[1995] 3 S.C.R. |
RJR-MacDonald Inc. v. Canada (Attorney General) |
199 |
v.
and
v.
and
and
the Heart and Stroke Foundation of Canada,
the Canadian Cancer Society,
the Canadian Council on Smoking and Health,
the Canadian Medical Association, and
the Canadian Lung Association Interveners
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
The Tobacco Products Control Act (the "Act") broadly prohibited (with specified exceptions) all advertising and promotion of tobacco products and the sale of a tobacco product unless its package includes prescribed unattributed health warnings and a list of toxic constituents. The legislative scheme targeted three distinct categories of commercial activity: advertising, promotion and labelling. The Act, except for a prohibition on the distribution of free samples of tobacco products, did not proscribe the sale, distribution or use of tobacco products.
These proceedings began with two separate motions for declaratory judgments before the Quebec Superior Court. The appellant RJR-MacDonald Inc. sought a declaration that the Act was wholly ultra vires Parliament and invalid as an unjustified infringement of freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The appellant Imperial Tobacco Ltd. sought the same order, but only in respect of ss. 4 and 5 (advertisement of tobacco products), and ss. 6 and 8 (promotion of tobacco products). The two motions were heard together in the Quebec Superior Court which declared the whole of the Act ultra vires the Parliament of Canada and as well found it to be of no force or effect as an unjustified infringement of s. 2(b) of the Charter. The Quebec Court of Appeal reversed this judgment. The constitutional questions considered by this Court queried: (1) whether Parliament had legislative competence to enact the Act under either the peace, order and good government of Canada clause or the criminal law power, and (2) whether the Act infringed the right to freedom of expression protected by s. 2(b) of the Charter and, if so, whether it was saved under s. 1.
Held (La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. dissenting): The appeals should be allowed. The first constitutional question dealing with the legislative competence of Parliament to enact the legislation under the criminal law power or for the peace, order and good government of Canada should be answered in the positive. With respect to the second constitutional question, ss. 4 (re advertising), 8 (re trade mark use) and 9 (re unattributed health warnings) of the Act are inconsistent with the right of freedom of expression as set out is 2(b) of the Charter and do not constitute a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof. La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. would find that they constitute a reasonable limit. Given that ss. 5 (re retail displays) and 6 (re sponsorships) could not be cleanly severed from ss. 4, 8 and 9, all are of no force or effect pursuant to s. 52 of the Constitution Act, 1982.
Division of Powers
(i) Criminal Law Power
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ. (Sopinka and Major JJ. dissenting): The legislation was validly enacted under the criminal law power.
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ.: The legislation was validly enacted under the criminal law power, and it was accordingly unnecessary to consider whether it fell under the peace, order and good government clause. The criminal law power is plenary in nature, defined broadly, and not frozen in time or confined to a fixed domain of activity. The legislation must not, however, be colourable; some legitimate public purpose must underlie the prohibition.
The Tobacco Products Control Act is, in pith and substance, criminal law. Parliament's purpose was to prohibit three categories of acts: advertisement of tobacco products (ss. 4 and 5), promotion of tobacco products (ss. 6 to 8) and sale of tobacco products without printed health warnings (s. 9). The penal sanctions accompanying these prohibitions created a prima facie indication that the Act was criminal law. The Act also has an underlying criminal public purpose directed at some injurious effect upon the public -- the detrimental health effects caused by tobacco consumption which were clearly demonstrated by the attorney general at trial.
"Health" is not an enumerated head under the Constitution Act, 1867, and may be dealt with by valid federal or provincial legislation depending on the circumstances and nature and scope of the problem in question. The protection of health is one of the ordinary ends of the federal criminal law power. The scope of that power includes, for example, the right to legislate with respect to dangerous goods, including health warnings on dangerous goods. This legislation was not colourable. Its purpose is to protect Canadians against the serious health hazards that flow from the consumption of tobacco. Parliament's decision to criminalize tobacco advertisement and promotion is a valid exercise of the criminal law power. The Act has the requisite "criminal public purpose" even though Parliament has not criminalized the "evil" ultimately aimed at but rather an activity ancillary to the "evil". A prohibition upon the sale or consumption of tobacco is not now a practical policy option, given the addictive nature of tobacco products, and the large number of Canadians who smoke. It would be absurd to limit Parliament's power to legislate in this emerging area of public concern simply because it cannot as a practical matter impose a prohibition more specifically aimed at the evil. The constitutionality of such legislation has recently been upheld in other cases.
The legislation, while not serving a "public purpose commonly recognized as being criminal in nature", is nevertheless a valid exercise of the criminal law power. The definition of the criminal law is not "frozen as of some particular time" and the criminal law power includes the power to create new crimes. The existence of exemptions within the legislation does not transform it from criminal to regulatory legislation. Broad status-based exemptions to criminal legislation do not detract from the legislation's criminal nature; they help define the crime by clarifying its contours.
Per McLachlin J.: Parliament may impose advertising bans and require health warnings on tobacco products under its criminal law power.
Per Sopinka and Major JJ.: Section 9 of the Tobacco Products Control Act falls within Parliament's power under s. 91(27) of the Constitution Act, 1867, but ss. 4, 5, 6, and 8 which prohibit all advertising and promotion of tobacco products and restrict the use of tobacco trademarks, do not. The criminal law power encompasses the right to legislate against dangerous foods and drugs, including tobacco products. Manufacturers of tobacco products are under a duty to disclose and warn of the dangers inherent in the consumption of tobacco products and failure to do so can validly constitute a crime.
The prohibition of conduct which interferes with the proper functioning of society or which undermines the safety and security of society as a whole lies at the heart of the criminal law. Matters posing a significant and serious risk of harm or causing significant and serious harm to public health, safety or security can be proscribed by Parliament as criminal. Lesser threats to society and its functioning are addressed through non-criminal regulation.
Care must be taken not to overstate the objective because its importance may be exaggerated and the analysis compromised. The objective of the advertising ban and trade mark usage restrictions is to prevent Canadians from being persuaded by advertising and promotion to use tobacco products.
The undesirability of this form of expression does not pose such a grave and serious danger to public health as to make it criminal. The Act lacked a typically criminal public purpose and is too far removed from the injurious or undesirable effects of tobacco use to constitute a valid exercise of the criminal law power. Those areas where ancillary activities have been criminalized, rather than the core activity itself, concern matters which have traditionally been subject to criminal sanctions and pose significant and serious dangers in and of themselves. Parliament could have criminalized tobacco use but chose not to.
Broad-based exemptions are a factor which may lead a court to conclude that the proscribed conduct is not truly criminal. The prohibitions on advertising cannot be upheld as a valid exercise of the criminal law power given the broad-based exemptions allowing for tobacco advertising in imported publications and given that the Act does not engage a typically criminal public purpose.
Charter Issues
(i) Infringement
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The impugned sections infringed freedom of expression guaranteed in s. 2(b) of the Charter.
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The prohibition on advertising and promotion under the Act infringed appellants' right to freedom of expression under s. 2(b) of the Charter.
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: The prohibition on advertising and promotion of tobacco products violated the right to free expression. Since freedom of expression necessarily entails the right to say nothing or the right not to say certain things, the requirement that tobacco manufacturers place an unattributed health warning on tobacco packages combined with the prohibition against displaying any writing on their packaging other than the name, brand name, trade mark, and other information required by legislation too infringed this right. Section 7, which prohibits the free distribution of any tobacco product in any form, is closely connected to the law's objective and should stand.
(ii) Section 1 Analysis
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: The impugned sections were not justified under s. 1 of the Charter. La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. (dissenting) 1 would have found the impugned sections justified and therefore saved under s. 1.
Per Sopinka, McLachlin and Major JJ.: The appropriate test in a s. 1 analysis is that found in s. 1 itself: whether the infringement is reasonable and demonstrably justified in a free and democratic society. No conflict exists between the words of s. 1 and the jurisprudence founded upon Oakes. The word "demonstrably" in s. 1 is critical: the process is neither one of mere intuition nor of deference to Parliament's choice. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that, before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement.
Context, deference and a flexible and realistic standard of proof are essential aspects of the s. 1 analysis. The Oakes test must be applied flexibly, having regard to the factual and social context of each case. This contextual approach does not reduce the obligation on the state to demonstrate that the limitation on rights imposed by the law is reasonable and justified. The deference accorded to Parliament may vary with the social context but must not be carried to the point of relieving the government of its Charter-based burden of demonstrating the limits it has imposed on guaranteed rights to be reasonable and justifiable. To do so would diminish the role of the courts in the constitutional process and weaken the structure of rights. The civil standard of proof on a balance of probabilities at all stages of the proportionality analysis is more appropriate.
Courts of appeal, as a general rule, decline to interfere with findings of fact by a trial judge unless they are unsupported by the evidence or based on clear error. In the context of the s. 1 analysis, more deference may be required where findings are based on evidence of a purely factual nature whereas a lesser degree of deference may be required where the trial judge has considered social science and other policy-oriented evidence. Appellate courts generally are not as constrained by the trial judge's findings in the context of the s. 1 analysis as they are in the course of non-constitutional litigation because the impact of the infringement on constitutional rights must often be assessed by reference to a broad review of social, economic and political factors in addition to scientific facts.
The objective should not be overstated. The objective relevant to the s. 1 analysis is that of the infringing measure, since only the infringing measure must be justified. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised. The objective of the impugned measures, however, is somewhat narrower than the objectives of the wider legislative and policy scheme in which the Act is found. The advertising ban and trade mark usage restrictions are to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products. The mandatory package warning is to discourage people who see the package from tobacco use. Both constitute important objectives. The critical question, however, is not the evil tobacco works generally in our society, but the evil which the legislation addresses.
The extent to which this Court should defer to the trial judge's findings depends on whether the findings relate to purely factual matters or whether they relate to complex social science evidence from which it is difficult to draw firm factual and scientific conclusions. Less deference should be accorded to the trial judge's finding that the complete ban on advertising was not rationally connected to the aim of reducing advertising-induced consumption. Much of the evidence adduced on this point was social science evidence predictive of human behaviour from which it was difficult to draw firm factual conclusions.
The impugned provisions mandating a complete ban and unattributed package warnings do not minimally impair the right to free expression. Under the minimal impairment analysis, the trial judge did not rely on problematic social science data, but on the fact that the government had adduced no evidence to show that less intrusive regulation would not achieve its goals as effectively as an outright ban. Nor had the government adduced evidence to show that attributed health warnings would not be as effective as unattributed warnings on tobacco packaging.
The causal relationship between the infringement of rights and the benefit sought may sometimes be proved by scientific evidence showing that as a matter of repeated observation, one affects the other. Where, however, legislation is directed at changing human behaviour, as in the case of the Tobacco Products Control Act, the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective. Here, no direct evidence of a scientific nature showed a causal link between advertising bans and decrease in tobacco consumption. A link, established on a balance of probabilities and based on reason, existed between certain forms of advertising, warnings and tobacco consumption. No causal connection existed however, whether based on direct evidence or logic and reason, between the objective of decreasing tobacco consumption and s. 8's absolute prohibition on the use of a tobacco trade mark on articles other than tobacco products. Section 8 failed the rational connection test.
A complete ban on a form of expression is more difficult to justify than a partial ban. The government must show that only a full prohibition will enable it to achieve its objective. Where, as here, no evidence is adduced to show that a partial ban would be less effective than a total ban, the justification required by s. 1 to save the violation of free speech is not established.
As a matter of reason and logic, lifestyle advertising is designed to increase consumption. Purely informational or brand preference advertising, however, has not been shown to have this effect. Several less intrusive alternative measures would be a reasonable impairment of the right to free expression, given the important objective and the legislative context.
Allowing Parliament to choose such measures as it sees fit by contrasting the importance of Parliament's objective with the low value of the expression at issue raises a number of concerns. First, to argue that the importance of the legislative objective justifies more deference to the government at the stage of evaluating minimal impairment, is to engage in the balancing between objective and deleterious effect contemplated by the third stage of the proportionality analysis in Oakes. Second, just as care must be taken not to overvalue the legislative objective beyond its actual parameters, so care must be taken not to undervalue the expression at issue. Third, a great deal of reliance is placed on the fact that the appellants are motivated by profit. Motivation to profit is irrelevant to the determination of whether the government has established that the law is reasonable or justified as an infringement of freedom of expression.
The requirement that the warning be unattributed pursuant to s. 9 of the Act fails to meet the minimum impairment requirement of proportionality. The government is clearly justified in requiring the appellants to place warnings on tobacco packaging. For the reasons given with respect to the advertising ban, a lower level of constitutional scrutiny is not justified in deciding whether it was necessary to prohibit the appellants from attributing the message to the government and whether it was necessary to prevent the appellants from placing on their packaging any information other than that allowed by the regulations.
Per Lamer C.J. and Iacobucci J.: The Tobacco Products Control Act did not minimally impair the appellants' s. 2(b) Charter rights. An attenuated minimal impairment analysis could unduly dilute the s. 1 principles as originally cast in Oakes and related cases creating the risk that Charter violations would be too easily justified, with the result that Charter values would be too easily undercut.
The Act was rationally connected to its goal of protecting Canadians from the health risks associated with tobacco use. Rational connection is to be established, upon a civil standard, through reason, logic or common sense. The existence of scientific proof is simply of probative value in demonstrating this reason, logic or common sense but is by no means dispositive or determinative. The Act, however, was not "social engineering". Agreement was expressed with the approach described by La Forest J. relative to appellate court intervention on legislative or social facts found by a trial judge.
Minimal impairment analysis requires consideration of whether or not the legislature turned its mind to alternative and less rights-impairing means to promote its legislative goal. Here, evidence related to the options considered as alternatives to the total ban was withheld from the factual record. In cases like these involving wide public interest constitutional litigation, government should remain non-adversarial and make full disclosure. The total prohibition on advertising (the full rights-impairing option) is only constitutionally acceptable if information is provided that such a total prohibition is necessary in order for the legislation to achieve a pressing and substantial goal. When the evidence is unclear whether a partial prohibition is as effective as a full prohibition, the Charter requires that the legislature enact the partial denial of the implicated Charter right. The tailoring required to meet minimal impairment was not significant and yet very necessary to the Act's being constitutional.
Section 9 of the Act, requiring the placing of unattributed health warnings, infringed s. 2(b) and was unjustifiable under s. 1 for the reasons of McLachlin J. Sections 4, 5, 6 and 8 should also be struck. Proof might exist for this total and absolute ban on advertising, but without it, there is no justifiable basis for this ban.
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The infringement was justifiable under s. 1. Protecting Canadians from the health risks associated with tobacco use, and informing them about these risks, is a pressing and substantial objective. It meets the two broad criteria set forth in Oakes. First, its objective is of sufficient importance to override a guaranteed right. Second, it meets the proportionality requirements established in Oakes. These requirements are not synonymous with nor have they been superseded by those set forth in s. 1 of the Charter. The appropriate "test" is that found in s. 1 itself. The courts are to determine whether an infringement is reasonable and can be demonstrably justified in a "free and democratic society" and must strike a delicate balance between individual rights and community needs. This balance cannot be achieved in the abstract, with reference solely to a formalistic "test" uniformly applicable in all circumstances. The section 1 inquiry is an unavoidably normative inquiry, requiring the courts to take into account both the nature of the infringed right and the specific values and principles upon which the state seeks to justify the infringement. An important "synergetic relation" exists between Charter rights and the context in which they are claimed. The Oakes requirements therefore must be applied flexibly, having regard to the specific factual and social context of each case. A rigid or formalistic approach should be avoided in order to overcome the risk of losing sight of this relation.
The evidentiary requirements under s. 1 vary substantially depending upon both the nature of the legislation and the nature of the right infringed. Here, both these contextual elements were highly relevant to a proper application of the s. 1 analysis. The application of a "rigorous" civil standard of proof below resulted in a failure to take into account the specific context in which the s. 1 balancing must take place.
The nature and scope of the health problems raised by tobacco consumption are highly relevant to the s. 1 analysis, both in determining the appropriate standard of justification and in weighing the relevant evidence. Despite the lack of definitive scientific explanations of the causes of tobacco addiction, clear evidence does exist of the detrimental social effects of tobacco consumption. Overwhelming evidence was introduced at trial that tobacco consumption is a principal cause of deadly cancers, heart disease and lung disease, and that tobacco is highly addictive. The most distressing aspect of the evidence is that tobacco consumption is most widespread among the most vulnerable, the young and the less educated, at whom much of the advertising is specifically directed.
The significant gap between an understanding of the health effects of tobacco consumption and of the root causes of tobacco consumption raises a fundamental institutional problem that must be taken into account in undertaking the s. 1 balancing. Strictly applying the proportionality analysis in cases of this nature would place an impossible onus on Parliament by requiring it to produce definitive social scientific evidence respecting the root causes of a pressing area of social concern whenever Parliament wished to address its effects. This would have the effect of virtually paralyzing the operation of government in the socio-economic sphere. To require Parliament to await definitive social science conclusions whenever it wishes to make social policy would impose an unjustifiable and unrealistic limit on legislative power.
The Court has recognized that the Oakes standard of justification should be attenuated when institutional constraints analogous to those in the present cases arise. Although courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny -- that is not so in the sphere of policy-making. Policy-making is a role properly assigned to elected parliamentarians who have the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups. In according a greater degree of deference to social legislation than to ordinary criminal justice legislation, the courts recognize these important institutional differences. The Act in issue is the type of legislation generally accorded a high degree of deference and the considerations addressed in Irwin Toy and McKinney are applicable.
Expression, depending on its nature, is entitled to varying levels of constitutional protection and requires a contextual, as opposed to an abstract, approach. Although freedom of expression is a fundamental value, other fundamental values are also deserving of protection and consideration by the courts. When these values come into conflict, the courts must make choices based not upon abstract analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. Freedom of expression claims must be weighed in light of their relative connection to a set of even more fundamental or core values which include the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. State action placing such values in jeopardy is subject to a searching degree of scrutiny. Where the expression in question is farther from the "core" of freedom of expression values, a lower standard of justification may be applied.
The harm engendered by tobacco and the profit motive underlying its promotion place this form of expression as far from the "core" of freedom of expression values as prostitution, hate-mongering and pornography. Its sole purpose is to promote the use of a product that is harmful and often fatal to the consumer by sophisticated advertising campaigns often specifically aimed at the young and most vulnerable. This form of expression must then be accorded a very low degree of protection under s. 1 and an attenuated level of justification is appropriate. The Attorney General need only demonstrate that Parliament had a rational basis for introducing the measures contained in this Act.
The reliance on the trial judge's finding need not be adopted. An appellate court generally may only interfere with the factual findings of a trial judge where the trial judge made a manifest error and where that error influenced the trial judge's final conclusion or overall appreciation of the evidence. The trial judge's factual findings in these cases, however, were not of the type that fall within the general rule of appellate "non-interference". The privileged position of the trial judge to appreciate and weigh adjudicative facts does not extend to the assessment of "social" or "legislative" facts that arise in the law-making process. The trial judge's factual findings concerning the connection between tobacco advertising and consumption were therefore entitled to minimal deference.
The legislative means chosen under the Act must be rationally connected to the objective of protecting public health by reducing tobacco consumption, not according to a civil standard of proof, but only to the extent that there was a reasonable basis for believing such connection. A rational connection obviously exists between a prohibition on the distribution of free samples of tobacco products under s. 7 and the protection of public health. One also exists between the prohibition on advertising and promotion of tobacco products under ss. 4, 5, 6, and 8 and the objective of reducing tobacco consumption. Notwithstanding the want of a definitive study connecting tobacco advertising and tobacco consumption, sufficient evidence was adduced at trial to conclude that the objective of reducing tobacco consumption is logically furthered by the prohibition on tobacco advertising and promotion under the Act. The large advertising budgets of the tobacco companies of themselves suggest that advertising not only helps to maintain brand loyalty but also to increase consumption and to induce smokers not to quit. The government's concern with the health effects of tobacco can quite reasonably extend to both potential smokers and current smokers who would prefer to quit but cannot. Three categories of evidence capable of substantiating this rational connection were disregarded at trial: internal tobacco marketing documents, expert reports, and international materials. The internal marketing documents introduced at trial strongly suggest that the tobacco companies perceive advertising to be a cornerstone of their strategy to reassure current smokers and expand the market by attracting new smokers, primarily among the young. The expert reports introduced at trial attest, at the very least, to the existence of a "body of opinion" supporting the existence of a causal connection between advertising and consumption. It is also significant that by 1990, over 40 countries had adopted measures to restrict or prohibit tobacco advertising.
