Canada (Attorney General) v. JTI-Macdonald Corp.

Canada (Attorney General) v. JTI-Macdonald Corp.
Collection
Supreme Court Judgments
Date
2007-06-28
Neutral citation
2007 SCC 30
Report
[2007] 2 SCR 610
Case number
30611
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 30611
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, 2007 SCC 30
Date: 20070628
Docket: 30611
Between:
Attorney General of Canada
Appellant / Respondent on cross‑appeal
and
JTI-Macdonald Corp.
Respondent / Appellant on cross‑appeal
And between:
Attorney General of Canada
Appellant / Respondent on cross‑appeal
and
Rothmans, Benson & Hedges Inc.
Respondent / Appellant on cross‑appeal
And between:
Attorney General of Canada
Appellant / Respondent on cross‑appeal
and
Imperial Tobacco Canada Ltd.
Respondent / Appellant on cross‑appeal
‑ and ‑
Attorney General of Ontario, Attorney General of Quebec,
Attorney General of New Brunswick, Attorney General of Manitoba,
Attorney General of British Columbia, Attorney General for Saskatchewan
and Canadian Cancer Society
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 142)
McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
______________________________
canada (attorney general) v. jti‑macdonald corp.
Attorney General of Canada Appellant/Respondent on cross‑appeal
v.
JTI‑Macdonald Corp. Respondent/Appellant on cross‑appeal
and
Attorney General of Canada Appellant/Respondent on cross‑appeal
v.
Rothmans, Benson & Hedges Inc. Respondent/Appellant on cross‑appeal
and
Attorney General of Canada Appellant/Respondent on cross‑appeal
v.
Imperial Tobacco Canada Ltd. Respondent/Appellant on cross‑appeal
and
Attorney General of Ontario, Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General for Saskatchewan and
Canadian Cancer Society Interveners
Indexed as: Canada (Attorney General) v. JTI‑Macdonald Corp.
Neutral citation: 2007 SCC 30.
File No.: 30611.
2007: February 19; 2007: June 28.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Constitutional law – Charter of Rights – Freedom of expression – Advertising and promotion of tobacco – Whether limits imposed on tobacco manufacturers’ freedom of expression by provisions of Tobacco Act and Tobacco Products Information Regulations justified – Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) – Tobacco Act, S.C. 1997, c. 13, ss. 18 , 19 , 20 , 22 , 24 , 25 – Tobacco Products Information Regulations, SOR/2000‑272.
In 1995, in RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Court struck down provisions of the Tobacco Products Control Act that broadly prohibited all advertising and promotion of tobacco products, subject to specific exceptions, and required that unattributed warning labels be affixed on tobacco product packaging. In response to the Court’s decision, Parliament enacted the Tobacco Act and the Tobacco Products Information Regulations. The scheme of the new legislation, in broad terms, involves permitting information and brand‑preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. In addition, the size of mandatory and attributed health warnings on packaging is increased from 33 percent to 50 percent of the principal display surfaces. The appellant tobacco manufacturers challenged the new legislation, alleging that some provisions limited their right to freedom of expression under s. 2 (b) of the Canadian Charter of Rights and Freedoms and that those limits were not justified under s. 1 of the Charter . More specifically, they challenged (1) the provisions’ effect on funded scientific publications, (2) the provisions dealing with false and erroneous promotion, (3) the provisions relating to advertising appealing to young people, (4) the ban on lifestyle advertising, (5) the ban on sponsorship promotion and (6) the requirement regarding health warning labels. The trial judge determined that the impugned provisions were constitutional and dismissed the manufacturers’ actions. The Quebec Court of Appeal upheld most of the scheme, but found parts of some of the provisions to be unconstitutional. The Attorney General of Canada appealed the findings of unconstitutionality, and the tobacco manufacturers cross‑appealed on some of the provisions held to be constitutional.
Held: The appeals should be allowed and the cross‑appeals dismissed.
