition of sponsorship promotion is rationally connected
to the legislative goal for the same reasons as for the prohibition on
lifestyle advertising. Similarly, since the ban on lifestyle advertising is
accepted as minimally impairing, so is the ban on sponsorship. A finding of
minimal impairment is reinforced by the fact that Parliament phased in the ban
over five years so that it would not have a disruptive impact. I would also
note that, contrary to their assertions, the manufacturers are not prohibited
from sponsoring anything; they are only prohibited from using the fact of their
sponsorship to gain publicity.
122
The second question, the use of corporate names in sponsorship,
is more complicated. The majority of the Court of Appeal found that this ban
constituted an unjustified intrusion on free expression, and declared
inoperative the words “or the name of a tobacco manufacturer” in ss. 24 and 25 ,
thereby allowing the use of corporate names in sponsorship promotion and on
facilities, except if the corporate name refers, directly or indirectly, to a
tobacco brand name (Brossard and Rayle JJ.A.).
123
In the view of the majority, a corporate name in an event program
or on a building might not evoke or promote a product, raising concerns of
rational connection. (It may be noted that the final order entered is narrower
than the reasons for judgment and is confined to company names that are not
used as brand names.)
124
Beauregard J.A. dissented, arguing that the only reason a
corporation would affix its name to a building would be to evoke that brand or
name of the product, and that therefore the ban was justified.
125
I agree with Beauregard J.A. that the prohibition on using
corporate names in sponsorship promotion and on sports or cultural facilities
is justified.
126
Parliament’s objective, once again, is clearly pressing and
substantial. As found by Denis J., the evidence establishes that as
restrictions on tobacco advertising tightened, manufacturers increasingly
turned to sports and cultural sponsorship as a substitute form of lifestyle
promotion. Placing a tobacco manufacturer’s name on a facility is one form
such sponsorship takes. The prohibition on sponsorship by means of names on
facilities in s. 25 only applies to facilities used for sports or cultural
activities, not for all facilities. The aim of curbing such promotion justifies
imposing limits on free expression.
127
Nor is the means chosen to achieve the objective
disproportionate. The element of rational connection is made out. Placing a
corporate name on a list of sponsors or on a sports or cultural facility may
promote the use of tobacco in a number of ways. This is clear when the
corporate name is connected with the brand name of a tobacco product. (The
appellant argued that all the respondents have brand names that include
portions of their corporate names; the respondents did not contradict this.)
But even where there is no overt connection between the corporate name and the
brand name of a tobacco product, the corporate name may serve to promote the
sale of the tobacco product. Connections may be established in a variety of
ways. The corporate name may, without referencing a brand name, nevertheless
contain a reference to tobacco. Or the corporate name may have historically
been associated with tobacco. The evidence established the tobacco industry’s
practice of using shell corporations as an element in brand identification.
Associations between the parent company and the shell company may persist in
the public mind. As a result, the corporate name in the sponsorship promotion
or on the building or facility may evoke a connection with the shell company
and its brand.
128
Given the nature of the problem, and in view of the limited value
of the expression in issue compared with the beneficial effects of the ban, the
proposed solution — a total ban on the use of corporate names in sponsorship
promotion, or on sports or cultural facilities — is proportional. And in view
of the limited value of the expression in issue compared with the beneficial
effects of the ban, proportionality of effects is established.
129
I conclude that the impugned sponsorship provisions are a
reasonable limit justified under s. 1 of the Charter .
6. Health
Warning Labels
130
The regulations pursuant to the Act (the TPIR) increased
the minimum size of the mandatory health warnings on tobacco packaging from 33
percent under the old Act to 50 percent of the principal display surfaces. The
question is whether this constitutes an infringement of s. 2(b) and, if
so, whether that infringement is justified.
131
The question of whether the mandatory warning requirement
infringes s. 2 (b) is not easily answered. The Attorney General argues
that s. 2 (b) is not infringed, claiming that it neither deprives the
manufacturers of a vehicle for communicating their message, nor limits the form
of expression. He relies on Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211, at pp. 279-80, where Wilson J. stated: “If a
law does not really deprive one of the ability to speak one’s mind or does not
effectively associate one with a message with which one disagrees, it is
difficult to see how one’s right to pursue truth, participate in the community,
or fulfil oneself [the values protected by s. 2 (b)] are denied.” The
regulations under the TPIR permit the manufacturers to present the
health warnings, not as their messages, but as messages from Health Canada.