For the reasons discussed throughout the s. 1 analysis, the legislative means chosen impair the right in question as little as possible, notwithstanding the fact that it imposes a complete prohibition on tobacco advertising and promotion rather than a partial one. The relevance of context is important in s. 1 balancing, particularly at the minimal impairment stage, because it does not require that the least intrusive measures be used but only that the measures employed were the least intrusive in light of both the legislative objective and the infringed right. The measures taken here to control tobacco products, given the legislative context and the fact that this profit-generated type of expression is far from the "core" of the freedom of expression, satisfied the Oakes minimal impairment requirement. While a complete prohibition on a type of expression is more difficult to justify than a partial prohibition, ample evidence was adduced at trial to demonstrate the government's decision that a full prohibition on advertising was justified and necessary. The measures were the product of an intensive 20-year period of experimenting with less intrusive measures with the cooperation of the provinces and expensive consultation with an array of national and international health groups. Over the course of this period the government adopted a variety of less intrusive measures before determining a full prohibition on advertising was necessary. Parallel developments in the international community have taken place. There has been overwhelming legislative and judicial acceptance of this type of prohibition by other democratic countries. Where governments have instituted partial prohibitions, tobacco companies have devised ingenious tactics to circumvent them. International health organizations support this kind of prohibition.
A proportionality must exist between the deleterious and the salutary effects of the measures. The legislative objective of reducing the number of direct inducements for Canadians to consume these products outweighs the limitation on tobacco companies to advertise inherently dangerous products for profit.
While a legitimate concern was raised with respect to the effect of governmental claims to confidentiality in constitutional cases, the action of the government in these cases was not fatal. The evidence was overwhelming that the prohibition was a reasonable one.
Compelling the tobacco companies to place unattributed health messages on tobacco packages does not infringe their freedom of expression. These messages cannot be taken as being an opinion endorsed by the tobacco companies. They are rather a requirement imposed by government as a condition of participating in a legislated activity. Even if they may infringe a form of expression protected by s. 2(b), they were fully justifiable under s. 1. The warnings do nothing more than bring the dangerous nature of these products to the attention of the consumer. They have no political, social or religious content. Any concern arising from the tobacco companies' being prevented from printing on their packaging the opinion that tobacco products are not harmful, even if it is a technical infringement of their rights, was easily outweighed by the pressing health concerns raised by tobacco consumption, especially to children. The Charter does not require the elimination of "minuscule" constitutional burdens, and legislative action that increases the costs of exercising a right should not be invalidated if the burden is "trivial". Here, the only cost associated with the unattributed health warning requirement was a potential reduction in profits; manufacturers of dangerous products can reasonably be expected to bear this cost.
Disposition
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: Sections 4, 8 and 9, and ss. 5 and 6 which are not severable from them, are of no force or effect under s. 52 of the Constitution Act, 1982. Iacobucci J., while declaring the impugned legislation inoperable, would have made a suspensive declaration of invalidity of one year and Cory J., had he found the impugned legislation inoperable, would have agreed with Iacobucci J. in this respect.
Per Lamer C.J. and Sopinka, McLachlin and Major JJ.: Sections 4, 8 and 9 of the Tobacco Products Control Act constitute unjustified infringements on free expression and cannot be severed cleanly from other provisions dealing with promotion and trade mark usage, ss. 5 or 6. Sections 4, 5, 6, 8, and 9 are inconsistent with the Charter and hence are of no force or effect by reason of s. 52 of the Constitution Act, 1982.
Per Iacobucci J.: A suspensive declaration of invalidity of one year should be made. Immediately striking down the legislation would permit the tobacco companies the untrammelled ability to advertise until minimally impairing legislation is drafted; the suspensive veto would permit the government to design such legislation while the status quo remains in force.
Per Cory J.: If the impugned legislation were inoperable, agreement was expressed for the reasons of Iacobucci J. that a suspensive declaration of invalidity of one year be made.
By McLachlin J.
Referred to: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Oakes, [1986] 1 S.C.R. 103; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Snell v. Farrell, [1990] 2 S.C.R. 311; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Chaulk, [1990] 3 S.C.R. 1303; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084.
By Iacobucci J.
Referred to: Egan v. Canada, [1995] 2 S.C.R. 513; R. v. Oakes, [1986] 1 S.C.R. 103; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
By Major J.
Referred to: R. v. Morgentaler, [1993] 3 S.C.R. 463; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; R. v. Hauser, [1979] 1 S.C.R. 984; Boggs v. The Queen, [1981] 1 S.C.R. 49; Reference re Alberta Statutes, [1938] S.C.R. 100; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Furtney, [1991] 3 S.C.R. 89.
By La Forest J. (dissenting)
R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348; Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193; R. v. Oakes, [1986] 1 S.C.R. 103; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Attorney-General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Goodyear Tire and Rubber Co. v. The Queen, [1956] S.C.R. 303; R. v. Zelensky, [1978] 2 S.C.R. 940; Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; R. v. Morgentaler, [1993] 3 S.C.R. 463; Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373; Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Schneider v. The Queen, [1982] 2 S.C.R. 112; Switzman v. Elbling, [1957] S.C.R. 285; R. v. Wetmore, [1983] 2 S.C.R. 284; Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, supplemented by addendum at [1934] 1 D.L.R. 706; R. v. Swain, [1991] 1 S.C.R. 933; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Cosman's Furniture (1972) Ltd. (1976), 32 C.C.C. (2d) 345; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368; Campbell v. The Queen, [1965] S.C.R. vii; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Furtney, [1991] 3 S.C.R. 89; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Keegstra, [1990] 3 S.C.R. 697; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Jones, [1986] 2 S.C.R. 284; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; R. v. Butler, [1992] 1 S.C.R. 452; Dorval v. Bouvier, [1968] S.C.R. 288; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Dunagin v. City of Oxford, Mississippi, 718 F.2d 738 (5th Cir. 1983) (en banc), cert. denied, 467 U.S. 1259 (1984); Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Oklahoma Telecasters Ass'n v. Crisp, 699 F.2d 490 (1983), rev'd on other grounds sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130; Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641; R. v. Schwartz, [1988] 2 S.C.R. 443; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.
Act Respecting the Protection of Non-Smokers in Certain Public Places, R.S.Q., c. P-38.01.
Act to amend the Excise Act, the Customs Act and the Tobacco Sales to Young Persons Act, S.C. 1994, c. 37.
Act to Protect the Health of Non-smokers, S.M. 1990, c. S125.
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39.
Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitution Act, 1867, Preamble, ss. 91(27), 92(13), (16).
Hazardous Products Act, R.S.C., 1985, c. H-3, ss. 2 [rep. & sub., c. 24 (3rd. Supp.), s. 1], 4 [idem], 5 [idem], 15 [idem].
Medical Services Act, R.S.N.S. 1989, c. 281.
Minors Tobacco Act, R.S.S. 1965, c. 381.
Non-smokers' Health Act, S.C. 1988, c. 21.
Tobacco Access Act, S.N.S. 1993, c. 14.
Tobacco Control Act, S.N. 1993, c. T-4.1.
Tobacco Control Act, 1994, S.O. 1994, c. 10.
Tobacco Product Act, R.S.B.C. 1979, c. 403 [am. S.B.C. 1992, c. 81].
Tobacco Products Control Act, S.C. 1988, c. 20, ss. 3, 4, 5, 6, 7, 8, 9, 10, 17, 18, 19.
Tobacco Products Control Regulations, amendment, SOR/93-389, s. 11.
Tobacco Sales Act, S.N.B. 1993, c. T-6.1.
Tobacco Sales to Minors Act, S.P.E.I. 1991, c. 44.
Tobacco Sales to Young Persons Act, S.C. 1993, c. 5.
Canada. Health and Welfare Canada. Canadian Initiatives in Smoking and Health. Ottawa: 1983.
Canada. Health and Welfare Canada. Health Protection Branch. Bureau of Chronic Disease Epidemiology. Surveillance & Risk Assessment Division. Report by Donald T. Wigle. Illness and Death in Canada by Smoking: An Epidemiological Perspective. Ottawa: 1989.
Canada. Health and Welfare Canada. National Program to Reduce Tobacco Use. "Directional paper of the national program to reduce tobacco use in Canada". Appendix in National Program to Reduce Tobacco Use: Orientation Manuals & Historical Perspective. Ottawa: 1987.
Canada. Health and Welfare Canada. National Program to Reduce Tobacco Use. National Program to Reduce Tobacco Use: Orientation Manuals & Historical Perspective. Ottawa: 1987.
Canada. Health and Welfare Canada. Tobacco Products Unit. Report by Roberta G. Ferrence. Trends in Tobacco Consumption in Canada, 1900-1987. Ottawa: 1989.
Canada. House of Commons Debates, vol. IX, 2nd Sess., 33rd Parl., November 23rd, 1987, p. 11042.
Canada. House of Commons. Standing Committee on Health, Welfare and Social Affairs. Report of the Standing Committee on Health, Welfare and Social Affairs on Tobacco and Cigarette Smoking. Presented by M. Gaston Isabelle, Chairman, Session 1969-70. Ottawa: Queen's Printer, 1969.
Chapman, Simon and Bill Fitzgerald. "Brand Preference and Advertising Recall in Adolescent Smokers: Some Implications for Health Promotion" (1982), 72 Am. J. Pub. Health 491.
Collinshaw, Neil E., Walter Tostowaryk and Donald T. Wigle. "Mortality Attributable to Tobacco Use in Canada" (1988), 79 Can. J. Pub. Health 166.
European Commission. Official Journal of the European Communities. Preparatory Acts. Amended proposal for a Council Directive on the authorized advertising of tobacco products in the press and by means of bills and posters. (90/C 116/05).
European Commission. Official Journal of the European Communities. Preparatory Acts. Amended proposal for a Council Directive on advertising of tobacco products. (91/C 167/03).
European Commission. Official Journal of the European Communities. Preparatory Acts. Amended proposal for a Council Directive on the approximation of Member States' laws, regulations and administrative provisions on advertising for tobacco products. (92/C 129/04).
European Council. Official Journal of the European Communities. Council Directive of 3 October 1989. (89/552/EEC).
European Council. Official Journal of the European Communities. Council Directive of 13 November 1989. (89/622/EEC). Amended by Council Directive of 15 May 1992. (92/41/EEC).
Gorn, Gerald J. and Renée Florsheim. "The Effects of Commercials for Adult Products on Children" (1985), 11 J. Consumer Res. 962.
Hagan, John. "Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation". In Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987, 213.
Hogg, Peter. Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Imasco Ltd. Annual Report 1992. Montreal: Imasco Ltd., 1992.
Imperial Tobacco Ltd. Project Viking, vol. I: A Behavioural Model of Smoking. Montreal: Imperial Tobacco Ltd., 1986.
Imperial Tobacco Ltd. Project Viking, vol. II: An Attitudinal Model of Smoking. Montreal: Imperial Tobacco Ltd., 1986.
Imperial Tobacco Ltd. Project Viking, vol. III: Product Issues. Montreal: Imperial Tobacco Ltd., 1986.
Joossens, Luc. "Strategy of the Tobacco Industry Concerning Legislation on Tobacco Advertising in some Western European Countries". In Proceedings of the 5th World Conference on Smoking and Health. Winnipeg: Canadian Council on Smoking and Health, 1983, 549.
Morgan, Brian G. "Proof of Facts in Charter Litigation". In Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987, 159.
New Zealand. Toxic Substances Board. Health or Tobacco: An End to Tobacco Advertising and Promotion. Wellington: Publications Division, Government Printing Office, 1989.
Rothschild, Michael L. Advertising: From Fundamentals to Strategies. Toronto: D. C. Heath, 1987.
United Nations. Economic and Social Council. Resolution 1993/79. "Multisectoral collaboration on tobacco or health". Geneva, September 7, 1993. Official Records of the Economic and Social Council, 1993, Supplement No. 1. (E/1993/93).
United States of America. Department of Health and Human Services. Reducing the Health Consequences of Smoking -- 25 Years of Progress -- A report of the Surgeon General. U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. DHHS Publication No. (CDC) 89-8411, Prepublication version, January 11, 1989.
United States of America. Department of Health and Human Services. The Health Consequences of Smoking -- Nicotine Addiction -- A report of the Surgeon General. U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Health Promotion and Education, Office on Smoking and Health. Washington, D.C.: U.S. Government Printing Office, 1988.
Woolhandler, Ann. "Rethinking the Judicial Reception of Legislative Facts" (1988), 41 Vand. L. Rev. 111.
World Health Assembly. World Health Assembly Resolution WHA39.14. May 1986. WHA39/1986/REC/1, 14.
World Health Assembly. World Health Assembly Resolution WHA43.16. May 1990. WHA43/1990, 16.
Colin K. Irving, Georges R. Thibaudeau and Douglas Mitchell, for the appellant RJR-MacDonald Inc.
L. Yves Fortier, Q.C., Simon V. Potter, Lyndon A. J. Barnes and Gregory Bordan, for the appellant Imperial Tobacco Ltd.
Alain Gingras, for the mis-en-cause the Attorney General of Quebec.
Claude Joyal, James Mabbutt, Q.C., Paul Évraire, Q.C., Yves Leb{oe}uf and Johanne Poirier, for the respondent.
Tanya Lee, for the intervener the Attorney General for Ontario.
Robert W. Cosman, Karl Delwaide and Richard B. Swan, for the interveners the Heart and Stroke Foundation of Canada, the Canadian Cancer Society, the Canadian Council on Smoking and Health, the Canadian Medical Association, and the Canadian Lung Association.
The following are the reasons delivered by
1 LAMER C.J. -- I have had the benefit of reading the reasons of my colleagues. I am in agreement with the reasons of my colleague, Justice Iacobucci, but agree with my colleague, Justice McLachlin, as to the disposition.
The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by
2 LA FOREST J. (dissenting) -- The issues in these appeals are whether the Tobacco Products Control Act, S.C. 1988, c. 20 (the "Act"), falls within the legislative competence of the Parliament of Canada under s. 91 of the Constitution Act, 1867, either as criminal law or under the peace, order and good government clause, and if so whether it constitutes an infringement of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms which is not justified under s. 1 of the Charter. In broad terms, the Act prohibits, subject to specified exceptions, all advertising and promotion of tobacco products, and prohibits the sale of a tobacco product unless the package containing it sets forth prescribed health warnings and a list of the toxic constituents of the product and of the smoke produced from its combustion.
3 These proceedings began with two separate motions for declaratory judgments before the Quebec Superior Court. The appellant RJR - MacDonald Inc. ("RJR") seeks a declaration that the Act is wholly ultra vires the Parliament of Canada and invalid as an unjustified infringement of freedom of expression guaranteed by s. 2(b) of the Charter. The appellant Imperial Tobacco Ltd. ("Imperial") seeks the same order, but only in respect of ss. 4, 5, 6 and 8 of the Act. The two motions were heard together before Chabot J. of the Quebec Superior Court who rejected the Attorney General of Canada's contention that the Act was valid either as criminal law or under the peace, order and good government clause, and declared the whole of the Act ultra vires the Parliament of Canada. He further held the Act was of no force or effect as an unjustified infringement of s. 2(b) of the Charter. The Quebec Court of Appeal reversed this judgment. While upholding the judge's conclusion regarding the criminal law power, it unanimously held that the Act was intra vires Parliament as falling within the peace, order and good government clause and, by majority, that the infringement of s. 2(b) of the Charter was justified by s. 1 of that instrument. The minority judge would have held ss. 4, 5, 6 and 8 invalid under s. 2(b) of the Charter.
4 The appellants sought and were granted leave to appeal to this Court.
The Legislative Scheme
5 The Act, the long title of which is An Act to prohibit the advertising and promotion and respecting the labelling and monitoring of tobacco products, received Royal Assent on June 28, 1988 and came into force on January 1, 1989. The purpose of the Act is set out in s. 3, which reads:
3. 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 the light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;
(b) to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and
(c) to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products.
Section 3 thus states that Parliament's purpose in enacting the legislation is to address the "national public health problem of substantial and pressing concern" arising from the use of tobacco, by protecting young persons and others from inducements to use tobacco products, and by enhancing public awareness concerning the hazards of tobacco use. However, it is of significance to these appeals that, with the exception of a prohibition on the distribution of free samples of tobacco products under s. 7, the Act does not purport to proscribe the sale, distribution or use of tobacco products. Rather, as its long title indicates, the Act seeks to attain its purpose through the institution of a prohibition on the advertising and promotion of tobacco products offered for sale in Canada and through the institution of a requirement that manufacturers of tobacco products display health warnings on tobacco product packages.
6 In furtherance of the purpose set out in s. 3, Parliament has created a legislative scheme that targets three distinct categories of commercial activity: advertising, promotion and labelling. Sections 4 and 5 of the Act, which fall under the title "ADVERTISING", deal with the advertisement and display of tobacco products. Section 4 prohibits the advertisement, by publication, broadcast or otherwise, of tobacco products offered for sale in Canada. An exception to this prohibition is created by s. 4(3) and (4), which stipulate that the prohibition does not extend to foreign advertising in foreign publications imported into Canada or foreign broadcasts retransmitted in Canada, as long as those advertisements are not intended primarily for the purpose of promoting the sale of a tobacco product in Canada. Section 5 is directed to the retail display of tobacco products in retail establishments and vending machines. Section 5(1) stipulates that a retailer may expose tobacco products for sale and may post signs that indicate, other than by their brand names or trade marks, the tobacco products offered for sale on the premises. Section 5(2) permits the operation of tobacco vending machines, and the identification of products and prices on the exterior of the machines.
7 Sections 6 to 8 of the Act fall under the title "PROMOTION", and deal with various direct and indirect promotional activities involving tobacco products. Section 6(1) stipulates that the full name of a tobacco manufacturer may be used in a representation to the public that promotes a cultural or sporting event, but prohibits the use of brand names in such representations unless the use of a brand name is required by a contract made before January 25, 1988. Section 6(2) stipulates that, where a contract requiring the use of a brand name was in place before January 25, 1988, the value of contributions under that contract are frozen at 1987 levels. Section 7 prohibits the free distribution of tobacco products in any form. Section 8 prohibits the use of a tobacco trade mark on any article other than a tobacco product, and also prohibits the use and distribution of tobacco trade marks in advertising for products other than tobacco products; however, a special exemption from the s. 8 prohibition is created under s. 8(3) for the "Dunhill" trade mark.
8 Section 9 falls under the title "LABELLING", and prohibits tobacco manufacturers from selling their products unless they display on the package containing the product unattributed messages describing the health effects of the product as well as a list of the product's toxic constituents and the quantities of those constituents present in it. Section 17(f) authorizes the Governor in Council to adopt regulations prescribing the content, position, configuration, size and prominence of the health messages. Under the Tobacco Products Control Regulations, amendment, SOR/93-389, s. 11 (July 21, 1993), every tobacco package must display one of the following messages:
11. (1) . . .
(a) . . .
(i) "Cigarettes are addictive" . . .
(ii)"Tobacco smoke can harm your children" . . .
(iii) "Cigarettes cause fatal lung disease" . . .
(iv) "Cigarettes cause cancer" . . .
(v)"Cigarettes cause strokes and heart disease" . . .
(vi) "Smoking during pregnancy can harm your baby" . . .
(vii) "Smoking can kill you" . . .
(viii) "Tobacco smoke causes fatal lung disease in non-smokers" . . .
10 The enforcement provisions of the Act are found in ss. 11 to 16. These provisions confer upon the Minister the power to designate a "tobacco product inspector" with powers of inspection, search and seizure, analysis, detention of things seized, and forfeiture. The "offences and punishments" for contravention of the Act are set out in ss. 18 and 19. Section 18 stipulates that every person who contravenes ss. 4, 6(2), 7, 8, 9 or 10 is guilty of an offence punishable on summary conviction or an indictable offence. The penalties range in seriousness from a fine not exceeding two thousand dollars or six months' imprisonment, or both, for a first offence on summary conviction, to a fine not exceeding three hundred thousand dollars or two years' imprisonment, or both, for a second or subsequent offence pursued by way of indictment.
The Relevant Statutory Provisions
11 For ease of reference, I set out the relevant provisions of the Act as follows:
4. (1) No person shall advertise any tobacco product offered for sale in Canada.
(2) No person shall, for consideration, publish, broadcast or otherwise disseminate, on behalf of another person, an advertisement for any tobacco product offered for sale in Canada.
