RJR-MacDonald Inc. v. Canada (Attorney General)

LAMER C.J. -- I have had the benefit of reading the reasons of my colleagues. I am in agreement with the reasons of my colleague, Justice Iacobucci, but agree with my colleague, Justice McLachlin, as to the disposition.

The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by

LA FOREST J. (dissenting) -- The issues in these appeals are whether the Tobacco Products Control Act, S.C. 1988, c. 20 (the "Act"), falls within the legislative competence of the Parliament of Canada under s. 91 of the Constitution Act, 1867 , either as criminal law or under the peace, order and good government clause, and if so whether it constitutes an infringement of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms which is not justified under s. 1 of the Charter . In broad terms, the Act prohibits, subject to specified exceptions, all advertising and promotion of tobacco products, and prohibits the sale of a tobacco product unless the package containing it sets forth prescribed health warnings and a list of the toxic constituents of the product and of the smoke produced from its combustion.

These proceedings began with two separate motions for declaratory judgments before the Quebec Superior Court. The appellant RJR - MacDonald Inc. ("RJR") seeks a declaration that the Act is wholly ultra vires the Parliament of Canada and invalid as an unjustified infringement of freedom of expression guaranteed by s. 2(b) of the Charter . The appellant Imperial Tobacco Ltd. ("Imperial") seeks the same order, but only in respect of ss. 4, 5, 6 and 8 of the Act. The two motions were heard together before Chabot J. of the Quebec Superior Court who rejected the Attorney General of Canada's contention that the Act was valid either as criminal law or under the peace, order and good government clause, and declared the whole of the Act ultra vires the Parliament of Canada. He further held the Act was of no force or effect as an unjustified infringement of s. 2(b) of the Charter . The Quebec Court of Appeal reversed this judgment. While upholding the judge's conclusion regarding the criminal law power, it unanimously held that the Act was intra vires Parliament as falling within the peace, order and good government clause and, by majority, that the infringement of s. 2(b) of the Charter was justified by s. 1 of that instrument. The minority judge would have held ss. 4 , 5 , 6 and 8 invalid under s. 2(b) of the Charter .

The appellants sought and were granted leave to appeal to this Court.

The Legislative Scheme

The Act, the long title of which is An Act to prohibit the advertising and promotion and respecting the labelling and monitoring of tobacco products, received Royal Assent on June 28, 1988 and came into force on January 1, 1989. The purpose of the Act is set out in s. 3, which reads:

3. The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular,

(a) to protect the health of Canadians in the light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;

(b) to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and

(c) to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products. Section 3 thus states that Parliament's purpose in enacting the legislation is to address the "national public health problem of substantial and pressing concern" arising from the use of tobacco, by protecting young persons and others from inducements to use tobacco products, and by enhancing public awareness concerning the hazards of tobacco use. However, it is of significance to these appeals that, with the exception of a prohibition on the distribution of free samples of tobacco products under s. 7, the Act does not purport to proscribe the sale, distribution or use of tobacco products. Rather, as its long title indicates, the Act seeks to attain its purpose through the institution of a prohibition on the advertising and promotion of tobacco products offered for sale in Canada and through the institution of a requirement that manufacturers of tobacco products display health warnings on tobacco product packages.

In furtherance of the purpose set out in s. 3, Parliament has created a legislative scheme that targets three distinct categories of commercial activity: advertising, promotion and labelling. Sections 4 and 5 of the Act, which fall under the title "ADVERTISING", deal with the advertisement and display of tobacco products. Section 4 prohibits the advertisement, by publication, broadcast or otherwise, of tobacco products offered for sale in Canada. An exception to this prohibition is created by s. 4(3) and (4), which stipulate that the prohibition does not extend to foreign advertising in foreign publications imported into Canada or foreign broadcasts retransmitted in Canada, as long as those advertisements are not intended primarily for the purpose of promoting the sale of a tobacco product in Canada. Section 5 is directed to the retail display of tobacco products in retail establishments and vending machines. Section 5(1) stipulates that a retailer may expose tobacco products for sale and may post signs that indicate, other than by their brand names or trade marks, the tobacco products offered for sale on the premises. Section 5(2) permits the operation of tobacco vending machines, and the identification of products and prices on the exterior of the machines.

Sections 6 to 8 of the Act fall under the title "PROMOTION", and deal with various direct and indirect promotional activities involving tobacco products. Section 6(1) stipulates that the full name of a tobacco manufacturer may be used in a representation to the public that promotes a cultural or sporting event, but prohibits the use of brand names in such representations unless the use of a brand name is required by a contract made before January 25, 1988. Section 6(2) stipulates that, where a contract requiring the use of a brand name was in place before January 25, 1988, the value of contributions under that contract are frozen at 1987 levels. Section 7 prohibits the free distribution of tobacco products in any form. Section 8 prohibits the use of a tobacco trade mark on any article other than a tobacco product, and also prohibits the use and distribution of tobacco trade marks in advertising for products other than tobacco products; however, a special exemption from the s. 8 prohibition is created under s. 8(3) for the "Dunhill" trade mark.

