RJR-MacDonald Inc v. Canada (Attorney General)

Two prominent tobacco companies challenged the constitutionality of the Tobacco Products Control Act (the Act), which regulated the advertisement of tobacco products and their requisite health warnings. They also challenged an amendment to the Tobacco Products Control Regulations (the Regulations) which imposed a total advertising ban, prohibited the use of tobacco trade marks on non-tobacco products, provided for prominent health warnings on all tobacco packaging, and required that the health warnings not be attributed to Health and Welfare Canada.

The companies claimed that the Act superseded the federal government’s criminal law power and peace, order and good government power.  They further claimed its prohibitions on advertising and its requirements for unattributed health warnings violated the right to freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter). 

The Court held that the Act did not supersede the federal government’s powers with respect to criminal laws and peace, order, and good government.  The Act was directed at a public health evil and imposed penal sanctions.  The fact that the subject was not traditionally considered a criminal one was insufficient reason for it to not be so recognized in this case, as the Court had long recognized that Parliament could use its criminal powers to regulate public health matters. Parliament was also not required to directly ban smoking in order to validly exercise its criminal law powers, nor did the fact that certain types of media were exempt from the laws change the overall criminal character of the laws.

However, the Court nonetheless struck down the provisions of the Act relating to advertising and trade mark use on the basis of freedom of expression in s. 2(b) of the Charter. It held that ss. 4, 8, and 9 of the Act were invalid. These provisions constituted a form of forced expression that was covered by s. 2(b). This interference could not be justified under s. 1 of the Charter. The Court found that s. 8 of the Act, which prevented tobacco trademarks from being used on non-tobacco products, had no rational connection to the aim of reducing smoking, as the Attorney General had not been able to point to any evidence showing a link between non-tobacco use of tobacco trademarks and smoking. Further, although ss. 4 and 9 of the Act, which banned tobacco advertising and mandated unattributed health warnings respectively, had a rational connection to the aim of reducing smoking, they did not meet the minimum impairment standard. The Attorney-General had not been able to demonstrate that a total ban on advertising would be more effective at reducing smoking than a partial ban, or that unattributed warnings were more effective than attributed warnings. The Court also struck down two other provisions on tobacco advertising in the Act that were inseparable from ss. 4, 8, and 9.

“Quite clearly, then, Parliament has been innovative in seeking to find alternatives to a prohibition on the sale or use of tobacco. In light of the practical difficulties entailed in prohibiting the sale or consumption of tobacco, and the resulting need for innovative legislative solutions, Parliament's decision to criminalize tobacco advertisement and promotion is, in my view, a valid exercise of the criminal law power. This Court has long recognized that Parliament may validly employ the criminal law power to prohibit or control the manufacture, sale and distribution of products that present a danger to public health, and that Parliament may also validly impose labelling and packaging requirements on dangerous products with a view to protecting public health.” Para. 39.

“As I have indicated, it is clear that this legislation is directed at a public health evil and that it contains prohibitions accompanied by penal sanctions. Is it colourable? In my view, it is not. Indeed, it is difficult to conceive what Parliament's purpose could have been in enacting this legislation apart from the reduction of tobacco consumption and the protection of public health. If Parliament's underlying purpose or intent had been to encroach specifically upon the provincial power to regulate advertising, it would surely have enacted legislation applying to advertising in more than one industry. Similarly, if Parliament's intent had been to regulate the tobacco industry as an industry, and not merely to combat the ancillary health effects resulting from tobacco consumption, then it would surely have enacted provisions that relate to such matters as product quality, pricing and labour relations.” Para. 33.

“Having found the requirement of minimum impairment is not satisfied for ss. 4 and 9 of the Act, it is unnecessary to proceed to the final stage of the proportionality analysis under s. 1 -- balancing the negative effects of the infringement of rights against the positive benefits associated with the legislative goal. A finding that the law impairs the right more than required contradicts the assertion that the infringement is proportionate. Neither the fact that commercial expression may be entitled to a lesser degree of protection than certain other forms of expression, nor the importance of reducing tobacco consumption, even to a small extent, negate this proposition. Freedom of expression, even commercial expression, is an important and fundamental tenet of a free and democratic society. If Parliament wishes to infringe this freedom, it must be prepared to offer good and sufficient justification for the infringement and its ambit. This it has not done.” Para. 175.

“At this juncture, I should like to offer some indication of what sorts of measures would, in my mind, have survived Charter scrutiny. As I have already mentioned, it is clear that health warnings can and should be placed on the packages, but the strictures of the Charter necessitate that they be attributed to their author, in all likelihood Health and Welfare Canada. Regarding the advertising ban, it is clear to me that an effort could have been made to regulate tobacco advertising along the lines of alcohol advertising. Given that the tobacco companies had agreed as early as 1972 (through the Voluntary Code) to refrain from advertising on television and radio, these regulations would only involve advertising in the print media anyway. Alternatively, as evidenced in some of the testimony at trial, partial bans in the order of prohibitions on lifestyle advertising only and limitations on advertising aimed at adolescents could have been given more constructive attention. The main point I wish to make is that in this case we are faced with a total and absolute ban on advertising without a justifiable basis for it. Perhaps proof exists for such a ban, but in my view the record does not establish it.” Para. 191.