(3) For greater certainty, subsection (2) does not apply in respect of the distribution for sale of publications imported into Canada or the retransmission of radio or television broadcasts originating outside Canada.
(4) No person in Canada shall advertise a tobacco product by means of a publication published outside Canada or a radio or television broadcast originating outside Canada primarily for the purpose of promoting the sale in Canada of a tobacco product.
(5) Notwithstanding subsections (1) and (2), the manufacturer or importer of a tobacco product may advertise the product by means of signs at any time before January 1, 1991, if
(a) the amount, determined in accordance with the regulations, expended by the manufacturer or importer on the preparation in 1989 of materials for use in signs and on the presentation of signs in that year does not exceed two thirds of the expenses of the manufacturer or importer, determined in accordance with the regulations, incurred during its last financial year ending before January 1, 1988 for such preparation and presentation;
(b) the amount, determined in accordance with the regulations, expended by the manufacturer or importer on such preparation and presentation in 1990 does not exceed one third of the expenses of the manufacturer or importer, so determined, incurred therefor during the financial year referred to in paragraph (a); and
(c) a health warning is provided in accordance with the regulations on any sign put in place after the coming into force of this Act.
(6) In subsection (5), "sign" does not include
(a) a sign displayed at the place of business of a retailer; or
(b) a representation described in paragraph 6(1)(a) or (b).
5. (1) Notwithstanding section 4, a retailer may
(a) expose tobacco products for sale at the retailer's place of business;
(b) post in that place, in the prescribed form, manner and quantity, signs that indicate, otherwise than by their brand names or trade marks, the tobacco products offered for sale and their prices;
(c) where the retailer's name or trade name contains any word or expression signifying that tobacco products are sold by the retailer, employ that name or trade name, otherwise than in association with a tobacco product, for the purpose of advertising the retailer's business, except by means of a radio or television transmission; and
(d) display at the retailer's place of business, at any time before January 1, 1993, an advertisement or portion thereof
(i)that was displayed in that place before January 25, 1988, or
(ii)that the retailer is obliged to display under the terms of a contract entered into before January 25, 1988, other than a term allowing for the extension or renewal of the contract after that day.
(2) Notwithstanding section 4, a person who operates a vending machine that dispenses tobacco products may identify or depict those products and their prices on the exterior of the vending machine in the prescribed form and manner.
6. (1) Notwithstanding section 4 and subsection 8(1) but subject to subsection (2) of this section, the full name of a manufacturer or importer of tobacco products and, where required by the terms of a contract entered into before January 25, 1988, the brand name of a tobacco product, may be used, otherwise than in association with a tobacco product, in a representation to the public
(a) that promotes a cultural or sporting activity or event; or
(b) that acknowledges financial or other contributions made by the manufacturer or importer of the tobacco product toward such an activity or event.
(2) Where, in any calendar year, a manufacturer or importer of tobacco products makes financial or other contributions toward cultural or sporting activities or events in respect of which brand names of those products are used, the value of such contributions, determined in accordance with the regulations, shall not exceed the value, so determined, of the contributions made by the manufacturer or importer toward cultural or sporting activities and events in 1987.
7. (1) No distributor shall distribute tobacco products in the absence of consideration therefor, or furnish tobacco products to any person for the purpose of their subsequent distribution without consideration.
(2) No person shall offer any gift or cash rebate or the right to participate in any contest, lottery or game to the purchaser of a tobacco product in consideration of the purchase thereof, or to any person in consideration of the furnishing of evidence of such a purchase.
8. (1) No manufacturer or importer of tobacco products who is entitled to use any trade mark in association with those products, and no person acting with the concurrence or acquiescence of such a manufacturer or importer, shall
(a) apply the trade mark, in any form in which it appears on packages of the product that are sold in Canada, to any article other than a tobacco product or a package or container in which a tobacco product is sold or shipped, or
(b) use the trade mark in any such form for the purpose of advertising any article other than a tobacco product or any service, activity or event,
notwithstanding that the manufacturer or importer is, but for this Act, entitled to use the trade mark in association with that article, service, activity or event.
(2) No person shall distribute, sell, offer for sale or expose for sale any article, other than a tobacco product or a package or container in which a tobacco product is sold or shipped, that bears a trade mark of a tobacco product in any form in which it appears on packages of the tobacco product that are sold in Canada.
(3) Subsections (1) and (2) do not apply in respect of a trade mark if in 1986 tobacco products and other articles bearing that trade mark were sold at retail in Canada and the retail value of those other articles estimated in accordance with the regulations was greater than one-quarter of the retail value of those tobacco products so estimated.
(4) Subsection (2) does not apply in respect of the distribution or sale before January 1, 1993 of an article manufactured before April 30, 1987, or ordered before that date from the manufacturer or supplier of the article otherwise than by the placing of a standing order that requires confirmation or is subject to cancellation after that date.
9. (1) No distributor shall sell or offer for sale a tobacco product unless
(a) the package containing the product displays, in accordance with the regulations, messages pertaining to the health effects of the product and a list of toxic constituents of the product and, where applicable, of the smoke produced from its combustion indicating the quantities of those constituents present therein; and
(b) if and as required by the regulations, a leaflet furnishing information relative to the health effects of the product has been placed inside the package containing the product.
(2) No distributor shall sell or offer for sale a tobacco product if the package in which it is contained displays any writing other than the name, brand name and any trade marks of the tobacco product, the messages and list referred to in subsection (1), the label required by the Consumer Packaging and Labelling Act and the stamp and information required by sections 203 and 204 of the Excise Act.
(3) This section does not affect any obligation of a distributor, at common law or under any Act of Parliament or of a provincial legislature, to warn purchasers of tobacco products of the health effects of those products.
17. The Governor in Council may make regulations
(a) exempting a tobacco product from the application of sections 4 and 7 where, in the opinion of the Governor in Council, that product is likely to be used as a substitute for other tobacco products and poses less risk to the health of users than those other products;
. . .
(f) prescribing, in respect of any tobacco product, the content, position, configuration, size and prominence of the messages and list of toxic constituents referred to in paragraph 9(1)(a);
(g) requiring leaflets furnishing information referred to in paragraph 9(1)(b) to be placed inside packages of a tobacco product and prescribing their content, form and manner of placement in those packages;
. . .
18. (1) Every person who contravenes section 4, 7, 8, 9 or 10
(a) is guilty of an offence punishable on summary conviction and is liable
(i)for a first offence under any of those sections, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months, or to both, and
(ii)where the person has previously been convicted of an offence under any of those sections, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months, or to both; or
(b) is guilty of an indictable offence and liable
(i)for a first offence under any of those sections, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both, and
(ii)where the person has previously been convicted of an offence under any of those sections, to a fine not exceeding three hundred thousand dollars or to imprisonment for two years, or to both.
(2) Every person who contravenes subsection 6(2) is guilty of an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months, or to both; or
(b) for a second or subsequent offence, to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year, or to both.
(3) Every person who contravenes section 14 or any regulations made under paragraph 17(i) is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding ten thousand dollars.
19. (1) A prosecution in respect of an offence under this Act, other than a prosecution under paragraph 18(1)(b), may not be instituted later than twelve months after the time when the subject-matter of the prosecution arose.
(2) A prosecution for an offence under this Act may be instituted, heard, tried and determined by a court in any territorial jurisdiction in which the accused carries on business regardless of where the subject-matter of the prosecution arose.
(3) No exception, exemption, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information or indictment for an offence under this Act or under section 421, 422 or 423 [now section 463, 464 or 465] of the Criminal Code in respect of an offence under this Act.
(4) In any prosecution for an offence referred to in subsection (3), the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.
Judgments of the Courts Below
Quebec Superior Court (1991), 82 D.L.R. (4th) 449 (Chabot J.) (translation)
12 Chabot J. found the Act invalid in its entirety, both as being ultra vires the Parliament of Canada under the Constitution Act, 1867 and as constituting an unjustifiable infringement of s. 2(b) of the Charter.
13 In his analysis of the Act under the Constitution Act, 1867, Chabot J., at pp. 467-68, characterized it as legislation that is, in pith and substance, in relation to the regulation of advertising and promotion carried on by a particular industry. Having thus characterized the Act, Chabot J. then determined that it was not a valid exercise of the federal Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867 or Parliament's power to legislate for the peace, order and good government of Canada under s. 91 of the Constitution Act, 1867.
15 Turning to the peace, order and good government clause, Chabot J. concluded that the Act did not satisfy the criteria for the "national dimensions" branch of that clause set forth in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. The present cases were, in his view, distinguishable from the Privy Council's decisions in the "temperance cases" (Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348 (the Local Prohibition Case), and Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193) because, in contrast with those cases, there was "no evidence that the advertisement of tobacco products has attained a stage of pestilence in Canada which would give it the required character and degree of singleness, distinctiveness and indivisibility which would distinguish it clearly from matters of provincial interest" (p. 475). Chabot J. also decided that there was no evidence of a "provincial inability" to control tobacco advertising. He observed, at p. 478, that "the evidence clearly shows the will and the capacity of the provinces to cooperate with each other and with the federal government with respect to the advertising and promotion of tobacco products".
16 Proceeding to an analysis of the Act's validity under the Charter, Chabot J. found the Act to be in violation of the appellants' right to freedom of expression under s. 2(b). He concluded, first (at pp. 484-85), that tobacco advertising has a sufficient expressive content to constitute a protected activity under s. 2(b) and, second (at p. 486), that the unattributed health message requirement under s. 9 of the Act infringed the appellants' s. 2(b) rights on the ground that "freedom of expression includes the freedom to remain silent".
17 Chabot J. then found, applying the test established by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, that the s. 2(b) infringement was not justified under s. 1 of the Charter. After considering the uncontradicted evidence adduced by the Attorney General concerning the dire health consequences of tobacco use, Chabot J., at p. 492, concluded that the Attorney General had satisfied the first branch of the Oakes test by demonstrating a "substantial and pressing concern". However, he concluded that the Act did not survive the "proportionality branch of that test. He began his proportionality analysis by holding, at p. 515, that the Attorney General had failed to establish, on the balance of probabilities, that a rational connection exists between a full prohibition on advertising and the objective of reducing tobacco consumption. He also observed, at p. 513, that "[t]he virtual totality of the scientific documents in the state's possession at the time the Act was passed do not demonstrate that a ban on advertising would affect consumption". He then decided that the complete prohibition on advertising under the Act did not meet the test of minimal impairment of the appellants' s. 2(b) rights. He observed, at pp. 515-16, that no evidence had been adduced at trial demonstrating that a complete prohibition on tobacco advertisements would reduce tobacco consumption more effectively than a partial ban, or that unattributed health warnings would be more effective than attributed health warnings. Finally, with respect to the proportionality between effects and objectives, Chabot J. concluded, at p. 517, that the Act constitutes "social engineering" and "an extremely serious impairment of the principles inherent in a free and democratic society which is disproportionate to the objective of the [Act]".
Quebec Court of Appeal (1993), 102 D.L.R. (4th) 289 (LeBel and Rothman JJ.A., Brossard J.A. dissenting in part) (translation)
18 The Court of Appeal allowed the appeals from the decision of Chabot J. and upheld the constitutional validity of the Act in its entirety. It was unanimous in deciding that the Act was not beyond the legislative competence of the Parliament of Canada under s. 91 of the Constitution Act, 1867 and, although the Attorney General had conceded that the Act constituted an infringement of the appellants' rights under s. 2(b), a majority (Brossard J.A. dissenting) decided that the infringement was justifiable under s. 1 of the Charter.
19 Writing for a unanimous Court of Appeal with respect to the constitutionality of the Act under the Constitution Act, 1867, Brossard J.A. began his analysis by characterizing the Act as legislation, in pith and substance, in relation to the protection of public health (at p. 339). Brossard J.A. criticized, at pp. 338-39, the trial judge's pith and substance analysis on two grounds. First, he decided that the trial judge had confined himself to an excessively literal interpretation of the Act by failing to explore a possible connection between the Act's statement of purpose in s. 3 and its legal effect on tobacco advertising and promotion. Second, he held that the trial judge had confused the evidentiary requirements for the application of s. 1 of the Charter, under which the effectiveness of the legislation is a relevant criterion, with the requirements for ascertaining pith and substance in a division of powers analysis, where it is not.
20 Brossard J.A. then proceeded to consider whether the Act was a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 or the peace, order and good government clause under s. 91 of the Constitution Act, 1867. He began by deciding that the Act did not fall under the criminal law power. He found it significant, at pp. 341-42, that neither tobacco consumption nor tobacco advertising are activities that have an "affinity with some traditional criminal law concern" (p. 342) and observed that, although the Act makes the advertising and promotion of tobacco products illegal, the "real evil" the Act is designed to combat, tobacco consumption, continues to be legal in Canada. Parliament, he reasoned, at pp. 340-41, cannot criminalize the ancillary activities relating to a principal activity when it has not criminalized the principal activity itself. Brossard J.A. decided, however, that the Act fell within the federal Parliament's power to legislate for the peace, order and good government of Canada because it satisfied the test for the "national dimensions" branch of that power developed in Crown Zellerbach, supra. He observed, at p. 348, that the problem of tobacco consumption has developed into a matter of national concern comparable in scope to that of alcohol consumption addressed in the temperance cases. He also noted, at p. 350, that the health problems resulting from tobacco consumption have a "singleness, distinctiveness and indivisibility that distinguish them clearly from matters that are of strictly provincial interest". Finally, he concluded that the Act met the "provincial inability test" because "[t]he fact is that communications, whether radio or television broadcasting, or even newspaper publishing, do not recognize frontiers, still less provincial borders" (pp. 350-51).
21 The Court of Appeal was divided on the validity of the Act under the Charter. LeBel J.A., writing for the majority, accepted that the Act infringed the appellants s. 2(b) rights, but held that the infringement was justified under s. 1 of the Charter. LeBel J.A., at pp. 311-12, first noted that the trial judge had erred in applying a civil standard of justification in his application of the Oakes analysis. He observed, at p. 313, that, in cases involving socio-economic legislation such as the Act, this Court has "recognized the need for an attitude of deference with regard to legislative choices", and has required the state to meet an attenuated standard of justification under the Oakes analysis.
22 Applying the attenuated Oakes standard, LeBel J.A. held that the Act was a justifiable infringement under s. 1 of the Charter. He first observed that "there does not appear to be a serious debate" that the objective of reducing the number of smokers in Canada is pressing and substantial (p. 321), and then proceeded to an application of the proportionality test. There was, he held, at p. 323, sufficient evidence adduced at trial to establish a rational connection between a prohibition of tobacco advertising and the goal of reducing tobacco consumption. He conceded that there was no evidence on the record demonstrating, on the criterion of the civil balance of proof, that the prohibition of these forms of advertising would attain that objective. However, he noted that there was sufficient expert testimony and documentation adduced at trial to "attest, at the very least, to the existence of a body of opinion favourable to the adoption of a legislative measure such as the restriction of tobacco advertising in order to diminish consumption over time" (p. 323). LeBel J.A. also observed, at p. 324, that, in Imperial's internal documentation, "there are commentaries suggesting that the objective of tobacco advertising is either promotion, recruitment of new smokers, or consolidation of market share by reassuring current smokers".
26 Proceeding to the minimal impairment requirement, Brossard J.A. held, at p. 387, that, with the exception of the prohibition upon lifestyle advertising, ss. 4, 5, 6 and 8 of the Act did not minimally impair the appellants' rights because "it would easily have been possible to exclude from the general ban any advertising which is purely informative, there being no proof even on the level of possibility that such advertising has any impact on consumption". Thus, Brossard J.A. concluded, at p. 392, that ss. 4, 5, 6 and 8 of the Act could not be justified under s. 1 of the Charter, but that ss. 7 and 9 could be justified under s. 1 of the Charter. Brossard J.A. did not uphold the prohibition on lifestyle advertising, even though he decided it was theoretically justifiable under s. 1, because Parliament made no distinction between types of advertising in the legislation.
1 Is the Tobacco Products Control Act, S.C. 1988, c. 20, wholly or in part within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91 of the Constitution Act, 1867; as being enacted pursuant to the criminal law power in s. 91(27) thereof; or otherwise?
2 Is the Tobacco Products Control Act wholly or in part inconsistent with the right of freedom of expression as set out in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, does it constitute a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof?
Analysis
1. Jurisdiction under the Constitution Act, 1867
The Criminal Law Power
28 The first question arising on these appeals is whether the Act constitutes a valid exercise of the federal criminal law power and is therefore intra vires the federal Parliament. Section 91(27) of the Constitution Act, 1867 confers on the federal Parliament the exclusive power to legislate in relation to the criminal law. The criminal law power is plenary in nature and this Court has always defined its scope broadly. As Estey J. observed in Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 238, "[t]he terms of s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term"; see also Attorney-General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524 (P.C.), at pp. 528-29. In developing a definition of the criminal law, this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity; see Goodyear Tire and Rubber Co. v. The Queen, [1956] S.C.R. 303, at p. 311 (per Rand J.); R. v. Zelensky, [1978] 2 S.C.R. 940, at pp. 950-51 (per Laskin C.J.). In Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (PATA), at p. 324, the Privy Council defined the federal criminal law power in the widest possible terms to include any prohibited act with penal consequences. Subsequent to that decision, this Court recognized that the Privy Council's definition was too broad in that it would allow Parliament to invade areas of provincial legislative competence colourably simply by legislating in the proper form; see Scowby, supra, at p. 237. So, as Estey J. put it in Scowby, at p. 237, "it was accepted that some legitimate public purpose must underlie the prohibition". This necessary adjustment was introduced in Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the Margarine Reference). Rand J. drew attention, at pp. 49-50, to the need to identify the evil or injurious effect at which a penal prohibition was directed. He stated:
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
. . .
Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law . . . . [Emphasis added.]
See also R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 489.
30 In these cases, the evil targeted by Parliament is the detrimental health effects caused by tobacco consumption. This is apparent from s. 3, the Act's "purpose" clause, which bears repeating here:
3. 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 the light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;
(b) to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and
(c) to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products.
Quite clearly, the common thread running throughout the three enumerated purposes in paras. 3(a) to (c) is a concern for public health and, more specifically, a concern with protecting Canadians from the hazards of tobacco consumption. This is a valid concern. A copious body of evidence was introduced at trial demonstrating convincingly, and this was not disputed by the appellants, that tobacco consumption is widespread in Canadian society and that it poses serious risks to the health of a great number of Canadians. I note in passing the well-established principle that a court is entitled, in a pith and substance analysis, to refer to extrinsic materials, such as related legislation, Parliamentary debates and evidence of the "mischief" at which the legislation is directed; see Morgentaler, supra, at pp. 483-84; Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 437; Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at pp. 317-19. An appropriate starting point in an examination of these extrinsic materials is the speech given by Jake Epp, the Minister of National Health and Welfare, on November 23, 1987 before second reading of Bill C-51, which was later given Royal Assent to the Act. He stated (House of Commons Debates, vol. IX, at p. 11042):
The federal Government has taken an active role in addressing the issue of cigarette smoking. It is important for people to understand why smoking, which was thought of as merely a personal habit, has become a legitimate public concern. There is overwhelming evidence that tobacco smoke is the largest preventable cause of illness, disability and premature death in Canada. Moreover, it has also become evident that Canadians who are consistently exposed to smoke in the environment may suffer from adverse health effects. Not surprisingly, the public is increasingly asking for an environment that protects non-smokers from tobacco smoke.
As Minister of National Health and Welfare, my primary concern is the health of Canadians. Therefore, I must do all that I can to protect their health by discouraging the advertising and promotion of tobacco, and by increasing public health knowledge of the health hazards of smoking.