Properly construed, ss. 18 and 19 of the Tobacco Act permit the publication of legitimate scientific works sponsored by the tobacco manufacturers and do not unjustifiably restrict the manufacturers’ right to freedom of expression. These sections, as applied to scientific works, are ambiguous. Although the primary object of s. 18 is “product placement” directed at consumers, s. 18(2) (a), read literally and in combination with the definition of “promotion” in s. 18(1) and the general prohibition in s. 19 , would effect a broad ban on funded scientific works. Such a reading would fit neither the scheme of ss. 18 and 19 nor Parliament’s goals. To bring the reference to “scientific work” in s. 18(2) (a) into harmony with the purpose and wording of s. 18 as a whole, the word “promotion” in s. 18 should be read as meaning commercial promotion directly or indirectly targeted at consumers. Read in this way, ss. 18 and 19 do not prevent the publication of legitimate scientific works funded by tobacco manufacturers. However, a manufacturer would be prohibited from paying for a particular brand to be included in a commercial scientific work directed at consumers, and this limit on free expression would be saved under s. 1 of the Charter . [49‑57]
Section 20 of the Tobacco Act , which bans “false, misleading or deceptive” promotion, as well as promotion “likely to create an erroneous impression about the characteristics, health effects or health hazard of the tobacco product or its emissions”, clearly infringes the guarantee of freedom of expression. However, the ban, and more specifically the ban on promotion “likely to create an erroneous impression”, are justified under s. 1 . This phrase is directed at promotion that, while not literally false, misleading or deceptive in the traditional legal sense, conveys an erroneous impression about the effects of the tobacco product, in the sense of leading consumers to infer things that are not true. It represents an attempt to cover the grey area between demonstrable falsity and invitation to false inference that tobacco manufacturers have successfully exploited in the past. Parliament’s objective of combating the promotion of tobacco products by half‑truths and by invitation to false inference constitutes a pressing and substantial objective, and prohibiting such forms of promotion is rationally connected to Parliament’s public health and consumer protection purposes. The ban on promotion “likely to create an erroneous impression” is not overbroad or vague, but rather falls within a range of reasonable alternatives. Finally, the impugned phrase meets the requirement of proportionality of effects. The objective is of great importance, nothing less than a matter of life or death for millions of people who could be affected, and the evidence shows that banning advertising by half‑truths may help reduce smoking. The expression at stake — the right to invite consumers to draw an erroneous inference as to the healthfulness of a product that, on the evidence, will almost certainly harm them — is of low value. [58‑69]
Section 22(2) of the Tobacco Act permits information and brand‑preference advertising in certain media and certain locations, but s. 22(3) bans “advertising that could be construed on reasonable grounds to be appealing to young persons”. This limit on free expression imposed by s. 22(3), properly interpreted, is justified under s. 1 of the Charter . Section 22(3) requires the prosecution in a given case to prove that there are reasonable grounds to believe that the advertisement of a tobacco product at issue could be appealing to young persons, in the sense that it could be particularly attractive and of interest to young persons, as distinguished from the general population. This interpretation yields a common meaning for the French and English versions of s. 22(3) and is consistent with Parliament’s stated purpose of preventing young people in particular from taking up smoking and becoming addicted to tobacco. This purpose is pressing and substantial, and a ban on advertising appealing to young persons is rationally connected to it. Further, s. 22(3), properly interpreted, satisfies the minimal impairment requirement. The provision does not impose a total ban on advertising. Information and brand‑preference advertising is permitted, provided that it is not done in places that young persons are likely to frequent or in publications not addressed to adults, and provided that it is not lifestyle advertising or advertising that there are reasonable grounds to believe that it could be appealing to young people as a group. Given the sophistication and subtlety of tobacco advertising practices in the past, Parliament cannot be said to have gone further than necessary in blocking advertising that might influence young persons to start smoking. Lastly, s. 22(3) meets the requirement of proportionality of effects. The prohibited speech is of low value, and the beneficial effects of the ban for young persons and for society at large may be significant. Moreover, the vulnerability of the young may justify measures that privilege them over adults in matters of free expression. [70‑95]