The manufacturers still have half the package to convey such messages as they
choose, and they are not confined to a particular size or style of package that
might inhibit that ability. As a result, the Attorney General argues, the
manufacturers have not shown that they are prevented from conveying messages of
their choice on their packaging. Not having discharged this burden, they have
not established a breach of their freedom of expression, he concludes.
132
However, this Court has taken a broad view of “expressive
activity” for s. 2 (b) cases. In Irwin Toy, the Court went so far
as to say that parking a car could be an expressive activity. In Reference
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R.
1123, at p. 1184, Lamer J. stated that in some circumstances, silence could
constitute expressive activity. To hold that minor restrictions or requirements
with respect to packaging violate the s. 2 (b) guarantee of freedom of
expression might be to trivialize the guarantee. However, the requirement that
manufacturers place the government’s warning on one half of the surface of
their package arguably rises to the level of interfering with how they choose
to express themselves. I therefore conclude that s. 2 (b) is infringed
by the warning requirements in general, and specifically the requirement that
50 percent of the principal display surfaces of the package be devoted to the
warnings.
133
This leaves the question of whether the infringement is justified
as a reasonable limit under s. 1 of the Charter . I conclude that
it is.
134
Parliament’s objective in requiring that a large part of
packaging be devoted to a warning is pressing and substantial. It is to inform
and remind potential purchasers of the product of the health hazards it
entails. This is designed to further Parliament’s larger goal of discouraging
tobacco consumption and preventing new smokers from taking up the habit. The
importance of warnings is reinforced by the trial judge’s finding that
consumers and the general public are not well informed on the dangers of
smoking.
135
The evidence as to the importance and effectiveness of such
warnings establishes a rational connection between Parliament’s requirement for
warnings and its objectives of reducing the incidence of smoking and of the
disease and death it causes. In the course of the previous proceedings dealing
with the ban on tobacco advertising, this Court unanimously held that “both
parties agree that past studies have shown that health warnings on tobacco
product packages do have some effects in terms of increasing public awareness
of the dangers of smoking and in reducing the overall incidence of smoking in
our society”: RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311, per Sopinka and Cory JJ., at p. 353; see also RJR,
McLachlin J., at para. 158. A mass of evidence in the intervening years
supports this conclusion.
136
If further evidence were required of the rationality of
Parliament’s requirement that warnings occupy 50 percent of product packaging,
it is supplied by the manufacturers’ response to the increase from 33 percent
to 50 percent of the principal display surfaces. The evidence reveals that
they saw the increase as a threat and sought to meet it by devising
counter-strategies to minimize the overall impact of the warnings.
137
Regarding minimal impairment, the question is whether the
requirement for warning labels, including their size, falls within a range of
reasonable alternatives. The manufacturers argue that the increase from 33
percent to 50 percent of the package cannot be justified. However, the
evidence established that bigger warnings may have a greater effect.
Parliament is not required to implement less effective alternatives: RJR,
at paras. 160 and 163.
138
The reasonableness of the government’s requirement is supported
by the fact that Australia, Belgium, Switzerland, Finland, Singapore and Brazil
require warnings at least as large as Canada’s, and the minimum size in the
European Union is 48 percent of the package. The WHO Framework
Convention stipulates that warning labels “should” cover at least 50
percent and “shall” cover at least 30 percent of the package.
139
Finally, proportionality of effects is established. The benefits
flowing from the larger warnings are clear. The detriments to the
manufacturers’ expressive interest in creative packaging are small.
140
I conclude that the requirement that 50 percent of the
principal display surfaces be devoted to a warning of the health hazards of the
product is a reasonable measure demonstrably justified in our society and is
constitutional under s. 1 of the Charter .
VI. Conclusion
141
I conclude that the impugned provisions of the Tobacco Act
and the Tobacco Products Information Regulations, properly interpreted,
are constitutional in their entirety. I would therefore allow the Attorney
General’s appeals, dismiss the manufacturers’ cross-appeals and restore the
order of the trial judge. Costs are awarded to the Attorney General of Canada
in this Court and in the Court of Appeal.