31 Apart from shedding light upon the government's intent in introducing this legislation, this speech also gives some indication of the nature and scope of the societal problem posed by tobacco consumption. Statistics show that approximately 6.7 million Canadians, or 28 percent of Canadians over the age of 15, consume tobacco products; see expert report prepared for Health and Welfare Canada by Dr. Roberta G. Ferrence, Trends in Tobacco Consumption in Canada, 1900-1987 (1989). The harm tobacco consumption causes each year to individual Canadians, and to the community as a whole, is tragic. Indeed, it has been estimated that smoking causes the premature death of over 30,000 Canadians annually; see Neil E. Collinshaw, Walter Tostowaryk, Donald T. Wigle, "Mortality Attributable to Tobacco Use in Canada" (1988), 79 Can. J. Pub. Health 166; expert report prepared for Health and Welfare Canada by Dr. Donald T. Wigle, Illness and Death in Canada by Smoking: An Epidemiological Perspective (1989). Overwhelming evidence was introduced at trial that tobacco use is a principal cause of deadly cancers, heart disease and lung disease. In our day and age this conclusion has become almost a truism. Nonetheless, it is instructive to review a small sampling of some of the vast body of medical evidence adduced at trial attesting to the devastating health consequences that arise from tobacco consumption. The expert report of Dr. Anthony B. Miller, for example, contains the following statement, at p. 24 ("Tobacco Use and Cancer" (1989)):
The scientific evidence summarised in this statement shows that tobacco smoking causes lung, oral, larynx, esophagus, bladder, kidney and pancreas cancer, while oral use of tobacco causes oral cancer. Tobacco use causes 29% of the deaths that occur in Canada from cancer each year, i.e. an estimated excess of 15,300 deaths in 1989. Evidence is accumulating that passive smoking (exposure to environmental tobacco smoke) increases the risk of lung cancer in non-smokers.
Similarly, in the report of Dr. Donald T. Wigle, supra, one finds the following conclusion:
Tobacco smoke contains over 4,000 known chemicals many of which are toxic. Over 50 chemicals present in tobacco smoke and tobacco smoke per se, are known to cause cancer in animals, humans or both.
. . .
Smoking causes about 30% of all cancer deaths, 30% of all coronary heart disease deaths and about 85% of all chronic bronchitis/emphysema deaths in Canada and United States. In addition, smoking is a major cause of deaths due to aortic aneurysms, peripheral artery disease and fires. There is growing evidence that smoking is also an important cause of deaths due to stroke.
In terms of the scientific evidence available, the causal role of smoking in the major diseases described above is firmly established beyond all reasonable doubt. This conclusion is accepted by all leading health professional organizations and by many governments and international agencies including:
--Canadian Medical Association
--Canadian Public Health Association
--Health and Welfare Canada
--Canadian Cancer Society
--Canadian Lung Association
--Canadian Heart Foundation
--Canadian Council on Smoking and Health
--U.S. Surgeon General/U.S. Department of Health and Human Services
--World Health Organization
--International Agency for Research on Cancer.
32 It appears, then, that the detrimental health effects of tobacco consumption are both dramatic and substantial. Put bluntly, tobacco kills. Given this fact, can Parliament validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use? In my view, there is no question that it can. "Health", of course, is not an enumerated head under the Constitution Act, 1867. As Estey J. observed in Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 142:
. . . "health" is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.
35 However, the mere fact that it is not practical or realistic to implement a prohibition on the use or manufacture of tobacco products does not mean that Parliament cannot, or should not, resort to other intermediate policy options. As Sheila Copps, then an opposition MP, commented during the debate concerning Bill C-51, House of Commons Debates, supra, at p. 11047:
We realize that tobacco has been a part of our culture for many hundreds of years. We realize that the negative health effects of tobacco have become evident only in the last number of years. Yet frankly, from a strict political point of view, I do not think any political party would want to go into the next election trumpeting itself as the party which will introduce prohibition on tobacco. That is a fact.
If we are stopping short of actually banning the sale of this hazardous product, what steps are we prepared to take to cut down on its use over the next number of years? Certainly, a ban on tobacco advertising is one strategy which is supportable in the move to cut down on the consumption of tobacco.
Jake Epp, the Minister of National Health and Welfare, made a similar observation during the debate, at p. 11045:
Prohibiting the sale of a social drug like tobacco is not feasible, but prohibiting the advertising and promotion of this toxic substance is both feasible and desirable. . . .
36 It is apparent from these comments that the social problems created by tobacco consumption are complex and that innovative legislative solutions are required to address them effectively. Faced with the insurmountable difficulties a complete prohibition upon tobacco consumption would create, the federal Parliament has undertaken the task of devising such solutions. Indeed, the Act forms only one part of a comprehensive and multi-faceted federal and provincial program to control and reduce the consumption of tobacco. This program has been in development for over 25 years. As early as 1969, the Standing Committee on Health, Welfare and Social Affairs produced a report entitled Report of the Standing Committee on Health, Welfare and Social Affairs on Tobacco and Cigarette Smoking (1969). In that report, the Committee advocated the progressive elimination of tobacco consumption through the introduction of intermediate measures. The Committee stated, at p. 30:
While it is clear that cigarette sales cannot be banned at this time, it is equally clear that the production, distribution and sale of cigarettes should no longer be considered in the same light as the production, distribution and sale of other products. It seems reasonable to introduce whatever steps are feasible to progressively eliminate the promotion of cigarette sales and preparations should be made to assist growers and others affected by reductions in cigarette sales. It is also desirable to increase educational efforts to discourage cigarette smoking and to expand activities to make cigarette smoking less hazardous for those who continue to smoke.
In this regard, the Committee recommended, at p. 32, that "cigarette advertising and all other promotion of cigarette sales be progressively eliminated" and suggested, at pp. 52-53, a complete elimination of all cigarette promotional activities within four years from enactment of any legislation. Since 1969, the Department of National Health and Welfare has introduced a variety of educational programmes and has supported research and health promotion organizations in the battle against tobacco consumption. In 1983, for example, Health and Welfare Canada published Canadian Initiatives in Smoking and Health in which it stated, at pp. 79 and 81:
A major initiative toward concerted action with the ten provinces and the two territories began in 1980, when smoking and health was identified as a high priority area for joint action. In November 1980, a federal-provincial working group was established.
When this task force reported back a year later, both federal and provincial governments were involved in a variety of smoking prevention, cessation, and research projects. The scale of these activities had grown apace and presented many opportunities for mutual assistance and cooperation.
For its part, the federal government was engaged in support, research, and program development and implementation in several critical areas.
. . .
1 Legislation
2 Access to Information
3 Availability of Services/Programs
6 Intersectoral Policy Coordination
7 Research/Knowledge Development
39 Quite clearly, then, Parliament has been innovative in seeking to find alternatives to a prohibition on the sale or use of tobacco. In light of the practical difficulties entailed in prohibiting the sale or consumption of tobacco, and the resulting need for innovative legislative solutions, Parliament's decision to criminalize tobacco advertisement and promotion is, in my view, a valid exercise of the criminal law power. This Court has long recognized that Parliament may validly employ the criminal law power to prohibit or control the manufacture, sale and distribution of products that present a danger to public health, and that Parliament may also validly impose labelling and packaging requirements on dangerous products with a view to protecting public health. This was recognized as early as the Margarine Reference, supra. There, it is true, this Court decided that s. 5(a) of the Dairy Industry Act, R.S.C. 1927, c. 45, which prohibited the importation of margarine into Canada, was ultra vires the federal Parliament, but this decision was based on the holding that margarine was not a threat to the health of Canadians and, accordingly, that s. 5(a) was an invalid intrusion upon the provincial power to regulate local trade. However, in so deciding, the Court also made clear that the federal Parliament could validly legislate under the criminal law power with respect to health and product safety. In his concurring reasons, supra, at pp. 82-83, Locke J. stated:
40 Later, in R. v. Wetmore, [1983] 2 S.C.R. 284, this Court addressed the question whether ss. 8 and 9 of the Food and Drugs Act, R.S.C. 1970, c. F-27, which prohibited the sale of drugs prepared under unsanitary conditions and false or misleading advertisement of drugs, were a valid exercise of the federal criminal law power. Those provisions read as follows:
8. No person shall sell any drug that
(a) was manufactured, prepared, preserved, packed or stored under unsanitary conditions; . . .
9. (1) No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.
In upholding the constitutionality of these provisions under s. 91(27), Laskin C.J., writing for the majority, stated, at pp. 288-89:
An examination of the various provisions of the Food and Drugs Act shows that it goes beyond mere prohibition to bring it solely within s. 91(27) but that it also involves a prescription of standards, including labelling and packaging as well as control of manufacture. The ramifications of the legislation, encompassing food, drugs, cosmetics and devices and the emphasis on marketing standards seem to me to subjoin a trade and commerce aspect beyond mere criminal law alone. There appear to be three categories of provisions in the Food and Drugs Act. Those that are in s. 8 are aimed at protecting the physical health and safety of the public. Those that are in s. 9 are aimed at marketing and those dealing with controlled drugs in Part III of the Act are aimed at protecting the moral health of the public. One may properly characterize the first and third categories as falling under the criminal law power but the second category certainly invites the application of the trade and commerce power.
However, it is unnecessary to pursue this issue and it has been well understood over many years that protection of food and other products against adulteration and to enforce standards of purity are properly assigned to the criminal law. [Emphasis added.]
It is clear from Laskin C.J.'s analysis that legislation with respect to food and drugs that is aimed at protecting the "physical health and safety of the public" is a valid exercise of the federal criminal law power. This was also the view of the British Columbia Court of Appeal in Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, supplemented by addendum at [1934] 1 D.L.R. 706, affirmed in Wetmore, supra, at pp. 292-93, where it upheld the constitutionality under the criminal law power of a prohibition against the adulteration of foods under ss. 3, 4 and 23 of the Food and Drugs Act, R.S.C. 1927, c. 76. In reaching this decision, Macdonald J.A. stated, at pp. 506-7:
. . . if the Federal Parliament, to protect the public health against actual or threatened danger, places restrictions on, and limits the number of preservatives that may be used, it may do so under s. 91 (27) of the B.N.A. Act. This is not in essence an interference with property and civil rights. That may follow as an incident but the real purpose (not colourable and not merely to aid what in substance is an encroachment) is to prevent actual, or threatened injury or the likelihood of injury of the most serious kind to all inhabitants of the Dominion.
. . .
41 Moreover, in my view, the necessary implication of the reasoning in Wetmore and the Margarine Reference is that the federal criminal law power to legislate with respect to dangerous goods also encompasses the power to legislate with respect to health warnings on dangerous goods. Since health warnings serve to alert Canadians to the potentially harmful consequences of the use of dangerous products, the power to prohibit sales without these warnings is simply a logical extension of the federal power to protect public health by prohibiting the sale of the products themselves. As noted by Lamer C.J. in R. v. Swain, [1991] 1 S.C.R. 933, at p. 999, "it has long been recognized that there also exists a preventative branch of the criminal law power". This is also the implication of this Court's decision in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, where Estey J., although finding a detailed regulatory scheme with respect to production and content standards for malt liquor under the Food and Drugs Act, R.S.C. 1970, c. F-27, to be ultra vires Parliament, observed, at pp. 933-34:
That there is an area of legitimate regulations in respect of trade practices contrary to the interest of the community such as misleading, false or deceptive advertising and misbranding, is not under debate.
42 In this respect, it is significant that Parliament has already enacted numerous prohibitions against the manufacture, sale, advertisement and use of a great variety of products that Parliament deems, from time to time, to be dangerous or harmful. For example, the Hazardous Products Act, R.S.C., 1985, c. H-3, amended R.S.C., 1985, c. 24 (3rd. Supp.), s. 1, which has been found to be a valid exercise of the criminal law power by the Manitoba Court of Appeal in R. v. Cosman's Furniture (1972) Ltd. (1976), 32 C.C.C. (2d) 345, contains the following provisions:
2. In this Act,
"advertise", in relation to a prohibited product or restricted product,
includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of the product;
. . .
"controlled product" means any product, material or substance
specified by the regulations made pursuant to paragraph 15(1)(a) to be included in any of the classes listed in Schedule II;
"hazardous product" means any prohibited product, restricted product
or controlled product;
. . .
"prohibited product" means any product, material or substance
included in Part I of Schedule I;
"restricted product" means any product, material or substance
included in Part II of Schedule I;
. . .
4. (1) No person shall advertise, sell or import a prohibited product.
(2) No person shall advertise, sell or import a restricted product except as authorized by the regulations made under section 5.
5. The Governor in Council may make regulations
(a) authorizing the advertising, sale or importation of any restricted product and prescribing the circumstances and conditions under which and the persons by whom the restricted product may be advertised, sold or imported;
. . .
15. (1) Subject to section 19, the Governor in Council may make regulations
. . .
(d) prescribing the form and manner in which information shall be disclosed on a label and the manner in which a label shall be applied to a controlled product or container in which a controlled product is packaged;
44 Seen in this light, the only true distinction that can be drawn between the measures adopted under the Act and an outright prohibition on the sale or consumption of tobacco is with respect to the form employed by Parliament to combat the "evil" of tobacco consumption. However, such a distinction, unaccompanied by any evidence of colourability, is not constitutionally significant. Once it is conceded, as I believe it must be, that tobacco consumption has detrimental health effects and that Parliament's intent in enacting this legislation was to combat these effects, then the wisdom of Parliament's choice of method cannot be determinative with respect to Parliament's power to legislate. The goal in a pith and substance analysis is to determine Parliament's underlying purpose in enacting a particular piece of legislation; it is not to determine whether Parliament has chosen that purpose wisely or whether Parliament would have achieved that purpose more effectively by legislating in other ways; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 358 (per Wilson J.) and Morgentaler, supra, at p. 487:
Only when the effects of the legislation so directly impinge on some other subject matter as to reflect some alternative or ulterior purpose do the effects themselves take on analytic significance.
There is no evidence that the practical effect of the Act, or the lack thereof, reflects any "alternative or ulterior purpose".
The Appellants' Principal Arguments
45 The foregoing considerations, it seems to me, are sufficient to establish that the pith and substance of the Act is criminal law for the purpose of protecting public health and that Parliament accordingly has the legislative authority under s. 91(27) of the Constitution Act, 1867 to enact this legislation. However, I think it right to address directly the three principal arguments raised by the appellants in support of their submission that the Act is not valid as criminal law: first, that the conduct prohibited by the Act does not have an "affinity with a traditional criminal law concern"; second, that Parliament cannot criminalize an activity ancillary to an "evil" if it does not criminalize the "evil" itself; and, third, that the Act is more properly characterized as regulatory, not criminal, legislation. I will now address each of these arguments in turn.
i. Affinity of the Act with a Traditional Criminal Law Concern
47 In my view, this argument fails because it neglects the well-established principle that the definition of the criminal law is not "frozen as of some particular time"; see Zelensky, supra, at p. 951 (per Laskin C.J.). It has long been recognized that Parliament's power to legislate with respect to the criminal law must, of necessity, include the power to create new crimes. This was made clear as early as 1931, when the Privy Council upheld the validity of the Combines Investigation Act, R.S.C. 1927, c. 26, in PATA, supra. That legislation criminalized a wide array of commercial activities not hitherto perceived to have an affinity with criminal law concerns. However, Lord Atkin explained that this fact alone was not sufficient to preclude the application of the criminal law power. He stated, at pp. 323-24:
In their Lordships' opinion s. 498 of the Criminal Code and the greater part of the provisions of the Combines Investigation Act fall within the power of the Dominion Parliament to legislate as to matters falling within the class of subjects, "the criminal law including the procedure in criminal matters" (s. 91, head 27). The substance of the Act is by s. 2 to define, and by s. 32 to make criminal, combines which the legislature in the public interest intends to prohibit. The definition is wide, and may cover activities which have not hitherto been considered to be criminal. But only those combines are affected "which have operated or are likely to operate to the detriment or against the interest of the public, whether consumers, producers, or others"; and if Parliament genuinely determines that commercial activities which can be so described are to be suppressed in the public interest, their Lordships see no reason why Parliament should not make them crimes. "Criminal law" means "the criminal law in its widest sense": Attorney-General for Ontario v. Hamilton Street Ry. Co., [1903] A.C. 524. It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. . . . It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of "criminal jurisprudence"; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes. . . . [Emphasis added.]
Soon after that decision, in Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368, the Privy Council adopted similar reasoning to uphold a prohibition on price discrimination under the criminal law power. Later, this Court, following in large part the reasoning employed by the Privy Council in PATA, supra, sustained a prohibition of resale price maintenance under the criminal law power (Campbell v. The Queen, [1965] S.C.R. vii) and a federal law authorizing the courts to make orders prohibiting the continuation of illegal practices or to dissolve illegal mergers; see Goodyear Tire, supra. In the Goodyear Tire case, at p. 311, Rand J. reaffirmed the reasoning in the PATA case and made the following observation:
48 In my view, the reasoning in PATA and Goodyear Tire is directly applicable here. The simple fact that neither tobacco consumption nor tobacco advertising have been illegal in the past in no way precludes Parliament from criminalizing either of those activities today. Indeed, given the fact that the first medical reports linking cigarette smoking to disease did not emerge until the 1950s, and that governments have only recently been made aware of the truly devastating health consequences of tobacco consumption, it is clear that Parliament had no reason, before that time, to criminalize this activity. The evolution in medical knowledge since the 1950s has radically altered the social and political landscape, producing a growing consensus, both nationally and internationally, that tobacco consumption is a sui generis problem that can only be properly addressed with an array of innovative and multifaceted legislative responses. In Canada, the decision to criminalize tobacco advertising was made incrementally, as part of a 25-year public policy process, and only after Parliament had determined that there was compelling evidence concerning the health effects of tobacco consumption and that the variety of non-criminal measures then in place were not sufficiently effective in reducing consumption. It would be artificial, if not absurd, to limit Parliament's power to legislate in this emerging area of public health concern simply because it did not, and logically could not, legislate at an earlier time.
ii. The Ancillary Nature of the Prohibited Act
50 In my view, this argument fails because it cannot be reconciled with the recent jurisprudence of this Court. In both Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the Prostitution Reference), and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, this Court upheld the constitutionality of legislation that criminalized an ancillary activity without also criminalizing the underlying activity or "evil". In the Prostitution Reference, for example, this Court upheld the constitutionality of ss. 193 and 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the solicitation of clients for prostitution and the operation of bawdy houses, but did not, at the same time, prohibit prostitution itself. In reaching the conclusion that these provisions were constitutionally valid, Dickson C.J. reasoned as follows, at p. 1142:
While I recognize that Parliament has chosen a circuitous path, I find it difficult to say that Parliament cannot take this route. The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system. The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation. Unless or until this Court is faced with the direct question of Parliament's competence to criminalize prostitution, it is difficult to say that Parliament cannot criminalize and thereby indirectly control some element of prostitution -- that is, street solicitation. [Emphasis in original.]
In that case, Lamer J. (as he then was) also made the following observation, at p. 1191:
As I have noted above, prostitution itself is not a crime in Canada. Our legislators have instead, chosen to attack prostitution indirectly. The Criminal Code contains many prohibitions relating to the act of taking money in return for sexual services. Among the offences that relate to prostitution are the bawdy-house provisions, the procuring and pimping provisions, as well as other more general offences that indirectly have an impact on prostitution related activities; for example provisions such as disturbing the peace. In my view, these laws indicate that while on the face of the legislation the act of prostitution is not illegal, our legislators are indeed aiming at eradicating the practice.
A similar line of reasoning was employed by this Court in Rodriguez, supra, where the constitutionality of a prohibition against assisted suicide under s. 214(b) of the Criminal Code, R.S.C., 1985, c. C-46, was upheld despite the fact that suicide itself was, and is at present, not illegal in this country.
51 In my view, the reasoning in the Prostitution Reference and Rodriguez is directly applicable to the present cases. Although the manufacture, sale and consumption of tobacco has not been criminalized under the Act, it is clear that Parliament's underlying purpose in criminalizing tobacco advertising and promotion is to eradicate the practice. The fact that Parliament has chosen a "circuitous path" to accomplish this goal does not in any way lessen the constitutional validity of the goal. I emphasize once again that it is the pith and substance of the legislation, not Parliament's wisdom in choosing the legislative method, that is the touchstone in a division of powers analysis.
iii. The Creation of Exemptions Under the Criminal Law Power
53 In my view, this argument fails because it disregards the long-established principle that the criminal law may validly contain exemptions for certain conduct without losing its status as criminal law. As early as 1959, in Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497, this Court held that the Lord's Day Act, R.S.C. 1952, c. 171, which prohibited gambling on Sunday, was a valid exercise of the criminal law power despite the fact that s. 6 of that Act created an exemption for provinces which had passed legislation to the contrary. In upholding the validity of the Act, Rand J. explained, at pp. 509-10, that this exemption did not detract from the criminal nature of the legislation:
54 This principle was reiterated in Morgentaler v. The Queen, [1976] 1 S.C.R. 616, where this Court addressed the constitutionality of s. 251 of the Criminal Code, R.S.C. 1970, c. C-34. Under s. 251(1) of the Code, the intentional procurement of a miscarriage was declared to be unlawful. However, under s. 251(4) and (5), Parliament had also created an exemption for miscarriages carried out by qualified medical practitioners where the life of the woman was in danger. Laskin C.J., dissenting in the result but not on this issue, made it clear that the creation of such an exemption did not detract from the validity of the provision as criminal law, at p. 627:
55 Most recently, in R. v. Furtney, [1991] 3 S.C.R. 89, this Court reaffirmed Laskin C.J.'s conclusion. In Furtney, the Court addressed a challenge to s. 207 of the Criminal Code, R.S.C., 1985, c. C-46, which prohibited lotteries but created an exemption for provincial lotteries conducted in accordance with terms and conditions of licences issued by the Lieutenant Governor. The Court held that the Code provision was valid criminal law, even though it delegated regulatory power to the provincial Lieutenant Governors in Council to create exemptions. In reaching the conclusion that s. 207 was a valid exercise of the criminal law power, Stevenson J. stated, at p. 105:
I note that these very provisions were referred to as valid by Laskin C.J. in his dissenting judgment (the majority not addressing the matter) in Morgentaler v. The Queen, [1976] 1 S.C.R. 616. The Chief Justice (at p. 627) referred to Parliament's authority to introduce dispensations or exemptions from criminal law in determining what is and what is not criminal.
