Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKQB 382

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 25, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKQB 382;(2002), 224 Sask.R. 208 (QB)

Rothmans v. Sask. (2002), 224 Sask.R. 208 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. SE.064

Rothmans, Benson & Hedges Inc. (applicant/plaintiff) v. Government of Saskatchewan (respondent/defendant)

(2002 Q.B. No. 945; 2002 SKQB 382)

Indexed As: Rothmans, Benson & Hedges Inc. v. Saskatchewan

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Barclay, J.

September 25, 2002.

Summary:

The applicant applied under Queen's Bench Rule 188 for a declaration that s. 6 of Saskatchewan's Tobacco Control Act was inoperative by virtue of the application of the doctrine of federal paramountcy, in light of the provisions of the federal Tobacco Act.

The Saskatchewan Court of Queen's Bench held that s. 6 was not inoperative by virtue of the doctrine of federal paramountcy.

Constitutional Law - Topic 3611

Paramountcy of federal statutes - Overlapping legislation - General - The Saskatchewan Court of Queen's Bench stated that "Every legal system must have a rule to reconcile conflicts between inconsistent laws. The doctrine of federal paramountcy is the principle of Canadian constitutional law which reconciles inconsistencies between otherwise valid federal and provincial enactments." - The court discussed the law respecting paramountcy - See paragraphs 33 to 75.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - The applicant alleged that s. 6 of Saskatchewan's Tobacco Control Act was inoperative by virtue of the application of the doctrine of federal paramountcy, in light of the provisions of the federal Tobacco Act - The Saskatchewan Court of Queen's Bench disagreed - Actual operational conflict was necessary to attract the doctrine of federal paramountcy - Here, a citizen could comply with both Acts by following the stricter one - Section 6 of the provincial Act prescribed stricter standards on advertising than did the federal Act - However, these restrictions did not completely ban the activity - Both Acts had the same purpose, to protect Canadians from the dangers of smoking - Section 6 of the Tobacco Control Act did not frustrate the effect of the federal law - See paragraphs 33 to 82.

Constitutional Law - Topic 6444

Federal jurisdiction (s. 91) - Criminal law - General - Matters not criminal - The Saskatchewan Court of Queen's Bench stated that "the Supreme Court [of Canada] has made it clear that although the criminal law power is a very broad head of federal jurisdiction, it cannot be used to usurp provincial jurisdiction. The criminal law power is not a general regulatory power. The fact that Parliament grants an exemption from a particular prohibition should not be taken as a positive entitlement for the individual affected. Parliament can waive the application of a criminal prohibition in a particular case. It cannot create a right to carry on conduct, unfettered by provincial law. To do so would turn the criminal law power into a general regulatory power." - See paragraph 74.

Constitutional Law - Topic 6450

Federal jurisdiction (s. 91) - Criminal law - General - Elements of a criminal law statute - General - [See Constitutional Law - Topic 6444 ].

Practice - Topic 5261

Trials - Trial of preliminary issues - Issues of law - The applicant challenged s. 6 of Saskatchewan's Tobacco Control Act on the basis of the doctrine of federal paramountcy - The applicant also challenged ss. 6 and 7 of the Act under the Charter - The applicant applied under Queen's Bench Rule 188 for a determination of the paramountcy issue only - The respondent objected that rule 188 was not the appropriate procedure to resolve this issue - The Saskatchewan Court of Queen's Bench disagreed - The application would determine a distinct issue in the action and the legal submissions relating to that issue would be concluded - The focus at trial, would then be whether s. 2 of the Charter had been breached, a matter which required a factual foundation - It was not a condition of a rule 188 application that the determination made would resolve the whole lawsuit - It was sufficient if a distinct and significant issue was resolved - See paragraphs 11 to 31.

Cases Noticed:

Stagman v. Hamm (1984), 34 Sask.R. 265 (C.A.), refd to. [para. 13].

Govan Local School Board v. Last Mountain School Division No. 29 (1992), 100 Sask.R. 1; 18 W.A.C. 1 (C.A.), refd to. [para. 13].

Shields (Resort Village) v. Toronto-Dominion Bank (1988), 69 Sask.R. 131 (C.A.), refd to. [para. 14].

Dombek v. Law Society of Saskatchewan (1992), 107 Sask. R. 173 (Q.B.), refd to. [para. 18].

Cameco Corp. v. Insurance Co. of the State of Pennsylvania et al. (2000), 194 Sask.R. 57 (Q.B.), refd to. [para. 19].

Goertz v. Zmud (1995), 137 Sask.R. 289; 107 W.A.C. 289 (C.A.), refd to. [para. 25].

B.F. v. Board of Education of Saskatchewan Rivers School Division No. 119 et al. (2000), 199 Sask.R. 192; 232 W.A.C. 192 (C.A.), refd to. [para. 25].

Livingston v. Hewson (1991), 95 Sask.R. 170 (Q.B.), refd to. [para. 29].

Cooperative Trust Co. of Canada v. Target 21 Industries Ltd. et al. (1982), 20 Sask.R. 200 (Q.B.), refd to. [para. 29].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 41].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181; 138 D.L.R.(3d) 1; 18 B.L.R. 138, refd to. [para. 43].

Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; 104 N.R. 110; 82 Sask.R. 120, reving. (1987), 54 Sask.R. 30 (C.A.), dist. [paras. 43, 47].

Smith v. R., [1960] S.C.R. 776, refd to. [para. 43].

Ross v. Registrar of Motor Vehicles (Ont.) and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9; 42 D.L.R.(3d) 68; 14 C.C.C.(2d) 322, refd to. [para. 50].

Kozan Furniture (Yorkton) Ltd. Estate v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753; 14 N.R. 91, refd to. [para. 51].

Robinson v. Countrywide Factors Ltd. - see Kozan Furniture (Yorkton) Ltd. v. Countrywide Factors Ltd.

Montcalm Construction Inc. v. Minimum Wage Commission (Que.) et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 52].

Schneider v. British Columbia et al., [1982] 2 S.C.R. 112; 43 N.R. 91, refd to. [para. 52].

Rio Hotel Ltd. v. Liquor Licensing Board (N.B.) et al., [1987] 2 S.C.R. 59; 77 N.R. 104; 81 N.B.R.(2d) 328; 205 A.P.R. 328, refd to. [para. 52].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, dist. [para. 57].

Law Society of British Columbia v. Mangat (2001), 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 205 D.L.R.(4th) 577 (S.C.C.), dist. [para. 57].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 70].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 161 A.R. 201; 225 W.A.C. 201, refd to. [para. 70].

Statutes Noticed:

Tobacco Control Act, S.S. 2001, c. T-14.1, sect. 6 [para. 9].

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada (4th Ed. 1997) (2000 Looseleaf Update) (Release No. 1), pp. 15.11, 15.12 [para. 54]; 16.2 [para. 33]; 16.3 [paras. 33, 37]; 16.8 [para. 34]; 16-13 [para. 53]; paras. 15.5(c) [para. 54]; 16.1 [paras. 33, 37]; 16.4(a) [para. 53].

Lederman, The Courts and the Canadian Constitution (1964), p. 186 [para. 66].

Counsel:

Neil G. Gabrielson, Q.C., and Michelle J.V. Ouellette, for the applicant/plaintiff;

J. Thomas Irvine and Richard G. Hischebett, for the respondent/defendant.

This application was heard by Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on September 25, 2002.