JTI-Macdonald Corp. v. Can., 2007 SCC 30

JudgeMcLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateJune 28, 2007
JurisdictionCanada (Federal)
Citations2007 SCC 30;(2007), 364 N.R. 89 (SCC)

JTI-Macdonald Corp. v. Can. (2007), 364 N.R. 89 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2007] N.R. TBEd. JN.008

Attorney General of Canada (appellant/respondent on cross-appeal) v. JTI-Macdonald Corp. (respondent/appellant on cross-appeal)

Attorney General of Canada (appellant/respondent on cross-appeal) v. Rothmans, Benson & Hedges Inc. (respondent/appellant on cross-appeal)

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 (intervenors)

(30611; 2007 SCC 30; 2007 CSC 30)

Indexed As: JTI-Macdonald Corp. et al. v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 28, 2007.

Summary:

Tobacco manufacturers challenged the constitutionality of provisions of the Tobacco Act and Tobacco Products Information Regulations which regulated tobacco advertising and promotions. Particularly, the manufacturers challenged: (1) the general promotion ban as precluding manufacturers from sponsoring legitimate scientific research that was neither commercial nor aimed at consumers; (2) the provisions respecting false, misleading or deceptive promotions and promotions that, while not literally false, misleading or deceptive, were likely to "create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions"; (3) the provisions prohibiting advertising that "could be construed on reasonable grounds to be appealing to young persons"; (4) the ban on lifestyle advertising; (5) the ban on sponsorship promotion; and (6) the regulatory requirement that health warning labels occupy 50% of the tobacco packaging (up from 33%). The manufacturers claimed that the provisions violated freedom of expression under s. 2(b) of the Charter and were not saved as reasonable limits prescribed by law under s. 1.

The Quebec Superior Court dismissed the constitutional challenge in its entirety. The manufacturers appealed.

The Quebec Court of Appeal allowed the appeal in part, finding some of the provisions unconstitutional. The Attorney General appealed the finding of unconstitutionality. The manufacturers cross-appealed the finding respecting those provisions found to be constitutional.

The Supreme Court of Canada allowed the appeal and dismissed the cross-appeal. All of the challenged provisions violated freedom of expression under s. 2(b), but, when properly interpreted, were saved as reasonable limits prescribed by law under s. 1.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The Supreme Court of Canada stated that "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) ... 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) ..." - See paragraph 34.

Civil Rights - Topic 1847

Freedom of speech or expression - Limitations on - Regulation of advertising and commercial use of language - Tobacco manufacturers challenged the constitutionality of provisions of the Tobacco Act and Tobacco Products Information Regulations which regulated tobacco advertising and promotions - Particularly, the manufacturers challenged: (1) the general promotion ban as precluding manufacturers from sponsoring legitimate scientific research that was neither commercial nor aimed at consumers; (2) the provisions respecting false, misleading or deceptive promotions and promotions that, while not literally false, misleading or deceptive, were likely to "create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions"; (3) the provisions prohibiting advertising that "could be construed on reasonable grounds to be appealing to young persons"; (4) the ban on lifestyle advertising; (5) the ban on sponsorship promotion; and (6) the regulatory requirement that health warning labels occupy 50% of the tobacco packaging (up from 33%) - The manufacturers claimed that the provisions effectively, under the guise of restricting advertising and promotion, effected banned all advertising - The manufacturers argued that the violation of freedom of expression under s. 2(b) of the Charter was not a reasonable limit prescribed by law under s. 1 - The Supreme Court of Canada held that all of the challenged provisions violated freedom of expression under s. 2(b), but, when properly interpreted, were saved as reasonable limits prescribed by law under s. 1 - A challenge of vagueness or overbreadth respecting some of the provisions was rejected.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - The Supreme Court of Canada stated that "both overbreadth and vagueness can be considered in determining whether a limit on free expression is justified under s. 1 of the Charter, although the two concepts raise distinct considerations. Overbreadth is concerned with whether the provision on its face catches more expression than necessary to meet the legislator's objective. The criticism is not that the words are unclear, but that while clear, they go too far. Vagueness, by contrast, focuses on the generality and imprecision of the language used. The argument is that because the language is vague and unclear, it may be applied in a way that in fact goes beyond the legislator's stated goals. A citizen, corporate or otherwise, who wishes to stay within the law may have no choice but to err on the side of caution. The result may be that the citizen says less than is required in fact to accomplish the state's object. Indeed, confronted by vague bans on speech, the prudent citizen may be reduced to saying nothing at all. Like clear language that casts the statutory net too broadly, overbreadth by reason of vagueness goes to the heart of the requirement of minimal impairment. It follows from this that two things must be shown in order to refute a claim of vagueness and overbreadth: first, the provision must give adequate guidance to those expected to abide by it; and second, it must limit the discretion of state officials responsible for its enforcement. While complete certainty is impossible, and some generalization is inevitable, the law must be sufficiently precise to provide guidance for legal debate ..." - See paragraphs 78 to 79.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See Civil Rights - Topic 3107 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - The Supreme Court of Canada stated that "in cases of ambiguity [in a statutory provision] ... claims of overbreadth may be resolved by appropriate interpretation" - See paragraph 44.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1847 and Civil Rights - Topic 3107 ].

