Information

November 1996

Decision of the Supreme Court of Canada in RJR-MacDonald v. AGC [1995 ] 3 S.C.R. 199

• The 1988 Tobacco Products Control Act (TPCA) was intended to protect the health of Canadians and in particular young persons from inducements to use tobacco products and from consequent dependence on them.
• The TPCA banned advertising and restricted other forms of promotion of tobacco products and required packaging to display prominent health messages and toxic constituent information.
• In its ruling on September 21, 1995, the Supreme Court of Canada confirmed that the federal government had the criminal law power to control the advertising of tobacco products.
• Recognizing that the detrimental health effects of tobacco consumption are both dramatic and substantial, that "tobacco kills", the Court stated that Parliament can "validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use..." [La Forest at par.32].
• The Court unanimously held that the purpose of the legislation - to reduce the health effects of tobacco consumption - is a valid and important legislative objective sufficient to warrant limiting freedom of expression. "Even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression":[McLachlin at par. 146].
• The majority held that the government had failed to demonstrate that the restraints in the TPCA regarding advertising, promotion and labelling were reasonable and justified restrictions on freedom of expression, and consequently struck down most of the provisions of the Act. However, the Court found that the prohibition on free distribution of tobacco products was justified.
• As to the link between advertising and consumption, the Court recognized that "...life-style advertising may, as a matter of common sense, be seen as having a tendency to discourage those who might otherwise cease tobacco use from doing so.":[McLachlin at par. 158].
• The Court stated that "Where ... legislation is directed at changing human behaviour, ... the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective":[McLachlin at par.154]

• The Court suggested a number of alternative approaches which would have infringed freedom of expression to a lesser degree.
• In particular, the Court mentioned such options as a partial ban on advertising which would allow information and brand preference advertising; a ban on lifestyle advertising; measures to prohibit advertising aimed at children and adolescents; and health labelling requirements with attribution.
• Any of these alternatives, the Court held, would be a reasonable impairment of the right to free expression, given the important objective and the legislative context.