Smoking Guns: the Federal Government Confronts the Tobacco and Gun Lobbies

Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1995 Smoking Guns: The Federal Government Confronts the Tobacco and Gun Lobbies Allan C. Hutchinson Osgoode Hall Law School of York University, [email protected] David Schneiderman Source Publication: Constitutional Forum. Volume 7, Number 1 (1995), p. 16-22. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Hutchinson, Allan C., and David Schneiderman. "Smoking Guns: The Federal Government Confronts the Tobacco and Gun Lobbies." Constitutional Forum 7.1 (1995): 16-22. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. SMOKING GUNS: THE FEDERAL GOVERNMENT CONFRONTS THE TOBACCO AND GUN LOBBIES Allan C. Hutchinson and David Schneiderman They rode into Ottawa wearing sharp suits and recent effort in this process of delineation and defini- carrying expensive briefcases, accompanied by a tion, RJR-MacDonald gives a progress report on posse of well-placed lobbyists and high-priced law- where the Supreme Court is and where it might be yers. It was a put-up or shut-up showdown between going. However, as with so much earlier case law multi-natiorial tobacco companies, RJR-MacDonald about the criminal law power, there is more smoke and Imperial Tobacco, and the Canadian government. and mirrors than anything else. With the eyes of the world upon them, it was constitutional high noon in Ottawa's Supreme Court corral. In dispute was the ability of the federal government SMOKE AND MIRRORS to curtail the corporate speech of tobacco companies aimed at inducing consumption of the principal cause of cancer in North America. But there was much The federal government's power under section 91 more at stake. In the shadow of the tobacco lobby to prohibit and regulate commercial advertising came was the equally powerful gun lobby. The fate of gun under serious threat in RJR-MacDonald. The sobering control legislation passing through Parliament would reality of that threat is dramatized by the disagree- be threatened by any decision in favour of the ment amongst all levels of courts about the source of tobacco legislation. the federal power to prohibit and regulate tobacco advertising. At the Quebec Superior Court, Chabot J. As we now know, the tobacco lobby was suc- held that the federal government did not have the cessful in its efforts to set aside the most restrictive power to enact a prohibition on tobacco advertising aspects of the Tobacco Products Control Act. Much or require mandatory health warnings;, no authority of the commentary on the RJR-MacDonald' has could be found under the federal criminal law power concentrated on the Charter dimensions of that or the 'national dimensions' branch of the peace decision, particularly the implications for the regula- order and good government power. The Quebec tion of commercial speech generally. In this com- Court of Appeal thought differently. It unanimously ment, we want to take a different focus and concen - held that the federal government could enact the trate on the federalism implications of the case - the Tobacco Products Control Act under the national extent of the federal criminal law power. The federal dimensions branch of POGG. According to the government's 'exclusive' jurisdiction under section Court, the problem of tobacco consumption in 91(27) hasalways been a difficult and dynamic cat- Canada has reached such proportions as to be of egory of power to circumscribe: its scope is poten- national concern, having the singleness, distinctive- tially limitless and can subvert the division of powers ness and indivisibility that distinguishes matters of between the federal and provincial legislatures. With national concern from matters of local provincial succinct understatement, Justice Estey was close to concern. The Act, however, could not be justified the mark when he noted that "criminal law is easier under the federal criminal law power as tobacco to recognise than to define." 2 In seeking to set some consumption and its promotion by advertising did not guidelines and limits, the have "an affinity with a traditional criminal law courts have tended to swing 3 between unrealistically narrow and broad interpreta- concern." The Supreme Court of Canada, Justices tions. Striking a considered and consistent balance Sopinka and Major dissenting on this point, agreed has proved an elusive task for the courts. As the most with the Quebec Court of Appeal that the Act was a (1995) 7:1 CONSTITUTIONAL FORUM valid exercise of federal power, but under the federal pose - only starts off any rigorous doctrinal analy- power to make criminal law; they declined to offer an sis; it does not and cannot complete the task without opinion on its constitutional validity under the POGG much more. power. In RJR-MacDonald, the Supreme Court was Why such confusion among so many and so asked by the tobacco manufacturers to find the learned judges about the ambit of the federal criminal Tobacco Products Control Act beyond federal com- law power? Apart from and in addition to the overall petence as being largely in the nature of economic indeterminacy of constitutional law, the confusion can regulation within the scope of provincial jurisdiction. be traced back to the decisions of the late nineteenth The Court refused the invitation, accepting that the century Privy Council. By circumscribing the federal criminal law could justify federal intervention in the regulation of trade and commerce to no one specific powerful tobacco manufacturing industry by hamper- trade in Parsons and denying jurisdiction to the ing its alluring packaging and prohibiting its adver- federal government to prohibit trade other than in the tising campaigns. exceptional circumstances that give rise to the exercise of the POGG power, the Privy Council curtailed Writing for the majority of the Court, Justice La federal ability to control important economic levers Forest concluded that the restriction of advertising through the trade and commerce power.' But as long and the requirement of mandatory labelling qualified as an enactment concerned prohibitions with penal as an exercise of the criminal law power. The pith consequences attached,5 the criminal law power and substance of the Act - that process of identify- could serve as the convenient vehicle for every kind ing the dominant purpose of legislation which drives of regulation, economic or otherwise - laws pro- the constitutional analyses in division of powers cases hibiting combinations and price discrimination were - was identified as a concern with public health. 2 justified early in the twentieth century6 and, later in Health is not an enumerated head of power, but is the century, those prohibiting resale price mainten- rather a subject matter of divided jurisdiction over ance and the continuation or repetition of an illegal which the provinces and the federal government have combinations were upheld under the criminal law an interest. Indeed, Justice Rand had earlier con- power. 7 This state of affairs inspired Bora Laskin to firmed health as one of the ordinary ends served by write in the third edition of his case-book that "[ries- the criminal law, that of safeguarding the public from ort to the criminal law power to proscribe undesirable "injurious or undesirable effect." '" According to La commercial practices is to-day as characteristic of its Forest J., the scope of the federal power to create exercise as has been resort thereto to curb violence or criminal legislation with respect to health matters is immoral conduct." 8 broad, and is "circumscribed only by the require- ments that the legislation must contain a prohibition So expansive was this power that the federal accompanied by a penal sanction and must be government was driven to invoke the criminal law directed at a legitimate public health evil." 4 That is, power even to regulate the insurance industry9 and to the law must not be a colourable attempt to intrude prohibit the production of margarine. In the Margar- into the realm of provincial jurisdiction. By way of ine Reference case, the Supreme Court of Canada example, La Forest J. argues that a law would be decided that enough was enough and tried to place colourable if it pertained only to a particular industry some limits on the criminal law power. In a famous (Parsons and Labatt) or only to the regulation of judgment, Justice Rand sought to narrow the unre- advertising generally (Irwin Toy). He considered stricted scope of the criminal law power to those laws these both to be areas of provincial concern. that had a "criminal public purpose." He maintained that such ends were served by laws which had as It could not be said that this was a colourable their purpose "public peace, order, security, health, intrusion into provincial jurisdiction. According to La morality" because these were the "ordinary though Forest J., the law's underlying concern was not the not exclusive ends served" by the criminal law.'" regulation of advertising because it then "surely Decades later, the criminal law power still retains would have enacted legislation applying to advertising pivotal importance as the repository

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