The Quebec Court of Appeal overturned parts of a lower court ruling that struck down certain provisions of the provincial Tobacco Control Act and upheld the constitutionality and right of the province to apply its tough and comprehensive tobacco legislation on e-cigarettes, including robust restrictions on vaping advertising.
The decision, hailed by anti-tobacco groups, held that the Quebec government had the right to curb the potential effect of electronic cigarette advertising, particularly on young people. The Appeal Court also upheld the government’s right to ban demonstrations of vaping products inside shops, something that five jurisdictions allow including Ontario and the four Western provinces.
“This is a really important judgment to protect youth from e-cigarette advertising and from tobacco companies,” said Rob Cunningham, a lawyer and senior policy analyst with the Canadian Cancer Society, intervenors in the case. “The Court recognized the importance of protecting youth from advertising. Allowing advertising where youth can be exposed to it is only going to increase youth vaping levels that would be higher than otherwise would be the case.”
Though disappointed with the decision, Daniel Payette, a Quebec City lawyer who represented the Association des Vapoteries du Québec (AVQ), said he is nonetheless pleased that the unanimous judgment found that vaping is “clearly less dangerous than combustible” cigarettes and that it can be used to “reduce harm” caused by combustible tobacco and to help people quit smoking. (Vaping has not been approved by Health Canada as a smoking cessation product).
“We regret that the Court did not go to the end of the reasoning to invalidate the legislative measures which in Quebec hinder smokers’ access to vaping products, while the Canadian Senate had clearly recommended promoting this access, while controlling the market to prevent young people from taking up vaping,” added Payette.
Read More
In 2015, Quebec passed Bill 44, the Tobacco Control Act (Act), which subjects electronic cigarettes, with or without nicotine, to the same kind of restrictive regulations as tobacco products. The sale of e-cigarettes is prohibited to anyone under 18 nor can vape products be displayed in retail outlets accessible to people under 18. Vape products cannot be purchased online, and e-cigarette advertising is banned, except in newspapers or magazines that have an adult readership of no less than 85 per cent. The federal government, concerned by the rise in youth vaping, followed suit in 2020 and restricted the promotion of vaping products and banned its display at point-of-sale where youth have access.
Two vaping organizations, AVQ and the Canadian Vaping Association (CVA), challenged the constitutionality of Bill 44. The AQV maintained that sections 2 and 3 of the Act and its regulations are ultra vires of the jurisdiction of the Quebec legislator. Both the AVQ and the CVA argued that the Act and its regulations also infringed the rights to security, inviolability and freedom of expression.
In May 2019 Quebec Superior Court Justice Daniel Dumais held that while the Quebec government had the right to limit, the government went too far and found that the prohibition against testing electronic cigarettes in stores and clinics was an infringement of s. 1 of the Quebec Charter of human rights and freedoms. Justice Dumais found that the integrity of smokers was undermined “by denying them in part greater access to a risk reduction mechanism to better preserve” their health and integrity. Justice Dumais also found that the Act’s vaping advertising restrictions infringed freedom of expression, and that this infringement was not justified because it is possible to display vaping products in a way that targets only smokers.
The Quebec Court of Appeal overturned those findings. The Appeal Court found that the Quebec government did not overstep its bounds. Instead, intrinsic and extrinsic evidence showed that the objective behind the Act was to protect public health, particularly that of young people. The Act, reminds the Appeal Court, does not only deal with electronic cigarettes. Rather e-cigarettes are only one element of the province’s legislative policy around tobacco control.
The Act “seeks to strike a balance between the protection of non-smokers and the potential benefits of electronic cigarettes to their users as a means to stop using tobacco or to reduce the harm it causes,” said Quebec Court of Appeal Justice Benoît Moore in Procureur général du Québec c. Gallant, 2021 QCCA 1701. “There is therefore no conflict between the federal statute and the 2015 Act, and they may co-exist.”
The trial judge also erred in finding that the prohibition against testing vaping products in stores was an infringement of s.1 of the Quebec Charter, held the Appeal Court. Heeding guidance from the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the Appeal Court found that the trial judge’s findings do not establish an “insufficient causal connection” between the measure and the infringement. The trial judge should have granted the Quebec legislator “room to manoeuvre” or grant sufficient deference to the strategy it adopted. There is a rational connection between the prohibition against testing in stores or clinics and the legislative objective sought, notably the protection of non-users, thereby meeting the minimum impairment test, found the Appeal Court.
“The assessment of the deleterious effects of the testing prohibition on smokers, compared to its salutary effects of neutralizing or eliminating the risks associated with electronic cigarettes to users and third parties, weighs in favour of upholding the legislative measures,” said Justice Moore.
But Payette believes that the Quebec Appeal Court “modified” the Oakes standard to “facilitate the proof of justification the State must administer” under section 1 of the Canadian Charter and section 9.1 of the Quebec Charter in the event of a violation of fundamental rights. By ensuring greater deference to the legislature, “it undermines all the rights and freedoms guaranteed by the Constitution, in particular the freedom of expression in this case,” added Payette.
The Appeal Court also found that the Quebec government had the right to limit the potential effect of e-cigarette advertising on young people and non-smokers. Pointing to research from sources such as the World Health Organization that raised concerns over climbing youth vaping rates, the Appeal Court found that it was reasonable for the the Quebec government to be concerned. Data from the Canadian Student Tobacco, Alcohol and Drugs Survey found that Quebec students in secondary IV and V vaping increased from six per cent in the 2012-13 school year to 22 per cent in the 2018-19 school year. In the rest of Canada, the figures are just as disquieting. Vaping by high school students in grades 10-12 climbed from 9 per cent in the 2014-15 school year to 29 per cent in the 2018-19 school year.
“In this case it was therefore reasonable for the legislator to intervene to limit the potential effect of advertising of the electronic cigarette, especially towards youth,” said Justice Moore. “The risks associated with the fact that the vaping industry is evolving and is gradually being taken over by tobacco companies cannot be dismissed from the legislator’s analysis either.”
The Appeal Court decision will have implications beyond Quebec. “This judgment very much supports the constitutional validity of the federal approach, which is quite similar to the Quebec legislation that was being challenged,” said Cunningham. “The Court recognized that in this area of scientific uncertainty that deals with complex social issues, there should be deference to the legislator, and I think that will have implications across the country for any other e-cigarette legislation in general.”
This story was originally published in The Lawyer’s Daily.