Stevenson J. expressed his agreement with Laskin C.J.'s view and gave the following rationale for his conclusion, at pp. 106-7:
The appellants question whether the criminal law power will sustain the establishment of a regulatory scheme in which an administrative agency or official exercises discretionary authority. In so doing they ask the question "referred to by Professor Hogg" in his Constitutional Law of Canada . . . at p. 415. Hogg suggests that the question is really one of colourability. . . . In my view the decriminalization of lotteries licensed under prescribed conditions is not colourable. It constitutes a definition of the crime, defining the reach of the offence, a constitutionally permissive exercise of the criminal law power, reducing the area subject to criminal law prohibition where certain conditions exist. I cannot characterize it as an invasion of provincial powers any more than the appellants were themselves able to do. [Emphasis added.]
57 For all the foregoing reasons, I am of the view that the Act is a valid exercise of the federal criminal law power. Having reached this conclusion, I do not find it necessary to address the Attorney General's further submission that the Act falls under the federal power to legislate for the peace, order and good government of Canada. Accordingly, I now proceed directly to a consideration of the Act's validity under the Charter.
2. The Canadian Charter of Rights and Freedoms
58 The Attorney General conceded that the prohibition on advertising and promotion under the Act constitutes an infringement of the appellants' right to freedom of expression under s. 2(b) of the Charter, and directed his submissions solely to justifying the infringement under s. 1 of the Charter. In my view, the Attorney General was correct in making this concession. This Court has, on a number of occasions, held that prohibitions against engaging in commercial expression by advertising infringe upon the freedom of expression in s. 2(b) of the Charter; see Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 766-67; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 976-78; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 241-45. On this general issue, then, there only remains the question whether this infringement is justified under s. 1, a matter to which I shall turn in a moment.
59 Before doing so, however, it is appropriate to draw attention to the fact that the Attorney General did not concede that s. 9 of the Act, which requires tobacco manufacturers to place an unattributed health warning on packages of these products, constitutes an infringement of the appellants' right to freedom of expression. In my view, the Attorney General was correct in not making this concession. However, since there is considerable overlap between my discussion of this issue and my discussion of s. 1, I shall for convenience address this distinct issue separately at the conclusion of my general s. 1 analysis.
The Legislative Objective and Context
60 Section 1 of the Charter guarantees the rights and freedoms set out therein "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". It is well established that the onus of justifying the limitation of a Charter right rests on the party seeking to have that limitation upheld, in this case the Attorney General. In Oakes, supra, this Court set out two broad criteria as a framework to guide courts in determining whether a limitation is demonstrably justified in a free and democratic society. The first is that the objective the limit is designed to achieve must be of sufficient importance to warrant overriding the constitutionally protected right or freedom. The second is that the measures chosen to achieve the objective must be proportional to the objective. The proportionality requirement has three aspects: the measures chosen must be rationally connected to the objective; they must impair the guaranteed right or freedom as little as possible; and there must be proportionality between the deleterious effects of the measures and their salutary effects.
61 The appellants have conceded that the objective of protecting Canadians from the health risks associated with tobacco use, and informing them about these risks, is pressing and substantial. Rather than focusing upon the objective, the appellants submit that the measures employed under the Act are not proportional to the objective. In adopting this strategy, they rely heavily upon Chabot J.'s rigorous application of the proportionality requirement at trial. There, Chabot J. equated the burden of proof under the s. 1 analysis to the burden in a civil trial, stating, at p. 515:
. . . the burden of proof of justification under s. 1 of the Charter rests on the party who seeks to uphold the limitation of a guaranteed right. This burden is the civil burden of proof, the balance of probabilities. However, this balance of probabilities must be applied rigorously and the evidence must be cogent and persuasive. . . .
63 This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case. The word "reasonable" in s. 1 necessarily imports flexibility. In a significant, but often neglected, passage from Oakes itself, Dickson C.J. warned against an overly formalistic approach to s. 1 justification, stating, at p. 139, that "[a]lthough the nature of the proportionality test will vary depending on the circumstances, in each case the courts will be required to balance the interests of society with those of individuals and groups". Shortly thereafter, he reaffirmed this warning in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69, where, referring to the Court's decision in Oakes, he stated:
The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.
Later, in R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 735, Dickson C.J. had occasion to elaborate more fully upon the nature of the Oakes inquiry, stating that it was "dangerously misleading to conceive of s. 1 as a rigid and technical provision". He noted at p. 735 that,
[f]rom a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation's constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication.
The role played by s. 1, he observed, at pp. 735-36, is to bring "together the fundamental values and aspirations of Canadian society" through the "dual function" of activating Charter rights and permitting such reasonable limits as a free and democratic society may have occasion to place upon them. In applying a "rigid or formalistic approach to the application of s. 1", he cautioned, at p. 737, the courts risk losing sight of the "synergetic relation" that exists between Charter rights and the context in which they are claimed. In United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at pp. 1489-90, I also stressed the importance of this "synergetic relation", and the resulting need to avoid what I called a "mechanistic approach" in the application of the s. 1 analysis:
In the performance of the balancing task under s. 1, it seems to me, a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.
For a similar contextual approach to the s. 1 analysis, see R. v. Jones, [1986] 2 S.C.R. 284, at p. 300; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 184-85; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591, at pp. 627-28; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355-56, 1380; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pp. 280-81; and Dickason v. University of Alberta, [1992] 2 S.C.R. 1103, at p. 1122.
66 Having conceded that the objective of protecting public health from the detrimental effects of tobacco consumption is pressing and substantial, the appellants submit, and Chabot J. agreed, that the facts respecting the harmful effect of tobacco are irrelevant to the application of the proportionality analysis. Chabot J. stated, at p. 491:
. . . much of the expert scientific evidence relating to the effects of tobacco on health, however voluminous and instructive, was nevertheless, with respect, irrelevant to the case and, in the humble view of the court, served merely to colour the debate unnecessarily.
With respect, I disagree. In my view, the nature and scope of the health problems raised by tobacco consumption are highly relevant to the s. 1 analysis, both in determining the appropriate standard of justification and in weighing the relevant evidence. In this respect, it is essential to keep in mind that tobacco addiction is a unique, and somewhat perplexing, phenomenon. Despite the growing recognition of the detrimental health effects of tobacco use, close to a third of the population continues to use tobacco products on a regular basis. At this point, there is no definitive scientific explanation for tobacco addiction, nor is there a clearly understood causal connection between advertising, or any other environmental factor, and tobacco consumption. This is not surprising. One cannot understand the causal connection between advertising and consumption, or between tobacco and addiction, without probing deeply into the mysteries of human psychology. Many of the workings of the human mind, and the causes of human behaviour, remain hidden to our understanding and will no doubt remain so for quite some time. In this respect, it is instructive to consider the view of the Surgeon General of the United States, who observed in his 1989 report entitled Reducing the Health Consequences of Smoking -- 25 Years of Progress -- A report of the Surgeon General, at pp. 512-13:
There is no scientifically rigorous study available to the public that provides a definitive answer to the basic question of whether advertising and promotion increase the level of tobacco consumption. Given the complexity of the issue, none is likely to be forthcoming in the foreseeable future.
67 It appears, then, that there is a significant gap between our understanding of the health effects of tobacco consumption and of the root causes of tobacco consumption. In my view, this gap raises a fundamental institutional problem that must be taken into account in undertaking the s. 1 balancing. Simply put, a strict application of the proportionality analysis in cases of this nature would place an impossible onus on Parliament by requiring it to produce definitive social scientific evidence respecting the root causes of a pressing area of social concern every time it wishes to address its effects. This could have the effect of virtually paralyzing the operation of government in the socio-economic sphere. As I noted in McKinney, supra, at pp. 304-5, predictions respecting the ramifications of legal rules upon the social and economic order are not matters capable of precise measurement, and are often "the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components". To require Parliament to wait for definitive social science conclusions every time it wishes to make social policy would impose an unjustifiable limit on legislative power by attributing a degree of scientific accuracy to the art of government which, in my view, is simply not consonant with reality. As LeBel J.A. observed in the Court of Appeal (at pp. 311-12):
Interpreted literally, mechanically, without nuance, the Oakes test and the burden of proof which it imposes on the state would most often negate its ability to legislate.
Moreover, such an approach misconceives the nature of a constitutional case such as this. It cannot be dealt with as if it were an ordinary civil trial. We are not dealing with a matter in which, for example, a particular litigant seeks to demonstrate that his tobacco consumption and the advertising of a manufacturer whose cigarettes he consumed caused his lung cancer or his emphysema. It is rather a question of determining the basis on which a legislator may choose to act, where the outcome is uncertain.
68 In several recent cases, this Court has recognized the need to attenuate the Oakes standard of justification when institutional constraints analogous to those in the present cases arise. In Irwin Toy, supra, at pp. 993-94, this Court stated:
. . . in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude.
. . .
When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function. . . .
In other cases, however, rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. For example, in justifying an infringement of legal rights enshrined in ss. 7 to 14 of the Charter, the state, on behalf of the whole community, typically will assert its responsibility for prosecuting crime whereas the individual will assert the paramountcy of principles of fundamental justice. There might not be any further competing claims among different groups. In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen, especially given their accumulated experience in dealing with such questions. . . .
70 Seen in this way, it is clear that the Act is the very type of legislation to which this Court has generally accorded a high degree of deference. In drafting this legislation, which is directed toward a laudable social goal and is designed to protect vulnerable groups, Parliament was required to compile and assess complex social science evidence and to mediate between competing social interests. Decisions such as these are properly assigned to our elected representatives, who have at their disposal the necessary resources to undertake them, and who are ultimately accountable to the electorate. As I observed in McKinney, supra, at p. 305:
71 Turning now to the nature of the right infringed under the Act, it is once again necessary to place the appellants' claim in context. This Court has recognized, in a line of freedom of expression cases dating back to Edmonton Journal, supra, that, depending on its nature, expression will be entitled to varying levels of constitutional protection. In Edmonton Journal, Wilson J. outlined the need for a contextual, as opposed to an abstract, approach to freedom of expression cases. She stated, at pp. 1355-56:
. . . a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.
In Rocket, supra, at pp. 246-47, McLachlin J. affirmed Wilson J.'s contextual approach:
While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.
72 The source of the "sensitive, case-oriented approach" referred to by McLachlin J. in Rocket is this Court's more fundamental recognition that the right to freedom of expression is not absolute and cannot, in all cases, override other rights and values. Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts. When these values come into conflict, as they often do, it is necessary for the courts to make choices based not upon an abstract, platonic analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. This the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even more fundamental values. In Keegstra, supra, at pp. 762-63, Dickson C.J. identified these fundamental or "core" values as including the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. When state action places such values in jeopardy, this Court has been careful to subject it to a searching degree of scrutiny. However, when the form of expression placed in jeopardy falls farther from the "centre core of the spirit", this Court has ruled restrictions on such expression less difficult to justify. As Dickson C.J. observed in Keegstra, supra, at p. 760:
73 In cases where the expression in question is farther from the "core" of freedom of expression values, this Court has applied a lower standard of justification. For example, in Keegstra, where a majority of this Court ruled that a prohibition on hate speech under s. 319(2) of the Criminal Code, R.S.C., 1985, c. C-46, was a justifiable limitation on freedom of expression, Dickson C.J. found that this limited infringement was justified because hate propaganda was a form of expression that was only remotely related to "core" free expression values. He noted, at p. 766:
74 This Court adopted a similar approach in R. v. Butler, [1992] 1 S.C.R. 452, where it found a prohibition upon publications whose dominant characteristic was the "undue exploitation of sex" under s. 163(8) of the Criminal Code, R.S.C., 1985, c. C-46, to be a justifiable infringement upon freedom of expression. In so ruling, this Court found it significant, at p. 500, that "the kind of expression which is sought to be advanced does not stand on an equal footing with other kinds of expression which directly engage the `core' of the freedom of expression values". The expression targeted by s. 163(8) was pornography, which is designed to promote sex for profit, and thus fell far from the "core" of freedom of expression values discussed by Dickson C.J. in Keegstra. The Court has adopted a similar approach with respect to prostitution, which was also accorded a lower level of protection in the Prostitution Reference, supra. In that case, Dickson C.J. stated, at p. 1136:
When a Charter freedom has been infringed by state action that takes the form of criminalization, the Crown bears the heavy burden of justifying that infringement. Yet, the expressive activity, as with any infringed Charter right, should also be analyzed in the particular context of the case. Here, the activity to which the impugned legislation is directed is expression with an economic purpose. It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.
76 The appellants, both of whom are large multinational corporations, spend millions of dollars every year to promote their products (in 1987 alone, RJR and Imperial spent over $75 million dollars on advertising and promotion); see RJR-MacDonald Inc., "Advertising and Promotion Spending (CND$)" (1976-1987); Imperial Tobacco Ltd., "Domestic Advertising Expense Summary" (1982-1987). The large sums these companies spend on advertising allow them to employ the most advanced advertising and social psychology techniques to convince potential buyers to buy their products. The sophistication of the advertising campaigns employed by these corporations, in my view, undermines their claim to freedom of expression protection because it creates an enormous power differential between these companies and tobacco consumers in the "marketplace of ideas". As noted by M. L. Rothschild in Advertising: From Fundamentals to Strategies (1987), at p. 8, and cited in Dr. Richard W. Pollay, "The Functions and Management of Cigarette Advertising", Report, prepared July 27, 1989, at p. 2:
Advertising is salesmanship, and is paid for by a firm, a person or a group with a particular point of view. The message advocates that point of view, and its goal is to create awareness, attitude, or behaviour that is favorable to that advocacy position. The message attempts to inform and to persuade; it is intentionally biased, and there is no intent to present a balanced point of view.
The power differential between advertiser and consumer is even more pronounced with respect to children who, as this Court observed in Irwin Toy, at p. 987, are "particularly vulnerable to the techniques of seduction and manipulation abundant in advertising"; see, e.g., expert report of Dr. Michael J. Chandler, "A Report on the Special Vulnerabilities of Children and Adolescents" (1989), at p. 19; expert report of Simon Chapman and Bill Fitzgerald, "Brand Preference and Advertising Recall in Adolescent Smokers: Some Implications for Health Promotion" (1982), 72 Am. J. Pub. Health 491; Gerald J. Gorn and Renée Florsheim, "The Effects of Commercials for Adult Products on Children" (1985), 11 J. Consumer Res. 962. In this respect, it is critical to keep in mind Dickson C.J.'s reminder in Edwards Books, supra, at p. 779:
77 I conclude, therefore, that an attenuated level of s. 1 justification is appropriate in these cases. Taking into account both the nature of the right and the nature of the legislation in issue, I am satisfied that LeBel J.A. was correct in deciding that the Attorney General need only demonstrate that Parliament had a rational basis for introducing the measures contained in this Act. With these observations firmly in mind, I now proceed to an application of the proportionality test.
78 As I mentioned at the outset of my Charter discussion, the appellants rely heavily on Chabot J.'s factual findings in support of their argument that the measures employed under the Act are not proportional to the objective of reducing tobacco consumption. Briefly, Chabot J.'s principal factual findings at trial were as follows. With respect to a rational connection between the measures adopted under the Act and the objective of reducing tobacco consumption, he found, at p. 512, that "the connection which the state seeks to establish between health protection and tobacco advertising is tenuous and speculative" and, at p. 513, that "[t]he virtual totality of the scientific documents in the state's possession at the time the Act was passed do not demonstrate that a ban on advertising would affect consumption". With respect to whether the measures impair rights as little as possible, Chabot J. concluded, at pp. 515-16, as follows:
To the extent that the purpose of the law is to eliminate any message constituting an inducement addressed to any Canadian citizen, the only means to achieve this is necessarily a total ban on such messages. To the extent that the purpose is to protect young people from inducements to smoke, a total ban on all advertising of any kind, directed at any audience, goes far beyond that purpose. Likewise, if the objective is to enhance Canadians' awareness of the harmful effects of cigarettes, the total ban on advertising is out of all proportion to the objective, while the imposition of unattributed messages goes beyond what was necessary to achieve the objective, all the more so as there is no impact study on the effectiveness of these unattributed messages as compared to messages attributed to the Department of National Health and Welfare.
79 In my view, Chabot J. erred in finding that there was insufficient evidence to satisfy the proportionality requirement, and the majority of the Court of Appeal was correct to interfere with his findings and reevaluate the evidence. It is, of course, well-established that an appellate court may only interfere with the factual findings of a trial judge where the trial judge made a manifest error and where that error influenced the trial judge's final conclusion or overall appreciation of the evidence; see Dorval v. Bouvier, [1968] S.C.R. 288; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 358. However, it is important to emphasize that the trial findings on which the appellants rely are not the type of factual findings that fall within the general rule of appellate "non-interference" discussed in these cases. The appellate "non-interference" rule reflects the traditional recognition that a trial judge is better placed than an appellate court to assess and weigh so-called "adjudicative" facts or, in John Hagan's terms, "who did what, where, when, how and with what motive or intent"; see John Hagan, "Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation" in Robert J. Sharpe, ed., Charter Litigation (1987), at p. 215. Fauteux J. explained the rationale for the non-interference rule in Dorval, supra, at p. 293, as follows:
[TRANSLATION] Because of the privileged position of the judge who presides at the trial, who sees and hears the parties and witnesses and who assesses their evidence, it is an established principle that his opinion is to be treated with the utmost deference by the appellate court, whose duty it is not to retry the case nor to interfere by substituting its own assessment of the evidence for that of the trial judge, except in the case of a clear error on the face of the reasons of the judgment appealed from.
However, the privileged position of the trial judge does not extend to the assessment of "social" or "legislative" facts that arise in the law-making process and require the legislature or a court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour. As Ann Woolhandler observes in "Rethinking the Judicial Reception of Legislative Facts" (1988), 41 Vand. L. Rev. 111, at pp. 114 and 123, conclusions of this nature are most accurately characterized as social or legislative facts because they involve predictions about the social effects of legal rules, which are invariably subject to dispute:
In contrast to adjudicative facts, legislative facts do not presume a pre-existing legal norm because by definition such facts are used to create law. A paradigmatic legislative fact is one that shows the general effect a legal rule will have, and is presented to encourage the decisionmaker to make a particular legal rule. There is less a sense that legislative facts are true or knowable because such facts are predictions, and, moreover, typically predictions about the relative importance of one factor in causing a complex phenomenon.
. . .
Legislative facts are predictions about the effects of legal rules and are by their nature disputable. The creation and reception of legislative facts will be governed by pre-existing presumptions about desirable effects and their causes. Legislative facts, moreover, cannot neutrally provide answers to legal questions because by definition legislative facts are used to make the rules that pose the questions. Although legislative facts provide information for the pragmatic balancing of desirable effects, these "facts" cannot tell us what effects are desirable, or how to weigh them.