Section 9 falls under the title "LABELLING", and prohibits tobacco manufacturers from selling their products unless they display on the package containing the product unattributed messages describing the health effects of the product as well as a list of the product's toxic constituents and the quantities of those constituents present in it. Section 17(f) authorizes the Governor in Council to adopt regulations prescribing the content, position, configuration, size and prominence of the health messages. Under the Tobacco Products Control Regulations, amendment, SOR/93-389, s. 11 (July 21, 1993), every tobacco package must display one of the following messages:

11. (1) . . .

(a) . . .

(i) "Cigarettes are addictive" . . .

(ii)"Tobacco smoke can harm your children" . . .

(iii) "Cigarettes cause fatal lung disease" . . .

(iv) "Cigarettes cause cancer" . . .

(v)"Cigarettes cause strokes and heart disease" . . .

(vi) "Smoking during pregnancy can harm your baby" . . .

(vii) "Smoking can kill you" . . .

(viii) "Tobacco smoke causes fatal lung disease in non-smokers" . . .

Section 17(g) also authorizes the Governor in Council to require leaflets providing health information to be placed inside packages of a tobacco product and to prescribe their content, form and manner of placement in those packages. Under s. 9(2), tobacco manufacturers are prohibited from displaying on their packages any writing other than the name, brand name, trade mark, and other information required by legislation.

One further provision of the Act is of relevance to these appeals. Section 17(a) gives the Governor in Council power to make regulations exempting a tobacco product from the application of ss. 4 and 7 where, in the opinion of the Governor in Council, that product is likely to be used as a substitute for other tobacco products and poses less risk to the health of users than those other products.

The enforcement provisions of the Act are found in ss. 11 to 16. These provisions confer upon the Minister the power to designate a "tobacco product inspector" with powers of inspection, search and seizure, analysis, detention of things seized, and forfeiture. The "offences and punishments" for contravention of the Act are set out in ss. 18 and 19. Section 18 stipulates that every person who contravenes ss. 4, 6(2), 7, 8, 9 or 10 is guilty of an offence punishable on summary conviction or an indictable offence. The penalties range in seriousness from a fine not exceeding two thousand dollars or six months' imprisonment, or both, for a first offence on summary conviction, to a fine not exceeding three hundred thousand dollars or two years' imprisonment, or both, for a second or subsequent offence pursued by way of indictment.

The Relevant Statutory Provisions

For ease of reference, I set out the relevant provisions of the Act as follows:

4. (1) No person shall advertise any tobacco product offered for sale in Canada.

(2) No person shall, for consideration, publish, broadcast or otherwise disseminate, on behalf of another person, an advertisement for any tobacco product offered for sale in Canada.

(3) For greater certainty, subsection (2) does not apply in respect of the distribution for sale of publications imported into Canada or the retransmission of radio or television broadcasts originating outside Canada.

(4) No person in Canada shall advertise a tobacco product by means of a publication published outside Canada or a radio or television broadcast originating outside Canada primarily for the purpose of promoting the sale in Canada of a tobacco product.

(5) Notwithstanding subsections (1) and (2), the manufacturer or importer of a tobacco product may advertise the product by means of signs at any time before January 1, 1991, if

(a) the amount, determined in accordance with the regulations, expended by the manufacturer or importer on the preparation in 1989 of materials for use in signs and on the presentation of signs in that year does not exceed two thirds of the expenses of the manufacturer or importer, determined in accordance with the regulations, incurred during its last financial year ending before January 1, 1988 for such preparation and presentation;

(b) the amount, determined in accordance with the regulations, expended by the manufacturer or importer on such preparation and presentation in 1990 does not exceed one third of the expenses of the manufacturer or importer, so determined, incurred therefor during the financial year referred to in paragraph (a); and

(c) a health warning is provided in accordance with the regulations on any sign put in place after the coming into force of this Act.

(6) In subsection (5), "sign" does not include

(a) a sign displayed at the place of business of a retailer; or

(b) a representation described in paragraph 6(1)(a) or (b).