The ban on “lifestyle advertising” in s. 22(3), properly interpreted, also constitutes a justified limit on free expression. The first part of the definition of lifestyle advertising in s. 22(4), which, combined with s. 22(3), removes advertising that associates a product with a way of life from the broad ambit of s. 22(2) , is unproblematic. As for the phrase “or evokes a positive or negative emotion about or image of, a way of life”, it is aimed at precluding arguments that to constitute lifestyle advertising, there must be a link, on the face of the advertisement, between the tobacco product and a way of life. However, this phrase should be interpreted in a way that leaves room for true information and brand‑preference advertising, which s. 22(2) permits. Furthermore, the words “such as one that includes glamour, recreation, excitement, vitality, risk or daring” are to be read as illustrations of lifestyle advertising. As with the other challenged provisions, the pressing and substantial nature of Parliament’s objective is beyond challenge. The sophistication and subtlety of lifestyle advertising are reflected in the means Parliament has chosen to deal with it, and there is a rational connection between this provision and Parliament’s objective. Minimal impairment is also established. True information and brand‑preference advertising continues to be permitted under s. 22(2) . Such advertising crosses the line when it associates a product with a way of life or uses a lifestyle to evoke an emotion or image that may, by design or effect, lead more people to become addicted or lead people who are already addicted to increase their tobacco use. Lastly, the proportionality of the effects is clear. The suppressed expression is of low value compared with the significant benefits in lower rates of consumption and addiction that the ban may yield. [96‑116]
Sponsorship promotion, which is subject to a general ban under s. 24 of the Tobacco Act , is essentially lifestyle advertising in disguise. For the same reasons as for the prohibition of lifestyle advertising, this clear limit on expression is justified under s. 1 . The specific prohibition on using corporate names in sponsorship promotion and on sports or cultural facilities, which is set out in ss. 24 and 25 of the Act, is also justified. The evidence establishes that as restrictions on tobacco advertising tightened, manufacturers increasingly turned to sports and cultural sponsorship as a substitute form of lifestyle promotion. Placing a tobacco manufacturer’s name on a facility is one form such sponsorship takes, and the aim of curbing such promotion justifies imposing limits on free expression. The rational connection element is made out, because placing a corporate name on a list of sponsors or on a sports or cultural facility may promote the use of tobacco in a number of ways. Even where there is no overt connection between the corporate name and the brand name of a tobacco product, the corporate name may serve to promote the sale of the tobacco product. Given the nature of the problem, and in view of the limited value of the expression in issue compared with the beneficial effects of the ban, the proposed solution is proportional. [117‑129]
The requirement in the Tobacco Products Information Regulations that the government’s health warnings occupy at least 50 percent of the principal display surfaces of packages infringes s. 2 (b) of the Charter , but the infringement is justified under s. 1 . Parliament’s goal, notably to inform and remind potential purchasers of the product of the health hazards it entails, is pressing and substantial. The evidence as to the importance and effectiveness of such warnings establishes a rational connection between Parliament’s requirement for warnings and its objects of reducing the incidence of smoking and of the disease and death it causes. Regarding minimal impairment, the requirement for warning labels, including their size, falls within a range of reasonable alternatives. The reasonableness of the government’s requirement is supported, notably, by the fact that many countries require warnings at least as large as Canada’s. Finally, the benefits flowing from larger warnings are clear, while the detriments to the manufacturers’ expressive interest in creative packaging are small. [130‑140]
Cases Cited
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; referred to: RJR‑MacDonald Inc. v. Canada (Attorney‑General), [1995] 3 S.C.R. 199; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Lucas, [1998] 1 S.C.R. 439; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Attorney General of Quebec v. Carrières Ste‑Thérèse Ltée, [1985] 1 S.C.R. 831; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; RJR—MacDonald Inc. v. Canada (Attorney‑General), [1994] 1 S.C.R. 311.
Statutes and Regulations Cited
Animal Pedigree Act, R.S.C. 1985, c. 8 (4th Supp .), s. 64 .
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 .
Food and Drugs Act, R.S.C. 1985, c. F‑27, s. 5(1) .
Radiation Emitting Devices Act, R.S.C. 1985, c. R‑1, s. 5(1) .
Tobacco Act, S.C. 1997, c. 13, ss. 4 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 43 , 47 , 49 , 50 .
Tobacco Products Control Act, S.C. 1988, c. 20.
Tobacco Products Information Regulations, SOR/2000‑272, ss. 2, 3, 4, 5.
Treaties and Other International Instruments
WHO Framework Convention on Tobacco Control, 2302 U.N.T.S. 229, ss. 11(1)(a), 13(4)(a).
Authors Cited
Barak, Aharon. “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369.
Canadian Oxford Dictionary, 2nd ed. Edited by Katherine Barber. Don Mills, Ont.: Oxford University Press, 2004, “appeal”.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2007, release 1).
Hogg, Peter W., Allison A. Bushell Thornton and Wade K. Wright. “Charter Dialogue Revisited — Or ‘Much Ado About Metaphors’” (2007), 45 Osgoode Hall L.J. 1.
