Supreme Court should hear tobacco advertising ban

Doctors call for reference to Supreme Court for comprehensive ban on tobacco advertising.

News release, October 20, 2005

(Ottawa ): Physicians for a Smoke-Free Canada (PSC) today called on the federal government to refer the question of a comprehensive ban on tobacco advertising to the Supreme Court of Canada.

"We applaud the government's decision to appeal the ruling of the Quebec Court of Appeal on the Tobacco Act to the Supreme Court," said Cynthia Callard, executive director of Physicians for a Smoke-Free Canada.  "However," she continued, "this 8-year old law is neither strong enough to protect public health from tobacco marketing nor strong enough to meet the standards set by the new Framework Convention on Tobacco Control, the FCTC."

Canada ratified the FCTC on November 26, 2004  The treaty obliges the Canadian government to adopt a comprehensive ban on tobacco advertising before February, 2010. ' By referring the larger issue of this comprehensive ban to the Supreme Court now, the government will clear the legal air in time for this obligation to be met," said Callard.

The FCTC states, "Each Party shall, in accordance with its constitution or constitutional principles, undertake a comprehensive ban on all tobacco advertising, promotion and sponsorship."

The current federal Tobacco Act restricts tobacco advertising but does not ban it, so it does not qualify as a comprehensive ban on tobacco advertising.  There is a provision in the FCTC that allows parties to to the Convention to merely restrict advertising if a comprehensive ban if not in accord with the country's constitution. 

"The popular belief that Canada 's constitution does not allow tobacco advertising to be banned is an incorrect interpretation of the 1995 Supreme Court ruling," said Callard. "The Court did not rule that there could never be a total ban on tobacco advertising, only that it had to be justified with evidence."  In 1995, 5 of 9 judges felt that sufficient justification had not been shown, and struck down the law.

Although Health Minister Diane Marleau promised, in 1996, to re-introduce a total ban and provide sufficient evidence to satisfy the court, her successor, David Dingwall, under great pressure from Quebec arts and sporting events, backed down and introduced a weaker bill.

Now, ten years later, the evidence in favour of a total ban on tobacco advertising is stronger and more voluminous.  The new evidence led Judge André Denis in his Quebec Superior Court decision in favour of the Tobacco Act in December 2002 to state, "A close reading of all the opinions handed down by the Supreme Court in the first case, together with the evidence introduced at this trial indicates that a total ban on tobacco advertising would be much more easily defended now than in 1989."

"We need a clear answer from the Supreme Court on whether or not a comprehensive ban on tobacco advertising is constitutional.  To get that answer, we call on the government to proceed by way of a formal reference of the question to the Supreme Court  as soon as possible." concluded Callard.