142
The constitutional questions are answered as follows:
1. Do ss. 18, 19, 20, 22, 24 and 25 of the Tobacco Act, S.C.
1997, c. 13 , in whole or in part or through their combined effect, infringe s.
2 (b) of the Canadian Charter of Rights and Freedoms ?
Answer: Yes.
2. If so, is the infringement a reasonable limit prescribed by law as
can be demonstrably justified in a free and democratic society under s. 1 of
the Canadian Charter of Rights and Freedoms ?
Answer: Yes.
3. Do the provisions of the Tobacco Products Information Regulations,
SOR/2000-272, governing the size of the mandatory messages infringe s. 2 (b)
of the Canadian Charter of Rights and Freedoms ?
Answer: Yes.
4. If so, is the infringement a reasonable limit prescribed by law as
can be demonstrably justified in a free and democratic society under s. 1 of
the Canadian Charter of Rights and Freedoms ?
Answer: Yes.
APPENDIX A
Tobacco Act, S.C. 1997, c. 13
[PURPOSE
Purpose of Act]
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.
[PART IV
PROMOTION
Definition of “promotion”]
18. (1) In this Part, “promotion”
means 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.
[Application]
(2) This Part does not apply to
(a) a literary, dramatic, musical, cinematographic,
scientific, educational or artistic work, production or performance that uses
or depicts a tobacco product or tobacco product‑related brand element,
whatever the mode or form of its expression, if no consideration is given
directly or indirectly for that use or depiction in the work, production or
performance;
(b) a report, commentary or opinion in respect of a tobacco
product or a brand of tobacco product if no consideration is given by a
manufacturer or retailer, directly or indirectly, for the reference to the
tobacco product or brand in that report, commentary or opinion; or
(c) a promotion by a tobacco grower or a manufacturer that
is directed at tobacco growers, manufacturers, persons who distribute tobacco
products or retailers but not, either directly or indirectly, at consumers.
[Prohibition]
19. No person shall promote a tobacco
product or a tobacco product‑related brand element except as authorized
by this Act or the regulations.
[False promotion]
20. No person shall promote a tobacco
product by any means, including by means of the packaging, that are false,
misleading or deceptive or that are likely to create an erroneous impression
about the characteristics, health effects or health hazards of the tobacco
product or its emissions.
[Testimonials or endorsements]
21. (1) No person shall promote a
tobacco product by means of a testimonial or an endorsement, however
displayed or communicated.
[Depiction of person]
(2) For the purposes of subsection (1), the depiction of a person,
character or animal, whether real or fictional, is considered to be a
testimonial for, or an endorsement of, the product.
[Exception]
(3) This section does not apply to a trade‑mark that
appeared on a tobacco product for sale in Canada on December 2, 1996.
[Advertising]
22. (1) Subject to this section, no
person shall promote a tobacco product by means of an advertisement that
depicts, in whole or in part, a tobacco product, its package or a brand
element of one or that evokes a tobacco product or a brand element.
[Exception]
(2) Subject to the regulations, a person may advertise a tobacco
product by means of information advertising or brand‑preference
advertising that is in
(a) a publication that is provided by mail and addressed to
an adult who is identified by name;
(b) a publication that has an adult readership of not less
than eighty‑five per cent; or
(c) signs in a place where young persons are not permitted
by law.
[Lifestyle advertising]
(3) Subsection (2) does not apply to lifestyle advertising or
advertising that could be construed on reasonable grounds to be appealing to
young persons.
[Definitions]
(4) The
definitions in this subsection apply in this section.
[“brand‑preference advertising”
« publicité préférentielle » ]
“brand‑preference
advertising” means advertising that promotes a tobacco product by means of
its brand characteristics.
[“information
advertising”
« publicité
informative »]
“information
advertising” means advertising that provides factual information to the
consumer about
(a) a
product and its characteristics; or
(b)
the availability or price of a product or brand of product.
[“lifestyle advertising”
« publicité de style de vie »]
“lifestyle
advertising” means advertising that associates a product with, or evokes a
positive or negative emotion about or image of, a way of life such as one
that includes glamour, recreation, excitement, vitality, risk or daring.
[Packaging]
23. No
person shall package a tobacco product in a manner that is contrary to this
Act or the regulations.