APPEALS and CROSS‑APPEALS from judgments of the Quebec Court of Appeal (Beauregard, Brossard and Rayle JJ.A.), [2005] Q.J. No. 11174 (QL), 2005 QCCA 725, (sub nom. Imperial Tobacco Canada Ltée v. Canada (Procureure générale)), and [2005] R.J.Q. 2018, 260 D.L.R. (4th) 224, [2005] Q.J. No. 10915 (QL), 2005 QCCA 726, (sub nom. JTI‑Macdonald Corp. v. Canada (Attorney General)), and [2005] Q.J. No. 11175 (QL), 2005 QCCA 727, (sub nom. Rothmans, Benson & Hedges Inc. v. Canada (Procureure générale)), reversing in part a decision of Denis J., [2003] R.J.Q. 181, 102 C.R.R. (2d) 189, [2002] Q.J. No. 5550 (QL). Appeals allowed and cross‑appeals dismissed.
Claude Joyal, Bernard Mandeville and Maurice Régnier, for the appellant/respondent on cross‑appeal.
Douglas C. Mitchell, Georges R. Thibaudeau and Catherine McKenzie, for the respondent/appellant on cross‑appeal JTI‑Macdonald Corp.
Steven I. Sofer and Rachel Ravary, for the respondent/appellant on cross‑appeal Rothmans, Benson & Hedges Inc.
Simon V. Potter, Gregory B. Bordan and Sophie Perreault, for the respondent/appellant on cross‑appeal Imperial Tobacco Canada Ltd.
Robin K. Basu and Mark Crow, for the intervener the Attorney General of Ontario.
Dominique A. Jobin and Caroline Renaud, for the intervener the Attorney General of Quebec.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Cynthia Devine, for the intervener the Attorney General of Manitoba.
Craig Jones and Jonathan Penner, for the intervener the Attorney General of British Columbia.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Julie Desrosiers and Robert Cunningham, for the intervener the Canadian Cancer Society.
The judgment of the Court was delivered by
The Chief Justice —
I. Overview
1 These appeals concern the constitutionality of Canada’s laws on tobacco advertising and promotion, under the Tobacco Act, S.C. 1997, c. 13 , and the Tobacco Products Information Regulations, SOR/2000-272 (“TPIR”). The main issue is whether the limits certain provisions impose on freedom of expression are justified as reasonable under s. 1 of the Canadian Charter of Rights and Freedoms .
2 The case pits tobacco manufacturers against the Attorney General of Canada, who is supported by a number of provincial Attorneys General and the Canadian Cancer Society. The tobacco manufacturers, at this stage of the litigation, challenge six aspects of the legislative and regulatory scheme: (1) its effect on funded scientific publications; (2) its provisions dealing with false and erroneous promotion; (3) its provisions relating to advertising appealing to young persons; (4) its ban on lifestyle advertising; (5) its ban on sponsorship promotion; and (6) its regulatory requirement that health warning labels occupy 50 percent of tobacco packaging.
3 The trial judge, Denis J., upheld the provisions as constitutional ((2003), 102 C.R.R. (2d) 103). The Quebec Court of Appeal upheld most of the scheme, but found parts of some of the provisions to be unconstitutional ([2005] Q.J. No. 11174 (QL), 2005 QCCA 725, and 260 D.L.R. (4th) 224, [2005] Q.J. No. 10915 (QL), 2005 QCCA 726, and [2005] Q.J. No. 11175 (QL), 2005 QCCA 727). The Attorney General of Canada appeals the findings of unconstitutionality to this Court, and the tobacco manufacturers cross-appeal on some of the provisions that the Court of Appeal held constitutional.
4 I conclude that properly interpreted, the legislative and regulatory provisions at issue do not unjustifiably infringe s. 2 (b) of the Charter and should be upheld, for the reasons that follow.
II. Background
5 Before analyzing the six disputed aspects of the legislative and regulatory scheme, it is necessary to set the stage by discussing the historical background of the legislation and its social and legal contexts.