80 In my view, the causal connection between tobacco advertising and consumption, or the lack thereof, is a paradigm example of a legislative or social fact. While a trial judge is in a privileged position with respect to adjudicative fact-finding, this is not the case with legislative or social fact-finding, where appellate courts and legislatures are as well placed as trial judges to make findings. Certainly, one does not have to be a trial judge to come to general conclusions about the effect of legal rules on human behaviour. Moreover, given the intimate relation that exists between legislative facts and the creation of legal rules, there is also a strong policy reason for suspending the non-interference rule with respect to legislative or social facts. As Brian G. Morgan notes in "Proof of Facts in Charter Litigation" in Charter Litigation, supra, at p. 186, the rigid application of that rule would deny appellate courts their proper role in developing legal principles of general application:
. . . where legislative and constitutional facts are considered and determined at the trial court level, it is important that reference to the traditional division between fact and law in fixing the scope of appellate review not lead the appellate court to treat as conclusive the findings of the trial judge. First, the traditional and accepted expertise of the trial court in determining adjudicative facts does not extend to the less familiar and inherently less certain task of determining legislative or constitutional facts. Secondly, unless the appellate courts retain sufficient discretion to review findings of the trial court on matters of legislative or constitutional facts, the appellate courts will be denied their proper role of developing principles in this area of the law to be applied in the multitude of individual cases which come before trial judges.
The United States Court of Appeals for the Fifth Circuit, in Dunagin v. City of Oxford, Mississippi, 718 F.2d 738 (1983) (en banc), cert. denied, 467 U.S. 1259 (1984), a case involving the constitutionality of a ban on liquor advertising, made the same point, at pp. 748-49, n. 8, in slightly more colourful terms:
There are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial. Suppose one trial judge sitting in one state believes a sociologist who has found no link between alcohol abuse and advertising, while another trial judge sitting in another state believes a psychiatrist who has reached the opposite conclusion. A similar situation actually occurred here. Should identical conduct be constitutionally protected in one jurisdiction and illegal in another? Should the fundamental principles of equal protection delivered in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 96 L.Ed. 873 (1954), be questioned if the sociological studies regarding racial segregation set out in the opinion's footnote 11 are shown to be methodologically flawed? Should the constitutionality of the property tax as a means of financing public education, resolved in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), depend on the prevailing views of educators and sociologists as to the existence of a cost-quality relationship in education? Does capital punishment become cruel and unusual when the latest regression models demonstrate a lack of deterrence? The social sciences play an important role in many fields, including the law, but other unscientific values, interests and beliefs are transcendent.
81 For the foregoing reasons, I conclude that an appellate court may interfere with a finding of a trial judge respecting a legislative or social fact in issue in a determination of constitutionality whenever it finds that the trial judge erred in the consideration or appreciation of the matter. As applied to these cases, I find that, apart from his specific findings with respect to the credibility of witnesses and the probative value of reports, Chabot J.'s factual findings concerning the connection between tobacco advertising and consumption are entitled to minimal deference by this Court. With this in mind, I proceed to the proportionality analysis.
82 The first step in the proportionality analysis requires the government to demonstrate that the legislative means chosen under the Act are rationally connected to the objective of protecting public health by reducing tobacco consumption. As I explained in discussing the contextual nature of the s. 1 analysis, it is unnecessary in these cases for the government to demonstrate a rational connection according to a civil standard of proof. Rather, it is sufficient for the government to demonstrate that it had a reasonable basis for believing such a rational connection exists; see McKinney, supra, at pp. 282-85; Irwin Toy, supra, at p. 994; Butler, supra, at p. 502. Wilson J. summarized the standard of justification under the rational connection analysis in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 291, as follows:
The Oakes inquiry into "rational connection" between objectives and means to attain them requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.
84 I begin with what I consider to be a powerful common sense observation. Simply put, it is difficult to believe that Canadian tobacco companies would spend over 75 million dollars every year on advertising if they did not know that advertising increases the consumption of their product. In response to this observation, the appellants insist that their advertising is directed solely toward preserving and expanding brand loyalty among smokers, and not toward expanding the tobacco market by inducing non-smokers to start. In my view, the appellants' claim is untenable for two principal reasons. First, brand loyalty alone will not, and logically cannot, maintain the profit levels of these companies if the overall number of smokers declines. A proportionate piece of a smaller pie is still a smaller piece. As the United States Court of Appeals for the Fifth Circuit, observed in Dunagin, supra, at p. 749:
It is beyond our ability to understand why huge sums of money would be devoted to the promotion of sales of liquor without expected results, or continue without realized results. No doubt competitors want to retain and expand their share of the market, but what businessperson stops short with competitive comparisons? It is total sales, profits, that pay the advertiser; and dollars go into advertising only if they produce sales.
85 I observe in passing, based upon the recent jurisprudence of this Court, that the foregoing common sense observation is sufficient in itself to establish a rational connection in these cases. In this respect, there is a direct analogy between the present case and Butler, supra. In Butler, where this Court addressed the constitutionality of a prohibition on "obscene" material under the Criminal Code, R.S.C., 1985, c. C-46, the critical question raised at the rational connection stage was whether a rational connection existed between "obscene" material and violence against women. There was little or no evidence adduced to establish such a causal connection in a definitive manner. Indeed, in reviewing the evidence in that case, which consisted largely of two conflicting government reports, Sopinka J. observed, at p. 501, that "the literature of the social sciences remains subject to controversy" and that the social science evidence was "inconclusive". Nonetheless, Sopinka J. decided, at p. 502, that a common sense analysis was sufficient to satisfy the rational connection requirement:
While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.
In reaching this conclusion, Sopinka J., at p. 502, relied heavily on the following statement by the Meese Commission in its report (Attorney General's Commission on Pornography, Final Report (1986), vol. 1, at p. 326), regarding the effects of pornography:
86 In my view, a similar type of analysis is applicable here. In his 1989 report, Reducing the Health Consequences of Smoking -- 25 Years of Progress -- A report of the Surgeon General, supra, at p. 512, the Surgeon General of the United States conceded that there have been no "scientifically rigorous" studies that prove a causal link between advertising and promotion of tobacco products and consumption, and observed that "[g]iven the complexity of the issue, none is likely to be forthcoming in the foreseeable future" (pp. 512-13). However, he went on to make the following observation, at p. 513:
The most comprehensive review of both the direct and indirect mechanisms concluded that the collective empirical, experiential, and logical evidence makes it more likely than not that advertising and promotional activities do stimulate cigarette consumption. However, that analysis also concluded that the extent of influence of advertising and promotion on the level of consumption is unknown and possibly unknowable (Warner 1986b). This influence relative to other influences on tobacco use, such as peer pressure and role models, is uncertain. Although its effects are not wholly predictable, regulation of advertising and promotion is likely to be a prominent arena for tobacco policy debate in the 1990s. In part this reflects the high visibility of advertising and promotion; in part it reflects the perception that these activities constitute an influence on tobacco consumption that is amenable to government action. [Emphasis added.]
87 However, it is not necessary to rely solely upon common sense to reach this conclusion because there was, in any event, sufficient evidence adduced at trial to bear out the rational connection between advertising and consumption. In this respect, I find it significant that Chabot J. made specific reference in his reasons to only two pieces of evidence. First, he considered at length a 1989 report of the New Zealand Toxic Substances Board entitled Health or Tobacco: An End to Tobacco Advertising and Promotion (1989), where the Board had reviewed the effect of advertising restrictions in 33 countries, and had concluded that there was a correlation between the degree of restrictions imposed in each of these countries and the relative decline in tobacco consumption. Chabot J. found the Report to be of no probative value on the following grounds, at p. 513:
With respect to the T.S.B. report, the court can only note that it contains serious methodological errors and a lack of scientific rigour which renders it for all intents and purposes devoid of any probative value. It is a report with an obvious point of view and its conclusions reflect that point of view. In this regard, the court agrees entirely with the analysis of the report made by RJR's counsel in his argument . . . and concludes that the T.S.B. report, as an extrinsic document, is of no probative value.
89 Many of these conclusions are borne out by a simple reading of an extensive marketing research study commissioned by Imperial Tobacco Ltd. in 1986, entitled Project Viking. In the introduction to the study, the authors refer to the fact that increasing numbers of smokers are quitting as a "problem". They also observe that, in light of these declining numbers, the tobacco companies must direct their marketing efforts towards "expanding the market, or at very least forestalling its decline". They then indicate the objectives of Project Viking, vol. I: A Behavioural Model of Smoking, which they describe as follows:
Background and Objectives
It is no exaggeration to suggest that the tobacco industry is under siege. The smoker base is declining, primarily as a function of successful quitting. And the characteristics of new smokers are changing such that the future starting level may be in question. There is a constant stream of anti-smoking publicity in the media. Not all of this is soundly supported, but it gains legitimacy in the fact that there have been no responses from the tobacco industry in counterpoint.
Within this somewhat alarming view of the mid-term future, Imperial Tobacco is embarking on a proactive program. Perhaps for the first time, the mandate under consideration is not limited simply to maximizing the ITL franchises; it is now to include as well serious attempts to combat those forces aligned in an attempt to significantly diminish the size of the tobacco market in Canada.
This is the underpinning of Project Viking. There are, in fact, two components to the program, each having its own purposes, but also overlapping with the other in informational areas:
Project Pearl is directed at expanding the market, or at very least forestalling its decline. It examines attitudes and issues with the potential to be addressed via advocacy. It also looks at the needs of smokers specifically.
Project Day represents the tactical end by which ITL may achieve competitive gains within the market of today and in the future. Unmet needs of smokers that could be satisfied by new or modified products, products which could delay the quitting process, are pursued. [Emphasis added.]
As LeBel J.A. noted in the Court of Appeal, at p. 324, this document "indicates the objectives of the program: if not to expand the market, then at least to retain it, and also to preserve the company's market share". In Project Viking, vol. III: Product Issues, the need for an "advocacy thrust" is emphasized:
Unsuccessful Quitters are moved disproportionately by physical reactions and social forces to stop smoking (but health remains the most often specified reason). Short-term Quitters very often point to expense, which often will be a transient reason itself, not compelling enough to keep them out of the tobacco market. Health is also of major concern to them.
Strategically, it would seem that reducing quitting is the most viable approach. But it would also seem that a product solution may not be sufficient on its own. An advocacy thrust may be necessary; disaffected smokers do need some reassurance that they are not social pariahs. [Emphasis added.]
91 Apart from the emphasis on "reassuring" smokers, it is also possible to discern from these marketing documents a recognition that tobacco companies must target the young in order to ensure the continued maintenance of the tobacco market at its current size. I find it significant that, in these documents, strategies to attract the young are usually accompanied by extensive discussions concerning the "image" of the product. For example, the 1978 "Business Plans of RJR-MacDonald Inc. and International Plans" identified as "Prime Prospects" new smokers entering the cigarette market who want the positive, masculine image of this product. Later, in a 1987 RJR-MacDonald Inc. document entitled "Export "A" Brand Long-Term Strategy", reference is made under the title "Whose Behaviour Are We Trying to Affect?" to "18-34; Emphasis 18-24 (new users)" and to "High school -- some post secondary education". It continues:
Psychographics:
Young adults who are currently in the process of establishing their independence and their position in society. They look for peer group acceptance in their brand selection, and may often be moderate or conservative in their choices. As young adults they look for symbols that will help to reinforce their independence and individuality.
Mr. P. Hoult, ex-CEO of Imperial, testified at trial that lifestyle advertising is designed to create certain associations in the minds of consumers, and in the case of EXPORT cigarettes, an association with enjoyment, outdoors and youth. Similarly, in "Overview 1988", an internal document prepared by Imperial, it was stated that one of the philosophies governing its marketing activities was to
[s]upport the continued social acceptability of smoking through industry and/or corporate action (e.g. product quality, positive lifestyle advertising, selective field activities and marketing public relations programs).
One of the other stated objectives, "Overall Marketing Objectives" in "Overall Market Conditions 1988", was as follows:
RE-ESTABLISH clear distinct images for ITL brands with particular emphasis on relevance to younger smokers. Shift resources substantially in favour of avenues that allow for the expression and reinforcement of these image characteristics. [Emphasis in original.]
92 The internal marketing documents introduced at trial strongly suggest that the tobacco companies perceive advertising to be a cornerstone of their strategy to reassure current smokers and expand the market by attracting new smokers, primarily among the young. This conclusion is given added force by a number of reports introduced at trial, to which Chabot J. made no reference, which attest to the causal connection between tobacco advertising and consumption. In a report entitled "The Functions and Management of Cigarette Advertising", Dr. Richard W. Pollay, an historian and marketing professor at the University of British Columbia, concluded that advertising and promotional activities serve to change people's perceptions, creating more positive attitudes and serve as a reinforcement for smokers and a temptation and teacher of tolerance for non-smokers. He stated:
The research and strategic thinking identifies the psychological needs, wants and interests of target, and leads to the creation of a strategic "positioning" of the products to offer them in ways that promise satisfactions relevant to the targets' personalities and preferences. For starter brands, images are created to communicate independence, freedom and peer acceptance to young targets. The advertising images portray smokers as attractive and autonomous, accepted and admired, athletic and at home in nature. For `lighter' brands directed at smokers with health concerns, ads image a sense of well being, harmony with nature, and a consumer's self image as intelligent.
. . .
Advertising and promotional activities and communication serve to induce many changes in the public's perceptions, creating: more positive attitudes toward smoking and smokers; less consciousness and fear of any unhealthy consequences of smoking; a stronger self-image among smokers; more confidence of some social support for smoking; and perceptions that smoking is a cultural commonplace to be taken for granted. To smokers it is a reminder and reinforcer, while to non-smokers it is a temptation and a teacher of tolerance. [Emphasis added.]
Similarly, in a report entitled "Effects of Cigarette Advertising on Consumer Behavior", Dr. Joel B. Cohen, a professor of marketing at the University of Florida, observed, at p. 44, that tobacco advertising targets both non-smokers and the young, who are particularly vulnerable to advertising techniques:
There is ample documentation as to the effectiveness of cigarette advertising. Cigarette advertising achieves essential communications goals that are almost universally agreed to increase the likelihood of purchase, and it does so for deliberately targeted groups including adolescent males and females and health concerned smokers. Both of these groups are particularly vulnerable to the types of appeals used.
Cigarette advertising cannot be created so that it is only effective for brand switching. The ads are developed (and researched) to insure that they are maximally effective against targeted segments. Nonsmokers in those segments (e.g., young males) have similar motivations and concerns, and there is no way to lower a "magic curtain" around them in order to shield them from the enticement of such advertising. ["Only" emphasized in original; other emphasis added.]
In yet another report, entitled "A Report on the Special Vulnerabilities of Children and Adolescents", supra, at pp. 17-18, Dr. Michael J. Chandler, a psychologist, concluded that the cognitive and socio-emotional immaturities of both children and adolescents makes them vulnerable to the influence of cigarette advertising because they lack the ability to evaluate the messages being presented:
. . . it is an essential truism that tobacco companies cannot maintain their current levels of profit unless they can successfully entice new generations to smoke cigarettes. Whether by accident or design, existing cigarette advertising practices appear strategically tailored to accomplish this questionable initiation process.
94 On the basis of the foregoing evidence, I conclude that there is a rational connection between the prohibition on advertising and consumption under ss. 4, 5, 6 and 8 of the Act and the reduction of tobacco consumption. I am comforted in this conclusion by the fact that a number of American courts have also recognized the existence of a rational connection between advertising and consumption. I note that in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), at p. 569, the Supreme Court of the United States found an "immediate connection between advertising and demand for electricity" and therefore a direct link between the ban on advertising and the state interest in conservation. The court continued:
Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order.
Similarly, in Oklahoma Telecasters Ass'n v. Crisp, 699 F.2d 490 (1983), at p. 501, (rev'd on other grounds sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984)), the Court of Appeals for the Tenth Circuit observed that "the record does not demonstrate that Oklahoma's laws have any direct effect on the consumption of alcohol" but concluded:
. . . prohibitions against the advertising of alcoholic beverages are reasonably related to reducing the sale and consumption of those beverages and their attendant problems. The entire economy of the industries that bring these challenges is based on the belief that advertising increases sales. We therefore do not believe that it is constitutionally unreasonable for the State of Oklahoma to believe that advertising will not only increase sales of particular brands of alcoholic beverages but also of alcoholic beverages generally. The choice of the Oklahoma legislature, and its people with respect to the constitutional provision, is not unreasonable, and does directly advance Oklahoma's interest in reducing the sale, consumption, and abuse of alcoholic beverages.
This "common-sense" approach to causation was also applied in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (finding that a ban on highway billboards was reasonably related to highway safety despite a lack of evidence in the record demonstrating this connection); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (finding that a ban on casino advertising was rationally connected to the government objective to reduce demand for gambling despite a lack of evidence on the record); and Dunagin, supra, (finding that a ban on alcohol advertising directly advanced the legislative goal of reducing alcohol consumption despite a lack of evidence).
96 In my view, the appellants' argument fails for the same reasons that I have discussed throughout my s. 1 analysis. The relevance of context cannot be understated in s. 1 balancing, particularly at the minimal impairment stage. This Court has on many occasions stated that the degree of required fit between means and ends will vary depending upon both the nature of the right and the nature of the legislation. As Dickson C.J. stated in the Prostitution Reference, supra, at p. 1136:
When a Charter freedom has been infringed by state action that takes the form of criminalization, the Crown bears the heavy burden of justifying that infringement. Yet, the expressive activity, as with any infringed Charter right, should also be analyzed in the particular context of the case.
Thus, the minimal impairment requirement does not impose an obligation on the government to employ the least intrusive measures available. Rather, it only requires it to demonstrate that the measures employed were the least intrusive, in light of both the legislative objective and the infringed right. As Sopinka J. noted in Butler, supra, at pp. 504-5:
97 Taking into account the legislative context, it is my view that the measures adopted under the Act satisfy the Oakes minimal impairment requirement. It must be kept in mind that the infringed right at issue in these cases is the right of tobacco corporations to advertise the only legal product sold in Canada which, when used precisely as directed, harms and often kills those who use it. As I discussed above, I have no doubt that Parliament could validly have employed the criminal law power to prohibit the manufacture and sale of tobacco products, and that such a prohibition would have been fully justifiable under the Charter. There is no right to sell harmful products in Canada, nor should there be. Thus, in choosing to prohibit solely the advertisement of tobacco products, it is clear that Parliament in fact adopted a relatively unintrusive legislative approach to the control of tobacco products. Indeed, the scope of conduct prohibited under the Act is narrow. Under the Act, tobacco companies continue to enjoy the right to manufacture and sell their products, to engage in public or private debate concerning the health effects of their products, and to publish consumer information on their product packages pertaining to the content of the products. The prohibition under this Act serves only to prevent these companies from employing sophisticated marketing and social psychology techniques to induce consumers to purchase their products. This type of expression, which is directed solely toward the pursuit of profit, is neither political nor artistic in nature, and therefore falls very far from the "core" of freedom of expression values discussed by this Court in Keegstra, supra.
98 Furthermore, there was ample evidence introduced by the Attorney General at trial demonstrating that a full prohibition of tobacco advertising is justified and necessary. In enacting this legislation, Parliament came to the conclusion that all advertising stimulates consumption and that a full prohibition upon advertising is therefore necessary to reduce consumption effectively. Parliament reached this conclusion only after many years of careful study and reflection. As I mentioned in my discussion of the criminal law power, the measures adopted under the Act were the product of an intensive 20-year public policy process, which involved extensive consultation with an array of national and international health groups and numerous studies, and educational and legislative programs. Over the course of this 20-year period, the government adopted an incremental legislative approach by experimenting with a variety of less intrusive measures before determining that a full prohibition on advertising was necessary. As early as 1969, the Standing Committee of Health and Welfare and Social Affairs recommended a full prohibition in its Report of the Standing Committee on Health, Welfare and Social Affairs on Tobacco and Cigarette Smoking, supra, at pp. 52-53, suggesting the following legislative solution:
One year from enactment of legislation
--Complete elimination of free distribution of cigarettes and of all coupon and premium schemes.
--No cigarette advertising on television or radio before 10 p.m.
--Warning on all cigarette packages and cartons, in all cigarette advertising and promotional materials and on all cigarette vending machines.
--Government-authorized statements of tar and nicotine levels on all cigarette packages and cartons, in all cigarette advertising and promotional materials and on all cigarette vending machines.
Two years from enactment of legislation
--Prohibition of cigarette advertising on television and radio.
--Prohibition of other than simple brand name advertisements in remaining media.
Four years from enactment of legislation
--Complete elimination of all cigarette promotional activities.