[Prohibition
— sponsorship promotion]
24. No
person may display a tobacco product‑related brand element or the name
of a tobacco manufacturer in a promotion that is used, directly or
indirectly, in the sponsorship of a person, entity, event, activity or
permanent facility.
[Prohibition
— name of facility]
25.
No person may display a tobacco product‑related brand element or the
name of a tobacco manufacturer on a permanent facility, as part of the name
of the facility or otherwise, if the tobacco product‑related brand
element or name is thereby associated with a sports or cultural event or
activity.
[Accessories]
26.
(1) Subject to the regulations, a manufacturer or retailer may sell an
accessory that displays a tobacco product‑related brand element.
[Promotion]
(2) No
person shall promote an accessory that displays a tobacco product‑related
brand element except in the prescribed manner and form and in a publication
or place described in paragraphs 22(2) (a) to (c).
[Non‑tobacco
product displaying tobacco brand element]
27. No
person shall furnish or promote a tobacco product if any of its brand
elements is displayed on a non‑tobacco product, other than an
accessory, or is used with a service, if the non‑tobacco product or
service
(a)
is associated with young persons or could be construed on reasonable grounds
to be appealing to young persons; or
(b)
is associated with a way of life such as one that includes glamour,
recreation, excitement, vitality, risk or daring.
[Exception —
tobacco product]
28.
(1) Subject to the regulations, a person may sell a tobacco product, or
advertise a tobacco product in accordance with section 22, if any of its
brand elements is displayed on a non‑tobacco product, other than an
accessory, or used with a service, if the non‑tobacco product or
service does not fall within the criteria described in paragraphs 27 (a)
and (b).
[Exception —
non‑tobacco product]
(2) Subject
to the regulations, a person may promote a non‑tobacco product, other
than an accessory, that displays a tobacco product‑related brand
element, or a service that uses a tobacco product‑related brand
element, to which section 27 does not apply.
[Sales
promotions]
29.
No manufacturer or retailer shall
(a)
offer or provide any consideration, direct or indirect, for the purchase of a
tobacco product, including a gift to a purchaser or a third party, bonus,
premium, cash rebate or right to participate in a game, lottery or contest;
(b)
furnish a tobacco product without monetary consideration or in consideration
of the purchase of a product or service or the performance of a service; or
(c)
furnish an accessory that bears a tobacco product‑related brand element
without monetary consideration or in consideration of the purchase of a
product or service or the performance of a service.
[Retail
display of tobacco products]
30.
(1) Subject to the regulations, any person may display, at retail, a tobacco
product or an accessory that displays a tobacco product‑related brand
element.
[Signs]
(2) A
retailer of tobacco products may post, in accordance with the regulations,
signs at retail that indicate the availability of tobacco products and their
price.
[Communication
media]
31. (1)
No person shall, on behalf of another person, with or without consideration,
publish, broadcast or otherwise disseminate any promotion that is prohibited
by this Part.
[Exception]
(2)
Subsection (1) does not apply to the distribution for sale of an imported
publication or the retransmission of radio or television broadcasts that
originate outside Canada.
[Foreign
media]
(3) No
person in Canada shall, by means of a publication that is published outside
Canada, a broadcast that originates outside Canada or any communication other
than a publication or broadcast that originates outside Canada, promote any
product the promotion of which is regulated under this Part, or disseminate
promotional material that contains a tobacco product‑related brand
element in a way that is contrary to this Part.
[Report to
Minister]
32.
Every manufacturer shall provide the Minister, in the prescribed manner and
within the prescribed time, with the prescribed information about any
promotion under this Part.
|
|
Loi sur
le tabac, L.C. 1997, ch. 13
[OBJET
Santé
publique]
4. La
présente loi a pour objet de s’attaquer, sur le plan législatif, à un
problème qui, dans le domaine de la santé publique, est grave et d’envergure
nationale et, plus particulièrement :
a) de
protéger la santé des Canadiennes et des Canadiens compte tenu des preuves
établissant, de façon indiscutable, un lien entre l’usage du tabac et de
nombreuses maladies débilitantes ou mortelles;
b) de
préserver notamment les jeunes des incitations à l’usage du tabac et du
tabagisme qui peut en résulter;
c) de
protéger la santé des jeunes par la limitation de l’accès au tabac;
d) de
mieux sensibiliser la population aux dangers que l’usage du tabac présente
pour la santé.