6 In 1995, this Court struck down the advertising provisions of the Tobacco Products Control Act (S.C. 1988, c. 20): RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. This Act broadly prohibited all advertising and promotion of tobacco products, subject to specific exceptions, and required affixing unattributed warning labels on tobacco product packaging. The majority of the Court in that case held that the provisions limited free expression and that the government had failed to justify the limitations under s. 1 of the Charter . In particular, the government, by failing to show that less intrusive measures were not available, had failed to establish that the limits met the requirement of minimal impairment developed in R. v. Oakes, [1986] 1 S.C.R. 103 (McLachlin J., at paras. 163 and 165, and Iacobucci J., at para. 191). While the majority agreed that s. 1 justification on issues such as this does not require scientifically precise proof, it found that the absence of virtually any proof was fatal to the government’s case. The trial judge had found that the requirements for justification were not met on the evidence. The majority concluded that on the record before it, there was no basis to interfere with the trial judge’s conclusion.
7 In response to the Court’s decision in RJR, Parliament enacted the Tobacco Act and Regulations at issue on these appeals. The scheme of the new legislation, in broad terms, involved permitting information and brand-preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. In addition, the size of mandatory and attributed health warnings on packaging was increased from 33 percent to 50 percent of the principal display surfaces. In general, the new scheme was more restrained and nuanced than its predecessor. It represented a genuine attempt by Parliament to craft controls on advertising and promotion that would meet its objectives as well as the concerns expressed by the majority of this Court in RJR.
8 The government’s response to the inevitable challenge to the new scheme, when it came, also reflected the Court’s decision in RJR. The government presented detailed and copious evidence in support of its contention that where the new legislation posed limits on free expression, those limits were demonstrably justified under s. 1 of the Charter .
9 Parliament was assisted in its efforts to craft and justify appropriately tailored controls on tobacco advertising and promotion by increased understanding of the means by which tobacco manufacturers seek to advertise and promote their products and by new scientific insights into the nature of tobacco addiction and its consequences. On the findings of the trial judge in the present case, tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs. We now know that half of smokers will die of tobacco-related diseases and that the costs to the public health system are enormous. We also know that tobacco addiction is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse.
10 Moreover, the international context has changed since 1995. Governments around the world are implementing anti-tobacco measures similar to and, in some cases, more restrictive than Canada’s. The WHO Framework Convention on Tobacco Control (2003), 2302 U.N.T.S. 229, which Canada ratified in 2004, mandates a comprehensive ban on tobacco promotion, subject to state constitutional requirements. The Convention, with 168 signatories and 148 parties, is one of the most widely embraced of multilateral treaties. Domestically, governments now widely accept that protecting the public from second-hand smoke is a legitimate policy objective. Many provinces have banned smoking in enclosed public places, and some are legislating to recover health care costs from tobacco manufacturers and to restrict tobacco promotion even further than the federal Tobacco Act . The tobacco industry has been criticized for its use of “light” and “mild” cigarette designations, which the manufacturers agreed in 2006 to discontinue following an investigation by the Competition Bureau.
11 None of these developments remove the burden on the Crown to show that limitations on free expression imposed by the legislation are demonstrably justified in a free and democratic society, as required by s. 1 of the Charter . The mere fact that the legislation represents Parliament’s response to a decision of this Court does not militate for or against deference: P. W. Hogg, A. A. Bushell Thornton and W. K. Wright, “Charter Dialogue Revisited — Or ‘Much Ado About Metaphors’” (2007) 45 Osgoode Hall L.J. 1, at pp. 47-48. The legal template set out in Oakes and RJR remains applicable. However, when that template is applied to the evidence adduced by the government in this case more than a decade later, different conclusions may emerge. RJR was grounded in a different historical context and based on different findings supported by a different record at a different time. The Tobacco Act must be assessed in light of the knowledge, social conditions and regulatory environment revealed by the evidence presented in this case.
III. The Evidence
12 The trial judge’s findings of fact are worth examining in detail; the key points are as follows.
13 Some 45,000 Canadians die from tobacco‑related illnesses every year. By this measure, smoking is the leading public health problem in Canada.
14 Most smokers begin as teenagers, between the ages of 13 and 16. Tobacco advertising serves to recruit new smokers, especially adolescents. It is completely unrealistic to claim that tobacco advertising does not target people under 19 years of age. Recent tobacco advertising has three objectives: reaching out to young people, reassuring smokers (to discourage quitting), and reaching out to women.
15 Tobacco contains nicotine, a highly addictive drug. Some 80 percent of smokers wish they could quit but cannot. However, new smokers, especially young people, are often unaware of (or tend to deceive themselves about) the possibility of addiction. Tobacco companies have designed cigarettes to deliver increased levels of nicotine.
