News
release
February 19, 2007
British Columbia has it right: Tobacco advertising
should not be considered ‘free speech.’
(Ottawa) – Physicians for a
Smoke-Free Canada (PSC) today praised the British
Columbia government for being the only government to
argue before the Supreme Court that tobacco advertising
should not be a form of protected speech under the
Charter.
On February 19th, 2007 the
Supreme Court of Canada hears arguments in the
decade-long challenge of tobacco companies against the
1997 Tobacco Act, a law which restricts but does not ban
tobacco advertising.
"The
federal government as well as the other 5 provincial
governments and the Canadian Cancer Society which are
intervening in this case have strongly defended this
legislation, but have not sought the court's guidance or
permission to strengthen it, said Callard. "Only the
government of British Columbia has argued that tobacco
advertising is so clearly intended to encourage
Canadians to engage in harmful activities that it is not
appropriate to class it as a type of free speech
envisaged by Canada's charter."
The British Columbia
government is the first and only provincial legislature
to pursue claims against tobacco companies for the
damages caused by their products. While the legal
reforms adopted by British Columbia to pursue this case
have been copied by several other governments, none
other has yet taken the legal plunge into actual
litigation.
The arguments filed with the
Supreme Court by the British Columbia government are all
the more important given the context with which this
hearing is taking place, says PSC.
"There are two reasons why
we hope that the court will listen closely to B.C.'s
arguments," explained Callard. "The first is
that the legislation is out-dated, inconsistent with
scientific evidence, and a breach of Canada's
international obligations to impose the most stringent
advertising ban constitutionally permitted. The second
is that the tobacco companies self-imposed restraints on
tobacco advertising can be expected to end the moment
this court case is resolved."
Clearing the legal air about
the constitutionality of a comprehensive ban
"The popular belief that
Canada's constitution does not allow tobacco advertising
to be banned is not an interpretation of the 1995
Supreme Court ruling with which we agree," said Callard.
"The Court did not rule that there could never be a
total ban on tobacco advertising, only that it had to be
justified with evidence. Moreover, the narrowness of the
court decision at that time showed that there was
significant support for a ban should evidence be
produced. The Supreme Court was split 5-4 in its 1995
ruling against a total ban.
Although Health Minister
Diane Marleau promised, in 1996, to re-introduce a total
ban and provide sufficient evidence to satisfy the
court, her successor, David Dingwall, under great
pressure from Quebec arts and sporting events, backed
down and introduced a weaker bill.
Now, ten years later, the
evidence in favour of a total ban on tobacco advertising
is stronger and more voluminous. The new evidence
led Judge André Denis in his Quebec Superior Court
decision in favour of the Tobacco Act in December
2002 to state, "A close reading of all the opinions
handed down by the Supreme Court in the first case,
together with the evidence introduced at this trial
indicates that a total ban on tobacco advertising would
be much more easily defended now than in 1989."
Canada accepted an
international obligation to clarify whether it had the
constitution authority to comprehensively ban
advertising when it ratified the FCTC on November 26,
2004, says PSC. The FCTC states, "Each Party
shall, in accordance with its constitution or
constitutional principles, undertake a comprehensive ban
on all tobacco advertising, promotion and sponsorship."
The treaty obliges the Canadian government to adopt a
comprehensive ban on tobacco advertising before
February, 2010 if this is within its constitutional
authority.
''Only British Columbia is
providing the Supreme Court with an opportunity to clear
the legal air in time for this obligation to be met,"
said Callard.
Many other countries which
similar constitutional principles as Canada have now
adopted comprehensive bans against tobacco advertising
-- including all the members of the European Union, New
Zealand, Australia, India, South Africa.
Paving the way for renewed
tobacco advertising.
PSC cautions that a court
victory for government in this particular case will not
be a loss for big tobacco. That's because the law
which is currently before the courts allows for many
forms of tobacco advertising.
"The
major tobacco companies that are before the courts are
refraining from using the forms of advertising that are
still legal in Canada because doing so would harm their
argument before the court," explained Callard. "However,
other smaller companies which are not to part the court
action, are placing advertisements. These actions signal
the weaknesses in the current law and the vulnerability
of Canadians to future advertising by the major
companies once this court case is settled."
An example of recent legal
tobacco advertising in Canada are the campaigns by the
National Smokeless Tobacco Company for its Skoal, Bandit
and Access brands. Canada is one of the very few modern
democracies outside of the United States and Japan which
continues to allow tobacco advertising.
"British Columbia is the
only Canadian government seeking to move the legal
and constitutional questions beyond 1995 and into the
21st century" said Callard. "We hope the judges will be
similarly forward-looking."
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To assist the media and the
public who might be interested in this case, PSC is
providing web access to the arguments filed in court.
(Additional documents can be obtained by calling the
number below).
Available are:
Federal government:
Provincial governments
Tobacco companies
The Canadian Cancer Society
For further information,
contact Cynthia Callard or Neil Collishaw at 1 613 233
4878
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