[PARTIE IV
PROMOTION
Définition
de « promotion »]
18.
(1) Dans la présente partie, « promotion » s’entend de la présentation,
par tout moyen, d’un produit ou d’un service — y compris la communication de
renseignements sur son prix ou sa distribution—,directement ou indirectement,
susceptible d’influencer et de créer des attitudes, croyances ou
comportements au sujet de ce produit ou service.
[Application]
(2) La
présente partie ne s’applique pas :
a)
aux œuvres littéraires, dramatiques, musicales, cinématographiques,
artistiques, scientifiques ou éducatives — quels qu’en soient le mode ou la
forme d’expression — sur ou dans lesquelles figure un produit du tabac ou un
élément de marque d’un produit du tabac, sauf si un fabricant ou un
détaillant a donné une contrepartie, directement ou indirectement, pour la
représentation du produit ou de l’élément de marque dans ces œuvres;
b)
aux comptes rendus, commentaires et opinions portant sur un produit du tabac
ou une marque d’un produit du tabac et relativement à ce produit ou à cette
marque, sauf si un fabricant ou un détaillant a donné une contrepartie,
directement ou indirectement, pour la mention du produit ou de la marque;
c)
aux promotions faites par un tabaculteur ou un fabricant auprès des
tabaculteurs, des fabricants, des personnes qui distribuent des produits du
tabac ou des détaillants, mais non directement ou indirectement auprès des
consommateurs.
[Interdiction]
19.
Il est interdit de faire la promotion d’un produit du tabac ou d’un élément
de marque d’un produit du tabac, sauf dans la mesure où elle est autorisée
par la présente loi ou ses règlements.
[Promotion
trompeuse]
20.
Il est interdit de faire la promotion d’un produit du tabac, y compris sur
l’emballage de celui‑ci, d’une manière fausse ou trompeuse ou
susceptible de créer une fausse impression sur les caractéristiques, les
effets sur la santé ou les dangers pour celle‑ci du produit ou de ses
émissions.
[Attestations
et témoignages]
21.
(1) Il est interdit de faire la promotion d’un produit du tabac, y compris
sur l’emballage de celui‑ci, au moyen d’attestations ou de témoignages,
quelle que soit la façon dont ils sont exposés ou communiqués.
[Représentation]
(2) Pour
l’application du paragraphe (1), la représentation d’une personne, d’un
personnage ou d’un animal, réel ou fictif, est considérée comme une
attestation ou un témoignage.
[Exception]
(3) Le
présent article ne s’applique pas aux marques de commerce qui figurent sur un
produit du tabac en vente au Canada le 2 décembre 1996.
[Publicité]
22.
(1) Il est interdit, sous réserve des autres dispositions du présent article,
de faire la promotion d’un produit du tabac par des annonces qui représentent
tout ou partie d’un produit du tabac, de l’emballage de celui‑ci ou
d’un élément de marque d’un produit du tabac, ou qui évoquent le produit du
tabac ou un élément de marque d’un produit du tabac.
[Exception]
(2) Il est
possible, sous réserve des règlements, de faire la publicité — publicité
informative ou préférentielle — d’un produit du tabac :
a)
dans les publications qui sont expédiées par le courrier et qui sont
adressées à un adulte désigné par son nom;
b)
dans les publications dont au moins quatre‑vingt‑cinq pour cent
des lecteurs sont des adultes;
c)
sur des affiches placées dans des endroits dont l’accès est interdit aux
jeunes par la loi.
[Publicité
de style de vie]
(3) Le
paragraphe (2) ne s’applique pas à la publicité de style de vie ou à la
publicité dont il existe des motifs raisonnables de croire qu’elle pourrait
être attrayante pour les jeunes.
[Définitions]
(4) Les
définitions qui suivent s’appliquent au présent article.
[« publicité
de style de vie »
“lifestyle
advertising” ]
« publicité
de style de vie » Publicité qui associe un produit avec une façon de vivre,
tels le prestige, les loisirs, l’enthousiasme, la vitalité, le risque ou
l’audace ou qui évoque une émotion ou une image, positive ou négative, au
sujet d’une telle façon de vivre.