Constitutional Law - Topic 6505

Federal jurisdiction - Criminal law - Respecting particular matters - Health - The Supreme Court of Canada stated that "restrictions on tobacco advertising are a valid exercise of Parliament's criminal law power" - See paragraph 20.

Trade Regulation - Topic 3695

Marketing of agricultural products - Tobacco - Manufacturers - Advertising and promotional restrictions - Section 19 of the Tobacco Act banned the promotion of tobacco products, subject to specific exceptions - Section 18(2) excluded the promotion of "scientific" works that "use or depict" tobacco, as long as no consideration was given for the use or depiction of the tobacco product - The Supreme Court of Canada rejected the manufacturers' submission that s. 18(2) was not sufficiently broad to permit them to fund scientific research, because consideration was paid in industry funded research - The court held that s. 18 did not absolutely ban the publication of all tobacco manufacturer sponsored scientific research - Sections 18 and 19 permitted the publication of legitimate scientific works sponsored by the manufacturers that were neither commercial nor aimed at consumers - The court stated that "'promotion' in s. 18 should be read as meaning commercial promotion directly or indirectly targeted at consumers" - See paragraphs 49 to 57.

Trade Regulation - Topic 3695

Marketing of agricultural products - Tobacco - Manufacturers - Advertising and promotional restrictions - Section 20 of the Tobacco Act prohibited the promotion of any tobacco product that was "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 tobacco manufacturers argued that the words "likely to create an erroneous impression" were vague and overbroad  - The Supreme Court of Canada stated that "the answer is that the phrase 'likely to create an erroneous impression' 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. The industry practice of promoting tobacco consumption by inducing consumers to draw false inferences about the safety of the products is widespread." - Accordingly, s. 20 was not vague or overbroad - See paragraphs 58 to 64.

Trade Regulation - Topic 3695

Marketing of agricultural products - Tobacco - Manufacturers - Advertising and promotional restrictions - Section 22(3) of the Tobacco Act banned advertising that "could be construed on reasonable grounds to be appealing to young persons" - The tobacco manufacturers submitted that s. 22(3) was vague and overbroad, in that it did not permit manufacturers to know what advertising was or was not allowed (i.e., unable to distinguish what was appealing to adults and allowed, and what was appealing to young persons and not allowed) - The Supreme Court of Canada rejected the submission, finding that "s. 22(3) must be read as creating a ban for information and brand-preference advertising that could be appealing to a particular segment of society, namely young people. ... Section 22(3), thus interpreted, 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." - See paragraphs 70 to 89.