99 The reasonableness of Parliament's decision to prohibit tobacco advertising has been amply borne out by parallel developments in the international community before and after the passage of the Act. It is of great significance, in my view, that over 20 democratic nations have, in recent years, adopted complete prohibitions on tobacco advertising similar to those adopted under the Act, including Australia, New Zealand, Norway, Finland and France. It is also of significance that the constitutionality of full advertising prohibitions have been upheld by the French Conseil constitutionnel (Décision No. 90-283 DC (Jan. 8, 1991) declaring the Loi no 91-32 relative à la lutte contre le tabagisme et l'alcoolisme, which prohibits all direct and indirect tobacco advertising), to be constitutionally valid and by American courts (upholding full prohibitions on alcohol advertising and gambling advertising as a reasonable limitation on freedom of expression under the United States Constitution in Central Hudson, supra; Oklahoma Telecasters, supra; Metromedia, supra; Posadas, supra; Dunagin, supra). The decisions of the American courts, which have traditionally been jealous guardians of the right to freedom of expression, are particularly instructive in this context because they demonstrate that the adoption of a full prohibition upon tobacco advertising is perceived as neither novel nor radical in other democratic nations. Given the background of the legislation and the overwhelming acceptance by other democratic countries of this type of prohibition as a reasonable means for combatting the serious evils flowing from the sale and distribution of tobacco products, it seems difficult to argue that the impugned legislation is not a reasonable limit on the appellants' rights demonstrably justified in a free and democratic society under s. 1 of the Charter.
100 Thus, in my view, there was more than enough evidence adduced at trial to justify the government's decision to institute a full prohibition on advertising and promotion. In their argument before this Court, the appellants made much of the fact that, during the course of the trial, a certificate was issued by the Clerk of the Privy Council pursuant to s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, stating that certain documents requested by the appellants, many of which were departmental memoranda sent to the Minister of Health and Welfare, constituted "confidence[s] of the Queen's Privy Council for Canada". As a result of the objection taken by the Privy Council, all references in the requested documents to an unidentified and alternative policy option were blacked out. The appellants speculate that this mysterious policy option was less intrusive than the measures adopted under the Act and argue on this basis that a full prohibition on advertising was not the only option available to the government.
101 Although I believe the appellants have raised a legitimate concern with respect to the effect of governmental claims to confidentiality in constitutional cases, I cannot accept that the resort by the government to Cabinet confidentiality in this context is fatal to this legislation. The appellants are right to argue that claims to confidentiality have the effect of withholding from the factual record evidence relating to available governmental options and thus compromise the ability of courts in some cases to evaluate the constitutionality of governmental actions properly. For the same reasons, the appellants are also right to argue that the exercise of this power will at times undermine attempts by the government to justify legislation under the Charter. The onus is on the government to establish minimal impairment and in this context it is difficult to understand why it could not make the information available. It is right to say, however, that during the course of the litigation the appellants studiously refrained from taking the steps that could have been taken to obtain the information available. It is significant that the appellants failed to challenge the Certificate issued by the Clerk of the Privy Council, as they were clearly entitled to do under s. 39 of the Canada Evidence Act; see, e.g., Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130 (C.A.); Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (C.A.). That said, the responsibility was ultimately that of the government, and in acting as it did, it put this Court in the difficult position of having to speculate about the contents of documents.
102 The real answer to the appellants' contention, however, is that such speculation cannot, in my view, displace the overwhelming evidence that the prohibition was a reasonable one. Even if it were true that the government was considering a less intrusive option prior to adopting the Act, I do not accept that this in any way undermines the Attorney General's argument that the Act minimally impairs the appellants' rights in light of the legislative objective. A partial prohibition on advertising would only have been required under the Charter if it had been clear to Parliament that some forms of advertising do not stimulate consumption, and that a full prohibition would accordingly be overbroad. However, the Attorney General demonstrated convincingly at trial that Parliament had a reasonable basis for believing, after 20 years of research and legislative experimentation, that all tobacco advertising stimulates tobacco consumption. As I explained in my rational connection discussion above, it is reasonable to conclude that all advertising stimulates consumption because all advertising serves to place tobacco products in the public eye and to give these products legitimacy, particularly among the young. Indeed, the appellants' emphasis in their own marketing documents on the colour and "look" of tobacco packages demonstrates that the companies themselves recognize that even purely "informational" advertising has an important effect on consumption.
104 Thus, it appears that Parliament had compelling reasons for rejecting a partial prohibition on advertising and instituting a full prohibition. In this light, it would be highly artificial for this Court to decide, on a purely abstract basis, that a partial prohibition on advertising would be as effective as a full prohibition. In my view, this is precisely the type of "line drawing" that this Court has identified as being within the institutional competence of legislatures and not courts. The Court made this clear in Irwin Toy, supra, where it stated, at p. 990, that the government should be given "a margin of appreciation to form legitimate objectives based on somewhat inconclusive social science evidence". In Irwin Toy, this Court found ss. 248 and 249 of the Consumer Protection Act, R.S.Q., c. P-40.1, which prohibited the use of commercial advertising directed at persons under 13 years of age, to be an infringement of s. 2(b) of the Charter, but upheld the legislation under s. 1. The Court there observed that there was conflicting social science evidence on whether the appropriate legislative line was to be drawn at 13 years of age or a younger age and, at p. 990, observed:
If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for another.
The Court decided that the government's choice of 13 years as the cutoff line was reasonable in light of the available evidence, and thus concluded, at p. 999:
105 This Court adopted a similar deferential approach in Edwards Books and Art Ltd., supra, in deciding that ss. 2(1) and 3(4) of the Retail Business Holidays Act, R.S.O. 1980, c. 453, which prohibited retail stores with more than seven employees or more than 5,000 square feet of retail space from carrying on business on Sundays, was a justifiable infringement of freedom of religion under s. 1 of the Charter because it provided a mandatory day of rest for workers who would otherwise be vulnerable to pressure from employers. In that case, the appellants, a group of large retail store owners, argued that the legislature had failed to adduce sufficient evidence demonstrating that the legislation minimally impaired their rights under the Charter. In particular, they argued that the legislature had not adduced evidence justifying the exemption for owners of retail stores with less than eight employees. In addressing their claim, Dickson C.J. first observed, at p. 769, that the state had adduced only one Ontario Law Reform Commission report (the 1970 Report on Sunday Observance Legislation) in support of the distinctions drawn in the legislation, and that the Report was over 15 years old. Despite the lack of evidence on the record, however, Dickson C.J. concluded that the legislature was entitled to a degree of deference in fashioning the legislative means to accomplish that goal. While observing that other legislative options were conceivable, including a Sabbatarian exemption, which would have impaired the rights of retail owners to a lesser degree, Dickson C.J. stated, at p. 782, that "[t]he courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line". He concluded, at p. 783:
I should emphasize that it is not the role of this Court to devise legislation that is constitutionally valid, or to pass on the validity of schemes which are not directly before it, or to consider what legislation might be the most desirable.
I concurred with Dickson C.J. in that case, and stressed, at p. 795, that it was necessary, in that context, to give the legislature "room to manoeuvre" in fashioning legislation designed to mediate between different social interests and to protect vulnerable groups. My approach was later accepted by this Court in R. v. Schwartz, [1988] 2 S.C.R. 443, at pp. 488-89; Andrews, supra, at pp. 184-86, 197-98; and Cotroni, supra, at p. 1495.
106 In my view, the Court's approach in Edwards Books and Irwin Toy is directly applicable to the present cases. Tobacco consumption is a multifaceted problem which requires intervention from a variety of public authorities on a number of different fronts. Parliament has adopted an incremental solution by prohibiting advertising without, at the same time, prohibiting the consumption, manufacture or sale of tobacco. In so doing, it has chosen a policy approach that strives to balance the rights of tobacco smokers and manufacturers against the legitimate public health concerns arising from tobacco addiction including, most importantly, the special vulnerabilities of young Canadians. In my view, it is not the role of this Court to substitute its opinion for that of Parliament concerning the ideal legislative solution to this complex and wide-ranging social problem. As McLachlin J. observed in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 248:
. . . some deference must be paid to the legislators and the difficulties inherent in the process of drafting rules of general application. A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive.
107 In reaching the conclusion that the Act satisfies the Oakes minimal impairment criterion, I am well aware of the statements of this Court in Ford, supra, and Rocket, supra, to the effect that a complete prohibition on a type of expression will be more difficult to justify than a partial prohibition. In my view, however, these decisions are fully distinguishable from the present cases. Once again, I emphasize the importance of context in the minimal impairment analysis. In Rocket, this Court found that a prohibition on advertising by dentists under s. 37(39) and (40) of Regulation 447 of the Health Disciplines Act, R.R.O. 1980, was an infringement of s. 2(b) and could not be justified under s. 1. McLachlin J. began her s. 1 analysis by observing, at p. 247, that restrictions on freedom of expression may be easier to justify in some contexts than others:
The expression limited by this regulation is that of dentists who wish to impart information to patients or potential patients. Their motive for doing so is, in most cases, primarily economic. Conversely, their loss, if prevented from doing so, is merely loss of profit, and not loss of opportunity to participate in the political process or the `marketplace of ideas', or to realize one's spiritual or artistic self-fulfilment: see Irwin Toy, supra, at p. 976. This suggests that restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b).
Despite her recognition of the importance of context, however, McLachlin J. struck down the legislative provision on the ground that it did not minimally impair the right to freedom of expression. She noted that the expression in question, the advertisement of dentistry services, had social value in the measure that it gave consumers access to information that would enable them to make informed health care choices. To the extent that the impugned legislative provision denied consumers such information, she observed, such an infringement could not lightly be dismissed. She stated, at p. 250:
It is easy to think of examples of expression not falling within the exceptions which should clearly be permitted. For example, it is conceded that dentists should be able to advertise their hours of operation and the languages they speak, information which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism.
She then stated, at p. 251:
109 A similar contrast can be drawn between the present cases and Ford, supra. In Ford, supra, this Court found that ss. 58, 69 and 205 to 208 of the Quebec Charter of the French Language, R.S.Q., c. C-11, which required public signs, posters and commercial advertising to be in the French language only, infringed s. 2(b) of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. The Court based this decision principally on the observation, at p. 780, that the prohibition was overbroad and thus did not satisfy the minimal impairment requirement:
. . . whereas requiring the predominant display of the French language, even its marked predominance, would be proportional to the goal of promoting and maintaining a French "visage linguistique" in Quebec and therefore justified under the Quebec Charter and the Canadian Charter, requiring the exclusive use of French has not been so justified.
110 However, there are two crucial distinctions between Ford and the present cases. First, although the infringed expression in Ford fell, as in the present cases, within the category of commercial expression, the nature and scope of the expression in these cases are quite different. While, in these cases, the Act prohibits only tobacco advertising, in Ford, the law prohibited all non-French commercial expression in Quebec. It was therefore much broader in scope than the prohibition under the Act. Moreover, while the Act prohibits expression that has little or no connection with "core" freedom of expression values, the commercial expression in Ford was intimately connected with such core values. The impugned law in that case represented an attempt by the government of Quebec to eradicate the commercial use in public of any language other than French. Given the close historical relationship between language, culture and politics in Canada, it cannot seriously be denied that the implications of this prohibition extended well beyond the commercial sphere and impacted upon the dignity of all minority language groups in Quebec. Indeed, the Court in Ford, supra, at p. 748, recognized this fact when it quoted with approval from Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 744, where the Court stated:
The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.... Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
In my view, it cannot seriously be argued that the "dignity" of the three large corporations whose rights are infringed in these cases is in any way comparable to that of minority group members dealt with in Ford.
111 A second important distinction between Ford and the present cases relates to the quantity of evidence adduced to satisfy the minimal impairment requirement. In Ford, no evidence was adduced to show why the exclusion of all languages other than French was necessary to achieve the objective of protecting the French language and reflecting the reality of Quebec society. Indeed, the Court in that case stated, at p. 779:
The section 1 and s. 9.1 [of the Quebec Charter] materials do not, however, demonstrate that the requirement of the use of French only is either necessary for the achievement of the legislative objective or proportionate to it. That specific question is simply not addressed by the materials. Indeed, in his factum and oral argument the Attorney General of Quebec did not attempt to justify the requirement of the exclusive use of French. He concentrated on the reasons for the adoption of the Charter of the French Language and the earlier language legislation, which, as was noted above, were conceded by the respondents.
By contrast, as I discussed above, the Attorney General in the present cases submitted a substantial body of documentation, drawn from national and international sources, to demonstrate that a full prohibition is rational and can be justified in a free and democratic society. I conclude that sufficient evidence was adduced to justify the Attorney General's submission.
Proportionality Between the Effects of the Legislation and the Objective
112 The third part of the proportionality analysis requires a proportionality between the deleterious and the salutary effects of the measures; see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 890-91. For the reasons I have given with respect to both the nature of the legislation and the nature of the right infringed in these cases, it is my view that the deleterious effects of this limitation, a restriction on the rights of tobacco companies to advertise products for profit that are inherently dangerous and harmful, do not outweigh the legislative objective of reducing the number of direct inducements for Canadians to consume these products.
The Unattributed Health Message Requirement
113 I now turn to the appellants' final argument, namely, that s. 9 of the Act constitutes an unjustifiable infringement of their freedom of expression by compelling them to place on tobacco packages an unattributed health message. I agree, to use Wilson J.'s phrase, that if the effect of this provision is "to put a particular message into the mouth of the plaintiff, as is metaphorically alleged to be the case here", the section runs afoul of s. 2(b) of the Charter; see Lavigne, supra, at p. 267. This view had earlier been adopted by the whole Court in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. There a labour arbitrator had, inter alia, required an employer, by way of remedy for unjustly dismissing an employee, to provide a letter of recommendation consisting only of uncontested facts found by the arbitrator. Speaking for the Court on this point, Lamer J. (as he then was) stated, at p. 1080: "freedom of expression necessarily entails the right to say nothing or the right not to say certain things".
115 I have, however, more fundamental problems accepting the appellants' contention that their s. 2(b) right was infringed by the requirement that a prescribed health warning must be placed on tobacco packages. It must be remembered that this statement is unattributed and I have some difficulty in seeing, in the context in which it was made, that it can in any real sense be considered to be attributed to the appellants. Simply because tobacco manufacturers are required to place unattributed warnings on their products does not mean that they must endorse these messages, or that they are perceived by consumers to endorse them. In a modern state, labelling of products, and especially products for human consumption, are subject to state regulation as a matter of course. It is common knowledge amongst the public at large that such statements emanate from the government, not the tobacco manufacturers. In this respect, there is an important distinction between messages directly attributed to tobacco manufacturers, which would create the impression that the message emanates from the appellants and would violate their right to silence, and the unattributed messages at issue in these cases, which emanate from the government and create no such impression. Seen in this way, the mandatory health warnings under s. 9 are no different from unattributed labelling requirements under the Hazardous Products Act, under which manufacturers of hazardous products are required to place unattributed warnings, such as "DANGER" or "POISON", and hazard symbols, such as skull and crossbones on their products; see Consumer Chemicals and Containers Regulations, SOR/88-556. I should add that the issue has ramifications for many other spheres of activity where individuals may in certain prescribed circumstances be required to place danger signs on facilities used by the public or on construction sites, and so on. This is not really an expression of opinion by the person in control of the facility or the construction site. It is rather a requirement imposed by the government as a condition of participating in a regulated activity.
117 In my view, the requirement that health warnings must be unattributed is also proportional to the objective of informing consumers about the risks of tobacco use. Unattributed warnings are rationally connected to this objective because they increase the visual impact of the warning. It is not difficult to see that bold unattributed messages on a tobacco package (such as, for example, "SMOKING CAN KILL YOU") are more striking to the eye than messages cluttered by subtitles and attributions. Moreover, the attribution of the warnings also tends to dilute the factual impact of the messages. As Brossard J.A. observed, at p. 383:
. . . it seems to me to leap to the eye that an "attributed" message can quickly become meaningless, or even ridiculous.
As an example, the message that is supposed to come from the "Surgeon-General" remains a message imputed to an abstract entity or a political body which obviously cannot by simple decree make something hazardous that otherwise would not be. This, it seems to me, rationally weakens and attenuates the message.
These considerations are particularly relevant with respect to Parliament's goal of protecting children, who constitute the largest single group of new smokers every year in this country. In a report submitted at trial ("A Report on the Special Vulnerabilities of Children and Adolescents", supra) Dr. Michael J. Chandler observed that adolescents are apt to disregard or disobey messages from perceived authority figures. On this basis, he concluded that attributed warnings would be less effective in deterring adolescents from smoking. He stated, at p. 19:
118 Thus, although the unattributed health warning requirement precludes large corporations from disseminating on their product packages the view that tobacco products are not harmful, I believe that any concern arising from this technical infringement of their rights is easily outweighed by the pressing health concerns raised by tobacco consumption. As noted by Dickson C.J. in Edwards Books, supra, at p. 759, the Charter does not require the elimination of "minuscule" constitutional burdens, and legislative action that increases the costs of exercising a right need not be prohibited if the burden is "trivial" or "insubstantial". In these cases, the only cost associated with the unattributed warning requirement is a potential reduction in profits. In my view, this is a cost that manufacturers of dangerous products can reasonably be expected to bear, given the health benefits of effective health warnings. As I stated in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 506-7:
In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations.
Disposition
119 I would dismiss the appeals with costs. I would answer the constitutional questions as follows:
1 Is the Tobacco Products Control Act, S.C. 1988, c. 20, wholly or in part within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91 of the Constitution Act, 1867; as being enacted pursuant to the criminal law power in s. 91(27) thereof; or otherwise?
Answer:The Tobacco Products Control Act is wholly within the legislative competence of Parliament and is validly enacted pursuant to the criminal law power in s. 91(27) of the Constitution Act, 1867. It is not necessary to consider whether Parliament may validly enact the Act under its power to make laws for the peace, order and good government of Canada.
2 Is the Tobacco Products Control Act wholly or in part inconsistent with the right of freedom of expression as set out in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, does it constitute a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof?
Answer: The Act is inconsistent with s. 2(b) of the Charter, but constitutes a reasonable limit to that right under s. 1 thereof.
The following are the reasons delivered by
120 SOPINKA J. -- I agree with Justice Major that the impugned legislation is not validly enacted under the criminal law power. In other respects, I concur in the reasons of Justice McLachlin.
The following are the reasons delivered by
121 CORY J. (dissenting) 2 -- Although I am in accordance with the reasons and conclusions of Justice La Forest, I am also in agreement with the reasons of Justice Iacobucci in so far as they declare a suspension of invalidity for one year.
The following is the judgment delivered by
122MCLACHLIN J. -- At issue in these cases is the validity of the Tobacco Products Control Act, S.C. 1988, c. 20 (the "Act"), a law which imposes a ban on all advertising of tobacco products in the Canadian media and requires tobacco manufacturers to print unattributed health warnings on the packages of all tobacco products.
124 The second issue is whether the ban and warning requirements violate the Canadian Charter of Rights and Freedoms. The Charter guarantees free expression, a guarantee which has been held to extend to commercial speech such as advertising: see Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; and Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232. I agree with La Forest J. that the prohibition on advertising and promotion of tobacco products constitutes a violation of the right to free expression as the Attorney General conceded. Unlike La Forest J., I take the view that s. 9 of the Act, which requires tobacco manufacturers to place an unattributed health warning on tobacco packages, also infringes the right of free expression. As La Forest J. notes in para. 113, this Court has previously held that "freedom of expression necessarily entails the right to say nothing or the right not to say certain things": Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1080, per Lamer J. (as he then was). Under s. 9(2), tobacco manufacturers are prohibited from displaying on their packages any writing other than the name, brand name, trade mark, and other information required by legislation. The combination of the unattributed health warnings and the prohibition against displaying any other information which would allow tobacco manufacturers to express their own views, constitutes an infringement of the right to free expression guaranteed by s. 2(b) of the Charter.
125 The only remaining question is whether these infringements of the right of free expression are saved under s. 1 of the Charter, as being reasonable and "demonstrably justified in a free and democratic society". Acknowledging that the evidence of justification is problematic, La Forest J. concludes that it nevertheless suffices to justify the infringement of the right of free expression, given the importance of the legislative goal, the context of the law and the need to defer to Parliament on such an important and difficult issue. With respect, I cannot agree. I share the trial judge's view that the Attorney General of Canada has failed to establish justification under s. 1 for ss. 4, 8 and 9 of the Act, those provisions which impose a total advertising ban, prohibit trade mark usage on articles other than tobacco products and mandate the use of unattributed health warnings on tobacco packaging. Because I do not believe that these provisions are severable from ss. 5 and 6 of the Act, which pertain to restrictions on promotion and trade mark usage, I find ss. 4, 5, 6, 8, and 9 to be invalid, leaving the remainder of the Act intact except in so far as it relates to the invalid provisions.
