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RJR-Macdonald Inc. V. Canada (Attorney General), [1995] 3 S.C.R. 199 RJR-Macdonald Inc. Appellant V. the Attorney General Of

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RJR-Macdonald Inc. V. Canada (Attorney General), [1995] 3 S.C.R. 199 RJR-Macdonald Inc. Appellant V. the Attorney General Of RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 RJR-MacDonald Inc. Appellant v. The Attorney General of Canada Respondent and Imperial Tobacco Ltd. Appellant v. The Attorney General of Canada Respondent and The Attorney General of Quebec Mis-en-cause and The Attorney General for Ontario, 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 - 2 - Indexed as: RJR-MacDonald Inc. v. Canada (Attorney General) File Nos.: 23460, 23490. 1994: November 29, 30; 1995: September 21. Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. on appeal from the court of appeal for quebec Constitutional law -- Division of powers -- Charter of Rights -- Freedom of expression -- Commercial advertising -- Cigarette advertising banned -- Whether or not legislation validly enacted under criminal law power or under peace, order and good government clause -- If so, whether or not Act's provisions infringing s. 2(b) Charter right to freedom of expression -- If so, whether or not infringements justifiable under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Constitution Act, 1867, Preamble, s. 91(27) -- Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 5, 6, 8, 9. 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. - 3 - 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. - 4 - 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. - 5 - 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 - 6 - 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 - 7 - 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 - 8 - 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. - 9 - 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.
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