Trade Regulation - Topic 3695

Marketing of agricultural products - Tobacco - Manufacturers - Advertising and promotional restrictions - Section 22(3) of the Tobacco Act banned "lifestyle advertising", which tobacco manufacturers argued was overbroad - Section 22(4) defined "lifestyle advertising" as "advertising that associates a product with, or evokes a positive or negative emotion about or an image of, a way of life ..." - The Supreme Court of Canada rejected the submission - In interpreting the quoted phrase, the court stated, inter alia, that "expressly excluding lifestyle advertising that evokes emotions and images makes it clear that even advertising that does not appear on its face to connect a lifestyle with a tobacco product is prohibited if it subliminally connects a tobacco product with a lifestyle. The phrase 'evokes a positive or negative emotion or image' should not, however, be read so broadly as to encompass every perceptual impression. It should be interpreted in a way that leaves room for true information and brand-preference advertising, which s. 22(2) permits." - See paragraphs 96 to 116.

Trade Regulation - Topic 3696

Marketing of agricultural products - Tobacco - Manufacturers - Mandatory health warning labels - The Tobacco Products Information Regulations increased the minimum size of the mandatory health warnings on tobacco packaging from 33% to 50% - The Attorney General submitted that the warning requirement did not violate freedom of expression, because it neither deprived manufacturers of a vehicle for communicating their message, nor limited the form of expression - The Supreme Court of Canada agreed that the mandatory warning violated freedom of expression, stating that "to hold that minor restrictions or requirements with respect to packaging violate the s. 2(b) guarantee of freedom of expression might trivialize the guarantee. However, the requirement that manufacturers place the government's warning on one half of the surface of their package arguably rises to the level of interfering with how they choose to express themselves" - See paragraphs 130 to 132.

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 6].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 6].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 20].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 34].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 34].

Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239,  refd to. [para. 43].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 44].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 60].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, refd to. [para. 60].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 77].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 77].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 79].

Québec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 87].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 131].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 132].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 135].

Statutes Noticed:

Tobacco Act, S.C. 1997, c. 13, sect. 18(1), sect. 19 [para. 22]; sect. 20 [para. 25]; sect. 22(3) [para. 28]; sect. 22(4) [para. 97].

Authors and Works Noticed:

Barak, Aharon, Proportional Effect: The Israeli Experience (2007), 57 U.T.L.J. 369, pp. 370, 371 [para. 36].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 55].

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf Ed.) (2007 Update, Release 1), vol. 2, p. 38-22 [para. 37].

Hogg, Peter W., Bushell Thornton, Allison A., and Wright, Wade K., Charter Dialogue Revisited - Or "Much Ado About Metaphors" (2007), 45 Osgoode Hall L.J. 1, pp. 47, 48 [para. 11].

Counsel:

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 intervenor, Attorney General of Ontario;

Dominique A. Jobin and Caroline Renaud, for the intervenor, Attorney General of Quebec;

Gaétan Migneault, for the intervenor, Attorney General of New Brunswick;

Cynthia Devine, for the intervenor, Attorney General of Manitoba;

Craig Jones and Jonathan Penner, for the intervenor, Attorney General of British Columbia;

Thomson Irvine, for the intervenor, Attorney General for Saskatchewan;

Julie Desrosiers and Robert Cunningham, for the intervenor, Canadian Cancer Society.

Solicitors of Record:

Attorney General of Canada, Montréal, Quebec, for the appellant/respondent on cross- appeal;

Irving Mitchell Kalichman, Westmount, Quebec, for the respondent/appellant on cross-appeal, JTI-Macdonald Corp.;

McCarthy Tétrault, Montréal, Quebec, for the respondent/appellant on cross-appeal, Rothmans, Benson & Hedges Inc.;

Ogilvy Renault, Montréal, Quebec, for the respondent/appellant on cross-appeal, Imperial Tobacco Canada Ltd.;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, Attorney General for Saskatchewan;

Fasken Martineau DuMoulin, Montréal, Quebec, for the intervenor, Canadian Cancer Society.

This appeal and cross-appeal were heard on February 19, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On June 28, 2007, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.

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