JTI-Macdonald Corp., Rothmans, Benson Hedges Inc. and Imperial Tobacco Canada Limited v. Attorney General of Canada and Canadian Cancer Society

The three big Canadian cigarette manufacturers, Imperial Tobacco, Rothman Benson and Edges, and JTI MacDonald instituted three separate actions before the Superior Court of Montreal to challenge the Tobacco Act enacted by the Parliament of Canada in 1997.

The tobacco companies were asking the Superior Court to declare the Tobacco Act and two regulations adopted thereunder unconstitutional under the Canadian Charter of Rights and Freedoms. They argued that the Tobacco Act violates their freedom of expression.

The Attorney General of Canada defended the legislation. The Canadian Cancer Society intervened in these proceedings to support the Attorney General's position in favour of the validity of the Act.

After a six-month trial, Justice André Denis, from the Superior Court of Montreal, ruled in favour of the Attorney General and the Canadian Cancer Society, maintaining the validity of the Tobacco Act. In a 200 page judgement, Justice André Denis states that the Tobacco Companies' right to advertise their products could not be given the same legitimacy as the Federal Government duty to protect public health. He states that smokers are not social outcasts. They should not be crucified for exercising their right to choose to smoke. Tobacco Companies have a right to produce and sell cigarettes. However, he underlines that 45,000 Canadians die each year as a consequence of tobacco consumption. Smokers die 15 years prematurely. Nicotine is extremely addictive. Second-hand smoke harms everyone, smokers and non-smokers. He concludes that there is incontrovertible evidence that advertising and sponsorship encourage people, especially adolescents to consume tobacco products. Advertising is designed to reassure smokers and relies on associating cigarettes with a positive lifestyle.

This judgment comes after a 15 years debate on Tobacco advertising. In 1988, the Parliament passed the Tobacco Products Control Act. The Act was successfully challenged and in 1995 the Supreme Court of Canada, in a split decision (5/4), declared the Act unconstitutional. The Tobacco Act was enacted after the Supreme Court judgment and Parliament's response to the comments of the Supreme Court.

For the Intervener, the Canadian Cancer Society, Julie Desrosiers and Christian Trépanier from Fasken Martineau and Rob Cunningham, Internal Counsel for the Canadian Cancer Society.