[« publicité
informative »
“information
advertising”]
« publicité
informative » Publicité qui donne au consommateur des renseignements factuels
et qui porte :
a)
sur un produit ou ses caractéristiques;
b)
sur la possibilité de se procurer un produit ou une marque d’un produit ou
sur le prix du produit ou de la marque.
[« publicité
préférentielle »
“brand‑preference
advertising”]
« publicité
préférentielle » Publicité qui fait la promotion d’un produit du tabac en se
fondant sur les caractéristiques de sa marque.
[Emballage]
23.
Il est interdit d’emballer un produit du tabac d’une manière non conforme à
la présente loi et aux règlements.
[Interdiction
— promotion de commandite]
24.
Il est interdit d’utiliser, directement ou indirectement, un élément de
marque d’un produit du tabac ou le nom d’un fabricant sur le matériel relatif
à la promotion d’une personne, d’une entité, d’une manifestation, d’une
activité ou d’installations permanentes.
[Interdiction
— élément ou nom figurant dans la dénomination]
25.
Il est interdit d’utiliser un élément de marque d’un produit du tabac ou le
nom d’un fabricant sur des installations permanentes, notamment dans la
dénomination de celles‑ci, si l’élément ou le nom est de ce fait
associé à une manifestation ou activité sportive ou culturelle.
[Accessoires]
26. (1)
Sous réserve des règlements, le fabricant ou le détaillant peut vendre, à
titre onéreux, un accessoire sur lequel figure un élément de marque d’un
produit du tabac.
[Promotion]
(2) Il est
interdit de faire la promotion d’accessoires sur lesquels figure un élément
de marque d’un produit du tabac sauf selon les modalités réglementaires et
dans les publications ou les endroits mentionnés aux alinéas 22(2) a) à
c).
[Articles
associés aux jeunes ou à un style de vie]
27.
Il est interdit de fournir ou de promouvoir un produit du tabac si l’un de
ses éléments de marque figure sur des articles autres que des produits du
tabac — à l’exception des accessoires — ou est utilisé pour des services et
que ces articles ou ces services :
a)
soit sont associés aux jeunes ou dont il existe des motifs raisonnables de
croire qu’ils pourraient être attrayants pour les jeunes;
b)
soit sont associés avec une façon de vivre, tels le prestige, les loisirs,
l’enthousiasme, la vitalité, le risque ou l’audace.
[Autres
articles]
28.
(1) Sous réserve des règlements, il est possible de vendre un produit du
tabac ou d’en faire la publicité conformément à l’article 22 dans les cas où
l’un de ses éléments de marque figure sur des articles autres que des
produits du tabac — à l’exception des accessoires — ou est utilisé pour des services
qui ne sont pas visés par les alinéas 27a) ou b).
[Promotion]
(2) Sous
réserve des règlements, il est possible de promouvoir des articles autres que
des produits du tabac — à l’exception des accessoires — portant un élément de
marque d’un produit du tabac ou des services utilisant un tel élément qui ne
sont pas visés à l’article 27 .
[Promotion
des ventes]
29.
Il est interdit au fabricant et au détaillant
a)
d’offrir ou de donner, directement ou indirectement, une contrepartie pour l’achat
d’un produit du tabac, notamment un cadeau à l’acheteur ou à un tiers, une
prime, un rabais ou le droit de participer à un tirage, à une loterie ou à un
concours;
b) de
fournir un produit du tabac à titre gratuit ou en contrepartie de l’achat d’un
produit ou d’un service ou de la prestation d’un service;
c) de
fournir un accessoire sur lequel figure un élément de marque d’un produit du
tabac à titre gratuit ou en contrepartie de l’achat d’un produit ou d’un
service ou de la prestation d’un service.
[Autorisation]
30.
(1) Sous réserve des règlements, il est possible, dans un établissement de
vente au détail, d’exposer des produits du tabac et des accessoires portant
un élément de marque d’un produit du tabac.
[Affiches]
(2) Il est
possible pour un détaillant, sous réserve des règlements, de signaler dans
son établissement que des produits du tabac y sont vendus et d’indiquer leurs
prix.
[Médias]
31.
(1) Il est interdit, à titre gratuit ou onéreux et pour le compte d’une autre
personne, de diffuser, notamment par la presse ou la radio‑télévision,
toute promotion interdite par la présente partie.