16 The percentage of Canadians who smoke fell from 35 percent to 24 percent between 1985 and 2000. The percentage of smokers fell in every age group except 15‑ to 19‑year‑olds.
17 The manufacturers admitted that they produce almost all of the cigarettes sold in Canada, and that their businesses are profitable despite the fact that cigarettes are heavily taxed. They also admitted to spending substantial sums promoting their respective brands.
IV. The Legislative and Regulatory Scheme
18 The purposes of the Tobacco Act are “to provide a legislative response to a national public health problem of substantial and pressing concern ...” and, more particularly, “to protect the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases”; “to protect young persons and others from inducements to use tobacco products and the consequent dependence on them”; “ to protect the health of young persons by restricting access to tobacco products”; and “to enhance public awareness of the health hazards of using tobacco products”: s. 4(a), (b), (c) and (d) (see Appendix A, setting out relevant portions of the Act).
19 The Tobacco Act seeks to accomplish these purposes by targeting “the four Ps” of tobacco marketing: product, price, point of sale and promotion. These appeals deal only with the fourth “P” — promotion — which is regulated under Part IV of the Act. In addition to the provisions impugned in these appeals, Part IV prohibits celebrity endorsements, regulates the distribution of branded accessories and non-tobacco products, prohibits sales promotions such as rebates, prizes and free samples, and regulates the retail display of tobacco products. The government chose the current structure of the legislation after extensive public consultation and after considering a number of alternatives.
20 Restrictions on tobacco advertising are a valid exercise of Parliament’s criminal law power: RJR. However, the regulatory offences created by the Tobacco Act are not true crimes and are punishable on a strict liability basis: see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. Violations of the promotion provisions carry serious penalties: fines of up to $300,000 per day and/or imprisonment for up to two years (ss. 43 and 47 ). A tobacco company can be convicted of a separate offence for each day the violation continues (s. 49 ). Directors and officers can be convicted for offences committed by corporations (s. 50 ).
21 The basic structure of the limitations on advertising and promotion, along with the manufacturers’ objections to them, may be described as follows.
1. Promotion
22 The starting point is a general prohibition on promoting tobacco products, except as authorized by the Act or regulations:
19. No person shall promote a tobacco product or a tobacco product-related brand element except as authorized by this Act or the regulations.
“Promotion” is defined in s. 18 . The basic definition is broad:
18. (1) In this Part, “promotion” means a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.
23 Section 18(2) creates exceptions to this general prohibition. The first is an exception for representations of tobacco products in works of art or science, provided no consideration is given for the use or depiction in the work, production or performance: s. 18(2)(a). The second is an exception for “a report, commentary or opinion in respect of a tobacco product ...”, provided no consideration is given by a manufacturer or retailer for a reference to a tobacco product: s. 18(2)(b). The third exception, which does not concern us here, is for promotion within the tobacco industry: s. 18(2)(c). The manufacturers argue that the prohibition on depiction of tobacco products in scientific works if consideration is given prevents them from funding and publishing scientific research on tobacco products.
2. Specific Prohibitions: False Promotion; Lifestyle Advertising; Advertising Appealing
to Young Persons
24 Having broadly prohibited promotion subject to the specific exceptions within s. 18(2) and other provisions of the Act or regulations, the legislation goes on to make a number of specific prohibitions.
25 The first is a broad blanket prohibition against false or deceptive promotion of tobacco products:
20. No person shall promote a tobacco product by any means, including by means of the packaging, that are false, misleading or deceptive or that are likely to create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions.
The manufacturers argue that this prohibition is impermissibly vague and overbroad, because it forbids not only false or deceptive promotion (terms that have a recognized legal meaning), but goes on to prohibit anything “likely to create an erroneous impression about the characteristics” and health risks of tobacco products.
26 The legislation also prohibits testimonials and endorsements (s. 21 ), which the manufacturers do not challenge. Prohibitions affecting packaging and display (ss. 23 , 24 , 25 and 26 ) are similarly not challenged (with the exception of mandatory health warnings on packaging).
27 In s. 22(1), the Act prohibits advertisements that depict “a tobacco product, its package or a brand element”. However, in s. 22(2) , it goes on to carve out an exception from this prohibition for information and brand-preference advertising in publications addressed and mailed to identified adults, in publications with an adult readership of not less than 85 percent, or in signs in places not frequented by young persons.
