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Summary of Canadian Cancer Society written argument
JTI-Macdonald Corp., Rothmans, Benson Hedges Inc. and Imperial Tobacco Canada Limited
v. Attorney General of Canada and Canadian Cancer Society
Quebec Court of Appeal (November 2004)
The Canadian Cancer Society submits that the Tobacco Act and the Tobacco Products Information Regulations are constitutionally valid, as the Quebec Superior Court concluded. The appeals by the tobacco manufacturers should be dismissed in their entirety.
Tobacco products – the marketing of which is controlled by the Act and regulations – are highly addictive and cause cancer, heart disease, emphysema and many other diseases. Second-hand smoke harms children and causes disease in non-smokers. Each year 45,000 Canadians die from tobacco use.
In RJR-MacDonald v. Canada (Attorney General), a 5:4 majority of the Supreme Court of Canada concluded that a total ban on tobacco advertising in the Tobacco Products Control Act was not minimally impairing of freedom of expression in s.2(b) of the Charter. The Supreme Court suggested alternatives that would be minimally impairing, namely partial restrictions. The Tobacco Act responds to the guidance of the Supreme Court, permitting information advertising and brand preference advertising that is not lifestyle and is not appealing to youth.
Some of the restrictions on advertising and promotion in the Tobacco Act infringe freedom of expression. These restrictions are justified as a reasonable limit under s.1 of the Charter. The advertising and promotion restrictions pursue two pressing and substantial objectives:
- protecting children from exposure to inducements to use tobacco products
- reducing tobacco use
For each objective, the restrictions are rationally connected, minimally impairing and proportional.
The tobacco manufacturers have failed to meet their burden (pursuant to W.F.H.) to demonstrate that the measures suggested by the Supreme Court and incorporated into the Act can no longer be justified as a reasonable limit.
The Tobacco Products Information Regulations require picture-based health warnings covering 50% of the package front and back. These messages may be attributed to Health Canada. These attributed warnings do not infringe s.2(b). Consumers receive more information, not less. In any event, the health warnings are justified as a reasonable limit under s.1. The health warnings pursue two pressing and substantial objectives:
- increasing awareness of the health effects of tobacco use
- reducing tobacco use
For each objective, the restrictions are rationally connected, minimally impairing and proportional.
Parliament has a reasonable basis, based on extensive evidence supplemented by common sense and logic, to justify the measures challenged by tobacco manufacturers. There are no grounds for the Court of Appeal to overturn the conclusion of the Superior Court.
Last modified on:
21 August 2008
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