[Exception]
(2) Le
paragraphe (1) ne s’applique pas à la distribution en vue de la vente de
publications importées au Canada ou à la retransmission d’émissions de radio
ou de télévision de l’étranger.
[Usage des
médias étrangers]
(3) Il est
interdit à toute personne se trouvant au Canada de faire la promotion, dans
une publication ou une émission provenant de l’étranger ou dans une
communication, autre qu’une publication ou une émission, provenant de
l’étranger, d’un produit à la promotion duquel s’applique la présente partie
ou de diffuser du matériel relatif à une promotion contenant un élément de
marque d’un produit du tabac d’une manière non conforme à la présente partie.
[Renseignements]
32.
Le fabricant est tenu de transmettre au ministre les renseignements exigés
par les règlements, dans les délais et selon les modalités réglementaires,
sur les promotions visées par la présente partie.
|
|
|
|
APPENDIX B
Tobacco Products Information Regulations,
SOR/2000-272
[Application]
[Retail sale]
2. These Regulations
apply to tobacco products that are for retail sale in Canada.
[General]
[Must be legible]
3. (1)
Any written information that is required by these Regulations to be
displayed shall be displayed
(a) in both official
languages, in the same manner; and
(b) in a manner that ensures that the
information is legible and prominently displayed.
[Health warnings and health information]
(2) Health warnings and health
information shall
(a) except for those set out in subsections
5(4) to (6), be obtained from the Minister and reproduced from electronic
images obtained from the electronic files used by the Minister to generate the
source document; and
(b) be adapted to meet
the requirements of paragraph 5(2)(b).
[Colour and clarity]
(3) All health warnings and
health information shall be reproduced
(a) in a colour that is as close as possible
to the colour in which they are set out in the source document; and
(b) as clearly as possible taking into
consideration the method of printing used by the manufacturer.
[Attribution]
4. (1)
If a manufacturer attributes information that, in accordance with these
Regulations, must be displayed, the manufacturer shall do so by displaying only
the following under the information, in the same colour as the text of the
information and in Universal type in a pitch that is not greater than the
smallest pitch used in the attributed information:
(a) if the information is
in English, the phrase “Health Canada”; and
(b) if the information is
in French, the phrase “Santé Canada”.
[Removal of attribution]
(2) Every manufacturer that does
not attribute a health warning or health information may remove the attribution
contained in the electronic files obtained under paragraph 3(2)(a).
[Health warnings]
[Obligation to display]
5. (1)
Subject to subsections (4) to (6), every manufacturer of bidis, cigarettes,
cigarette tobacco, kreteks, leaf tobacco, chewing tobacco, snuff, tobacco
stricks, or pipe tobacco, other than pipe tobacco described in section (6),
shall display the applicable health warnings for the tobacco product on every
package of the tobacco product that they manufacture, in accordance with this
section.
[Manner of display]
(2) The health warnings must
(a) be displayed in English on one principal
display surface and in French on the other principal display surface;
(b) occupy at least 50% of the principal
display surfaces and be positioned parallel to the top edge of the package,
towards the top part of the package as much as possible while satisfying the
requirements of paragraph (c), and in the same direction as the other
information that is on the package; and
(c) be displayed on a principal display
surface in a manner that ensures that none of the words of the warning will be
severed when the package is opened; and
(d) be selected, except in the case of bidis,
chewing tobacco and snuff, from the formats provided by the Minister for each
health warning and based on the shape of the space as determined in accordance
with paragraph (b).
Appeals allowed and cross‑appeals dismissed,
with costs.
Solicitor for the appellant/respondent on cross‑appeal: Attorney
General of Canada, Montréal.
Solicitors for the respondent/appellant on cross‑appeal
JTI‑Macdonald Corp.: Irving Mitchell Kalichman, Westmount.
Solicitors for the respondent/appellant on cross‑appeal
Rothmans, Benson & Hedges Inc.: McCarthy Tétrault, Montréal.
Solicitors for the respondent/appellant on cross‑appeal
Imperial Tobacco Canada Ltd.: Ogilvy Renault, Montréal.
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
New Brunswick: Attorney General of New Brunswick, Fredericton.
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
for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitors for the intervener the Canadian Cancer
Society: Fasken Martineau DuMoulin, Montréal.