28 The effect of s. 22(2) is to allow information or brand-preference advertising of tobacco products in publications and venues where adults will constitute the principal audience. However, presumably because Parliament was concerned that such advertising could still reach young people (for example, because publications with an 85 percent adult readership may nevertheless be read by large numbers of young persons), or could cross the line into lifestyle advertising, it further qualified this already restricted form of advertising:
22. ...
(3) Subsection (2) does not apply to lifestyle advertising or advertising that could be construed on reasonable grounds to be appealing to young persons.
“Lifestyle advertising” is defined in s. 22(4) as “advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring”. No definition is provided of what might be appealing to young persons. The manufacturers argue that the prohibitions on lifestyle advertising and advertising appealing to young persons are vague and overbroad, and thus unconstitutional.
29 The disputed phrases referring to lifestyle advertising and advertising appealing to young persons reappear in s. 27 , which prevents the use of brand elements of tobacco products on non-tobacco products.
3. Sponsorships
30 Section 24 of the Tobacco Act forbids the display of tobacco brand elements or manufacturers’ names in any promotion “that is used, directly or indirectly, in the sponsorship of a person, entity, event, activity or permanent facility”. Section 25 forbids display of brand elements or manufacturers’ names on any “permanent facility”, if this associates the element or name with a sports or cultural event or activity. The manufacturers challenge these prohibitions on sponsorships. They argue first that the general ban on promotion is not justified and, alternatively, that if it is, the specific ban on the use of corporate names, as distinguished from brand elements, is overbroad, and thus unconstitutional.
4. Warnings on Packaging
31 Finally, the new regulations (the TPIR, Appendix B) increase the required size of warning labels on packaging from 33 percent to 50 percent of the principal display surfaces (s. 5(2)(b)). The manufacturers object to the increase, arguing that the warnings infringe their freedom of expression and that the government has not shown the increase in size to be justified.
V. Analysis
32 Before turning to the challenged provisions in more detail, it may be helpful to discuss the main principles that guide the analysis of their constitutionality.
33 The manufacturers challenge the disputed provisions on the ground that they infringe or limit their right to freedom of expression under s. 2 (b) of the Charter . The government concedes this infringement, except in the case of the increase in size of the warning labels, but says the limits on the right are justified under s. 1 of the Charter .
34 Section 2 (b) of the Charter provides:
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
When the Charter was adopted, the question arose of whether the free expression guarantee extended to commercial expression by corporations. This Court ruled that it did: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. The Court premised this conclusion on an examination of the values protected by the free expression guarantee: individual self-fulfilment, truth seeking and democratic participation. It concluded that, given the Court’s previous pronouncements that Charter rights should be given a large and liberal interpretation, there was no sound reason for excluding commercial expression from the protection of s. 2(b). It noted that commercial speech may be useful in giving consumers information about products and providing a basis for consumer purchasing decisions: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 766-67.
35 The main issue with respect to the challenged provisions is whether the government has shown them to be “demonstrably justified in a free and democratic society” under s. 1 of the Charter , which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
36 This engages what in law is known as the proportionality analysis. Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate. The concept of proportionality finds its roots in ancient and scholastic scholarship on the legitimate exercise of government power. Its modern articulations may be traced to the Supreme Court of Germany and the European Court of Human Rights, which were influenced by earlier German law: A. Barak, “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369, at pp. 370-371). This Court in Oakes set out a test of proportionality that mirrors the elements of this idea of proportionality — first, the law must serve an important purpose, and second, the means it uses to attain this purpose must be proportionate. Proportionality in turn involves rational connection between the means and the objective, minimal impairment and proportionality of effects. As Dickson C.J. stated in Oakes, at p. 139:
There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. [Emphasis deleted.]
37 The broad objective of the limitations on freedom of expression at issue in this case is to deal with the public health problem posed by tobacco consumption by protecting Canadians against debilitating and fatal diseases associated with tobacco consumption. More particularly, the Act seeks to enhance public awareness of the health hazards of using tobacco products and to protect the health of young people by restricting access to tobacco products: s. 4. An objective will be deemed proper if it is for the realization of collective goals of fundamental importance: P. W. Hogg, Constitutional Law of Canada, (loose-leaf ed.), vol. 2 at p. 38-22; Oakes, at p. 136. In the words of Oakes, the objective must be “pressing