1 The Test for Justification under Section 1 of the Charter
126 I agree with La Forest J. that "[t]he appropriate `test' . . . in a s. 1 analysis is that found in s. 1 itself" (para. 62). The ultimate issue is whether the infringement is reasonable and "demonstrably justified in a free and democratic society". The jurisprudence laying down the dual considerations of importance of objective and proportionality between the good which may be achieved by the law and the infringement of rights it works, may be seen as articulating the factors which must be considered in determining whether a law that violates constitutional rights is nevertheless "reasonable" and "demonstrably justified". If the objective of a law which limits constitutional rights lacks sufficient importance, the infringement cannot be reasonable or justified. Similarly, if the good which may be achieved by the law pales beside the seriousness of the infringement of rights which it works, that law cannot be considered reasonable or justified. While sharing La Forest J.'s view that an overtechnical approach to s. 1 is to be eschewed, I find no conflict between the words of s. 1 and the jurisprudence founded upon R. v. Oakes, [1986] 1 S.C.R. 103. The latter complements the former.
127 This said, there is merit in reminding ourselves of the words chosen by those who framed and agreed upon s. 1 of the Charter. First, to be saved under s. 1 the party defending the law (here the Attorney General of Canada) must show that the law which violates the right or freedom guaranteed by the Charter is "reasonable". In other words, the infringing measure must be justifiable by the processes of reason and rationality. The question is not whether the measure is popular or accords with the current public opinion polls. The question is rather whether it can be justified by application of the processes of reason. In the legal context, reason imports the notion of inference from evidence or established truths. This is not to deny intuition its role, or to require proof to the standards required by science in every case, but it is to insist on a rational, reasoned defensibility.
128 Second, to meet its burden under s. 1 of the Charter, the state must show that the violative law is "demonstrably justified". The choice of the word "demonstrably" is critical. The process is not one of mere intuition, nor is it one of deference to Parliament's choice. It is a process of demonstration. This reinforces the notion inherent in the word "reasonable" of rational inference from evidence or established truths.
129 The bottom line is this. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning. The task is not easily discharged, and may require the courts to confront the tide of popular public opinion. But that has always been the price of maintaining constitutional rights. No matter how important Parliament's goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.
(b) The Factors to be Considered under Section 1
130 The factors generally relevant to determining whether a violative law is reasonable and demonstrably justified in a free and democratic society remain those set out in Oakes. The first requirement is that the objective of the law limiting the Charter right or freedom must be of sufficient importance to warrant overriding it. The second is that the means chosen to achieve the objective must be proportional to the objective and the effect of the law -- proportionate, in short, to the good which it may produce. Three matters are considered in determining proportionality: the measures chosen must be rationally connected to the objective; they must impair the guaranteed right or freedom as little as reasonably possible (minimal impairment); and there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law.
132 His first point is that the Oakes test must be applied flexibly, having regard to the factual and social context of each case. I agree. The need to consider the context of the case has been accepted since Wilson J. propounded it in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. This "sensitive, case-oriented approach" was affirmed in Rocket, supra, which also concerned a law limiting advertising. There I wrote at pp. 246-47:
While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.
135 Related to context is the degree of deference which the courts should accord to Parliament. It is established that the deference accorded to Parliament or the legislatures may vary with the social context in which the limitation on rights is imposed. For example, it has been suggested that greater deference to Parliament or the Legislature may be appropriate if the law is concerned with the competing rights between different sectors of society than if it is a contest between the individual and the state: Irwin Toy, supra, at pp. 993-94; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, at p. 521. However, such distinctions may not always be easy to apply. For example, the criminal law is generally seen as involving a contest between the state and the accused, but it also involves an allocation of priorities between the accused and the victim, actual or potential. The cases at bar provide a cogent example. We are concerned with a criminal law, which pits the state against the offender. But the social values reflected in this criminal law lead La Forest J. to conclude that "the Act is the very type of legislation to which this Court has generally accorded a high degree of deference" (para. 70). This said, I accept that the situation which the law is attempting to redress may affect the degree of deference which the court should accord to Parliament's choice. The difficulty of devising legislative solutions to social problems which may be only incompletely understood may also affect the degree of deference that the courts accord to Parliament or the Legislature. As I wrote in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 248, "some deference must be paid to the legislators and the difficulties inherent in the process of drafting rules of general application. A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive".
137 Context and deference are related to a third concept in the s. 1 analysis: standard of proof. I agree with La Forest J. that proof to the standard required by science is not required. Nor is proof beyond a reasonable doubt on the criminal standard required. As the s. 1 jurisprudence has established, the civil standard of proof on a balance of probabilities at all stages of the proportionality analysis is more appropriate: Oakes, supra, at p. 137; Irwin Toy, supra, at p. 992. I thus disagree with La Forest J.'s conclusion (in para. 82) that in these cases "it is unnecessary . . . for the government to demonstrate a rational connection according to a civil standard of proof". Discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view: see Snell v. Farrell, [1990] 2 S.C.R. 311.
139 I come finally to a fourth general matter discussed by La Forest J. -- the degree of deference which appellate courts should accord to the findings of the trial judge under s. 1 of the Charter analysis. The trial judge in these cases concluded that the proportionality test was not met. He based this conclusion on findings that the evidence failed to establish any of the three requirements for proportionality under s. 1.
142 Against this background, I return to the cases at bar and the factors for s. 1 justification discussed in Oakes.
(d) The Objective of the Limit on Free Expression
146 While the limited objective of reducing tobacco-associated health risks by reducing advertising-related consumption and providing warnings of dangers is less significant than the broad objective of protecting Canadians generally from the risks associated with tobacco use, it nevertheless constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter. Even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression.
(e) Proportionality
(i) Findings of the Trial Judge (1991), 82 D.L.R. (4th) 449
152 With respect to the minimal impairment element of the proportionality analysis, I accept Chabot J.'s finding that the impugned provisions mandating a complete ban and unattributed package warnings do not minimally impair the right to free expression. Under the minimal impairment analysis, Chabot J. did not rely on problematic social science data, but on the fact that the government had adduced no evidence to show that less intrusive regulation would not achieve its goals as effectively as an outright ban. Nor had the government adduced evidence to show that attributed health warnings would not be as effective as unattributed warnings on tobacco packaging.
154 The causal relationship between the infringement of rights and the benefit sought may sometimes be proved by scientific evidence showing that as a matter of repeated observation, one affects the other. Where, however, legislation is directed at changing human behaviour, as in the case of the Tobacco Products Control Act, the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective: R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 768 and 777; R. v. Butler, [1992] 1 S.C.R. 452, at p. 503. As Sopinka J. wrote of the causal link between obscenity and harm to society in Butler, at p. 502:
While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.
159 On the other hand, there does not appear to be any causal connection between the objective of decreasing tobacco consumption and the absolute prohibition on the use of a tobacco trade mark on articles other than tobacco products which is mandated by s. 8 of the Act. There is no causal connection based on direct evidence, nor is there, in my view, a causal connection based in logic or reason. It is hard to imagine how the presence of a tobacco logo on a cigarette lighter, for example, would increase consumption; yet, such use is banned. I find that s. 8 of the Act fails the rational connection test.
160 As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.
166 This omission is all the more glaring in view of the fact that the government carried out at least one study of alternatives to a total ban on advertising before enacting the total ban. The government has deprived the courts of the results of that study. The Attorney General of Canada refused to disclose this document and approximately 500 others demanded at the trial by invoking s. 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5, thereby circumventing an application by the tobacco companies for disclosure since the courts lack authority to review the documents for which privilege is claimed under s. 39. References to the study were blanked out of such documents as were produced: Reasons at Trial, at p. 516. In the face of this behaviour, one is hard-pressed not to infer that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result.
167 Not only did the government present no evidence justifying its choice of a total ban, it also presented no argument before us on the point. The appellants argued that there were undisclosed alternatives to a complete ban. The Attorney General's factum offered no response. Instead, the Attorney General contented himself with the bland statement that a complete ban is justified because Parliament "had to balance competing interests" somehow. Its response to the minimal impairment argument is not evidence, but a simple assertion that Parliament has the right to set such limits as it chooses:
170 Second, just as care must be taken not to overvalue the legislative objective beyond its actual parameters, so care must be taken not to undervalue the expression at issue. Commercial speech, while arguably less important than some forms of speech, nevertheless should not be lightly dismissed. For example, in Rocket, supra, this Court struck down restrictions on dental advertising on the ground that the minimal impairment requirement had not been met. The Health Disciplines Act, R.S.O. 1980, c. 196, prohibited forms of advertising which far from being unprofessional, might have benefited consumers and contributed to their health. The same may be said here. Tobacco consumption has not been banned in Canada. Yet the advertising ban deprives those who lawfully choose to smoke of information relating to price, quality and even health risks associated with different brands. It is no answer to suggest, as does my colleague, (para. 108) that the tobacco companies have failed to establish the true benefits of such information. Under s. 1 of the Charter, the onus rests on the government to show why restrictions on these forms of advertising are required.
174 As with the advertising ban, it was for the government to show that the unattributed warning, as opposed to an attributed warning, was required to achieve its objective of reducing tobacco consumption among those who might read the warning. Similarly, it was for the government to show why permitting tobacco companies to place additional information on tobacco packaging, such as a statement announcing lower tar levels, would defeat the government's objective. This it has failed to do. Again, my colleague La Forest J. responds (para. 116) with the belief that "a lower level of constitutional scrutiny is justified in this context". For the reasons given with respect to the advertising ban, I respectfully disagree.
(iv)Proportionality Between the Effects of the Legislation and the Objective
176 I have found ss. 4, 8 and 9 of the Tobacco Products Control Act constitute unjustified infringements on free expression. These provisions spearhead the scheme under the Act and cannot be severed cleanly from other provisions dealing with promotion and trade mark usage, ss. 5 and 6. I would consequently hold that ss. 4, 5, 6, 8, and 9 are inconsistent with the Charter and hence are of no force or effect by reason of s. 52 of the Constitution Act, 1982.
178 This leaves the question of costs. The appellant Imperial has been successful in these appeals. The appellant RJR-MacDonald has been substantially successful. Having requested that the whole of the Tobacco Products Control Act be struck down, it has succeeded in having a significant portion of it struck down. I would allow the appeals with costs to both appellants.
The following are the reasons delivered by
179 IACOBUCCI J. -- These appeals concern the constitutional legitimacy of the Tobacco Products Control Act, S.C. 1988, c. 20 (the "Act"), a federal statute which effectively establishes a total ban on cigarette advertising in Canada.
180 The appellants submit that there are two alternative grounds that support the constitutional invalidity of the Act: (1) that it is ultra vires the powers accorded to Parliament by s. 91 of the Constitution Act, 1867; and (2) that it infringes the appellants' right to freedom of expression in a manner that does not constitute a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms.
182 I diverge, however, with La Forest J. on the Charter issue; specifically, I do not believe that the Act minimally impairs the appellants' s. 2(b) Charter rights. More broadly, I also have reservations about the somewhat attenuated minimal impairment analysis propounded by La Forest J. As I noted in my reasons in Egan v. Canada, [1995] 2 S.C.R. 513, unduly diluting the s. 1 principles from their original form cast in R. v. Oakes, [1986] 1 S.C.R. 103, and related cases causes me concern in so far as it creates a risk that Charter violations will be too readily justified and, as a result, Charter values too easily undercut. In this respect, I find myself generally attracted to Justice McLachlin's reasons and disposition in this appeal. Nevertheless, although I concur with many of her general conclusions, I differ somewhat with her s. 1 analysis and proposed remedy and therefore prefer to express my own reasons.
189 I agree with La Forest J. that a contextual approach must be taken to s. 1 analysis, and, when reduced to its essence, the impugned right in this case amounts to the ability of tobacco companies to advertise -- solely for the purposes of financial profit -- a product with known deleterious effects to public health. To this end, the amount of legislative tailoring required to sustain minimal impairment analysis would not be very significant. However, context does not eliminate the need for any tailoring at all. In this appeal, the government chose not to do any tailoring and, ultimately, this constitutes the lynch-pin of the Act's unconstitutionality. I note that the partialness of bans on commercial expression has often been key to their constitutional validity: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
192 In the end, I would allow these appeals, with costs throughout to the appellants. For the reasons set out above, ss. 4, 5, 6, 8, and 9 of the Act should be struck. However, I am of the mind, for the reasons I advanced in Egan, supra, that this, too, is the appropriate case for a suspensive declaration of invalidity of one year. I thus disagree with McLachlin J. in terms of the remedy. Immediately striking down the legislation would permit the tobacco companies the untrammelled ability to advertise until minimally impairing legislation is drafted; the suspensive veto would permit the government to design such legislation while the status quo remains in force. In my view, that is warranted in light of the deleterious effects of tobacco products on those who use them and on society generally.
The following are the reasons delivered by
193 MAJOR J. -- I agree with Justice McLachlin's disposition of these appeals but disagree that Parliament may impose an advertising ban on tobacco products, trade marks, and brand names under its criminal law power.
196 It follows that Parliament can require manufacturers to place warnings on tobacco products which are known to have harmful effects on health. Manufacturers of tobacco products are under a duty to disclose and warn of the dangers inherent in the consumption of tobacco products. Failure to place warnings on tobacco products can validly constitute a crime, a "public wrong" which merits proscription and punishment and ought to be suppressed as "socially undesirable conduct" (R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 488). Section 9 of the Tobacco Products Control Act, S.C. 1988, c. 20 ("the Act"), falls within Parliament's power under s. 91(27) of the Constitution Act, 1867.
197 However, I do not agree that Parliament under its criminal law power is entitled to prohibit all advertising and promotion of tobacco products and restrict the use of tobacco trademarks as provided for in ss. 4, 5, 6, 8 and 9 of the Act. In Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, the test should be one of substance, not form, and excludes from the criminal jurisdiction legislative activity not having the prescribed characteristics of criminal law. It is not always easy to determine whether legislation comes within the purview of Parliament's criminal law power. Cory J. described this difficulty in Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, at p. 347:
As a point of commencement, it may be helpful to consider what constitutes criminal law. While, like a work of art, it is something that may be easier to recognize than define, some guidelines have been established.
Cory J., at p. 348, then referred to the reasons of Rand J. in Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the Margarine Reference), which he found to be a "very helpful definition of criminal law" and referred with approval to the dissenting reasons in R. v. Hauser, [1979] 1 S.C.R. 984, per Dickson J. (as he then was) at p. 1026:
Head 27 of s. 91 of the British North America Act empowers Parliament to make substantive laws prohibiting, with penal consequences, acts or omissions considered to be harmful to the State, or to persons or property within the State.
The approach taken by this Court in Knox Contracting, supra, provides a solid foundation for defining the scope of Parliament's criminal law power.
203 The regulation of manipulative children's advertising was upheld as intra vires the province in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, even though the impugned legislation contained sanctions that included fines and possible imprisonment. While manipulative children's advertising exposes society to some harms, those harms are not sufficient to attract the sanction of the criminal law. In the same way, we must consider whether the ban on tobacco advertising is essentially a regulatory matter within provincial competence, or whether tobacco advertising truly constitutes criminal conduct, a public wrong which Parliament is entitled to punish as harmful, socially undesirable conduct violative of public rights and duties.
205 In Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 811, the Court noted that the prohibition on the use of language in and of itself did not have an affinity with some traditional criminal law concern such as morality or public order.
209 Tobacco advertising and promotion may encourage some people to start or to continue to smoke. For that reason, it is viewed by many as an undesirable form of commercial expression. I do not disagree that it may be an undesirable form of expression, but is this undesirability sufficient to make such expression criminal? Does tobacco advertising pose a significant, grave and serious danger to public health? Or does it simply encourage people to consume a legal but harmful product? I cannot agree that the commercial speech at issue poses such a significant, grave and serious danger to public health to fall within the purview of the federal criminal law power. In my opinion, the Act is too far removed from the injurious or undesirable effects of tobacco use to constitute a valid exercise of Parliament's criminal law power. Legislation prohibiting all advertising of a product which is both legal and licensed for sale throughout Canada lacks a typically criminal public purpose and is ultra vires Parliament under s. 91(27) of the Constitution Act, 1867. Such advertising can hardly be considered to be a public wrong involving a violation of public rights and duties to the whole community, the type of conduct that Parliament is entitled to proscribe and punish as harmful and socially undesirable under its criminal law power.
210 Parliament could have criminalized tobacco use, but has chosen not do so for a variety of reasons. The Act does not directly address the injurious or undesirable effects of tobacco use. La Forest J., in response to this concern, notes that in some circumstances Parliament has criminalized ancillary activities without criminalizing the core activity itself, and that this Court has upheld such measures as a valid exercise of the criminal law power. With respect, the cases cited by La Forest J. --Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (solicitation for the purposes of prostitution and the operation of bawdy houses) and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (prohibition on assisted suicide) -- concern matters which have traditionally been subject to criminal sanctions. Moreover, the "ancillary" activities proscribed in the above two examples pose significant and serious dangers in and of themselves.
213 On a final note, La Forest J. addressed the exemptions contained within the Act, most notably the exemption for foreign periodicals. He concluded that notwithstanding the exemptions, tobacco advertising still constitutes criminal law. I disagree. La Forest J. cites a number of cases, such as Morgentaler v. The Queen, [1976] 1 S.C.R. 616, and R. v. Furtney, [1991] 3 S.C.R. 89, for the proposition that exemptions in criminal legislation do not take away from the legislation's criminal character. While exemptions do not necessarily take a statute out of criminal law, broadly based exemptions are a factor which may lead a court to conclude that the proscribed conduct is not truly criminal. Both Morgentaler (dealing with abortion) and Furtney (dealing with gambling) involved conduct which has traditionally been viewed as criminal. The exemptions could not be described as "broadly based". For example, the Criminal Code only allowed abortions to be performed in limited circumstances and under strict conditions and guidelines. While the legislation may not have been applied uniformly at hospitals throughout the country, Parliament could still validly decide that abortion in general was criminal and could only be performed in hospitals in accordance with statutory requirements.
216 The Act, except for s. 9 and its associated provisions relating to mandatory health warnings on tobacco packaging, cannot be upheld as valid criminal legislation. The Act is a regulatory measure aimed at decreasing tobacco consumption. While Parliament's desire to limit tobacco advertising may be desirable, its power to do so cannot be found in s. 91(27) of the Constitution Act, 1867.
217 In the Court of Appeal ((1993), 102 D.L.R. (4th) 289), Brossard J.A. held at p. 352 that the Act fell within the federal parliament's power to legislate for the "peace, order and good government" of Canada as the Act met national dimensions. I agree. Inasmuch as the legislations fails in any event for the reasons of McLachlin J., it is unnecessary to come to any conclusion on this point.
Appeals allowed, LA FOREST, L'HEUREUX-DUBÉ, GONTHIER and CORY JJ. dissenting. The first constitutional question dealing with the legislative competence of Parliament to enact the legislation under the criminal law power or for the peace, order and good government of Canada should be answered in the positive. With respect to the second constitutional question, ss. 4 (re advertising), 8 (re trade mark use) and 9 (re unattributed health warnings) of the Act are inconsistent with the right of freedom of expression as set out in s. 2(b) of the Charter and do not constitute a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof. La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. would find that they constitute a reasonable limit. Given that ss. 5 (re retail displays) and 6 (re sponsorships) could not be cleanly severed from ss. 4, 8 and 9, all are of no force or effect pursuant to s. 52 of the Constitution Act, 1982.
Solicitors for the appellant RJR-MacDonald Inc.: Mackenzie, Gervais, Montreal.
Solicitors for the appellant Imperial Tobacco Ltd.: Ogilvy, Renault, Montreal.
Solicitors for the respondent the Attorney General of Canada: Côté & Ouellet, Montreal.
Solicitor for the mis-en-cause the Attorney General of Quebec: The Attorney General of Quebec, Ste-Foy.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitors for the intervener the Heart and Stroke Foundation of Canada: Fasken, Campbell, Godfrey, Toronto.
Solicitors for the intervener the Canadian Cancer Society: Fasken, Campbell, Godfrey, Toronto.
Solicitors for the intervener the Canadian Council on Smoking and Health: Fasken, Campbell, Godfrey, Toronto.
Solicitors for the intervener the Canadian Medical Association: Fasken, Campbell, Godfrey, Toronto.
Solicitors for the intervener the Canadian Lung Association: Fasken, Campbell, Godfrey, Toronto.
1- See Erratum [1995] 4 S.C.R. iv
2- See Erratum [1995] 4 S.C.R. iv
The official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is
prepared and published by LexUM in partnership with Supreme Court of Canada.