5. (1) Notwithstanding section 4, a retailer may

(a) expose tobacco products for sale at the retailer's place of business;

(b) post in that place, in the prescribed form, manner and quantity, signs that indicate, otherwise than by their brand names or trade marks, the tobacco products offered for sale and their prices;

(c) where the retailer's name or trade name contains any word or expression signifying that tobacco products are sold by the retailer, employ that name or trade name, otherwise than in association with a tobacco product, for the purpose of advertising the retailer's business, except by means of a radio or television transmission; and

(d) display at the retailer's place of business, at any time before January 1, 1993, an advertisement or portion thereof

(i)that was displayed in that place before January 25, 1988, or

(ii)that the retailer is obliged to display under the terms of a contract entered into before January 25, 1988, other than a term allowing for the extension or renewal of the contract after that day.

(2) Notwithstanding section 4, a person who operates a vending machine that dispenses tobacco products may identify or depict those products and their prices on the exterior of the vending machine in the prescribed form and manner.

6. (1) Notwithstanding section 4 and subsection 8(1) but subject to subsection (2) of this section, the full name of a manufacturer or importer of tobacco products and, where required by the terms of a contract entered into before January 25, 1988, the brand name of a tobacco product, may be used, otherwise than in association with a tobacco product, in a representation to the public

(a) that promotes a cultural or sporting activity or event; or

(b) that acknowledges financial or other contributions made by the manufacturer or importer of the tobacco product toward such an activity or event.

(2) Where, in any calendar year, a manufacturer or importer of tobacco products makes financial or other contributions toward cultural or sporting activities or events in respect of which brand names of those products are used, the value of such contributions, determined in accordance with the regulations, shall not exceed the value, so determined, of the contributions made by the manufacturer or importer toward cultural or sporting activities and events in 1987.

7. (1) No distributor shall distribute tobacco products in the absence of consideration therefor, or furnish tobacco products to any person for the purpose of their subsequent distribution without consideration.

(2) No person shall offer any gift or cash rebate or the right to participate in any contest, lottery or game to the purchaser of a tobacco product in consideration of the purchase thereof, or to any person in consideration of the furnishing of evidence of such a purchase.

8. (1) No manufacturer or importer of tobacco products who is entitled to use any trade mark in association with those products, and no person acting with the concurrence or acquiescence of such a manufacturer or importer, shall

(a) apply the trade mark, in any form in which it appears on packages of the product that are sold in Canada, to any article other than a tobacco product or a package or container in which a tobacco product is sold or shipped, or

(b) use the trade mark in any such form for the purpose of advertising any article other than a tobacco product or any service, activity or event, notwithstanding that the manufacturer or importer is, but for this Act, entitled to use the trade mark in association with that article, service, activity or event.

(2) No person shall distribute, sell, offer for sale or expose for sale any article, other than a tobacco product or a package or container in which a tobacco product is sold or shipped, that bears a trade mark of a tobacco product in any form in which it appears on packages of the tobacco product that are sold in Canada.

(3) Subsections (1) and (2) do not apply in respect of a trade mark if in 1986 tobacco products and other articles bearing that trade mark were sold at retail in Canada and the retail value of those other articles estimated in accordance with the regulations was greater than one-quarter of the retail value of those tobacco products so estimated. (4) Subsection (2) does not apply in respect of the distribution or sale before January 1, 1993 of an article manufactured before April 30, 1987, or ordered before that date from the manufacturer or supplier of the article otherwise than by the placing of a standing order that requires confirmation or is subject to cancellation after that date.

9. (1) No distributor shall sell or offer for sale a tobacco product unless

(a) the package containing the product displays, in accordance with the regulations, messages pertaining to the health effects of the product and a list of toxic constituents of the product and, where applicable, of the smoke produced from its combustion indicating the quantities of those constituents present therein; and

(b) if and as required by the regulations, a leaflet furnishing information relative to the health effects of the product has been placed inside the package containing the product.

(2) No distributor shall sell or offer for sale a tobacco product if the package in which it is contained displays any writing other than the name, brand name and any trade marks of the tobacco product, the messages and list referred to in subsection (1), the label required by the Consumer Packaging and Labelling Act and the stamp and information required by sections 203 and 204 of the Excise Act.

(3) This section does not affect any obligation of a distributor, at common law or under any Act of Parliament or of a provincial legislature, to warn purchasers of tobacco products of the health effects of those products.

17. The Governor in Council may make regulations

(a) exempting a tobacco product from the application of sections 4 and 7 where, in the opinion of the Governor in Council, that product is likely to be used as a substitute for other tobacco products and poses less risk to the health of users than those other products;

. . .

(f) prescribing, in respect of any tobacco product, the content, position, configuration, size and prominence of the messages and list of toxic constituents referred to in paragraph 9(1)(a);

(g) requiring leaflets furnishing information referred to in paragraph 9(1)(b) to be placed inside packages of a tobacco product and prescribing their content, form and manner of placement in those packages;

. . .

18. (1) Every person who contravenes section 4, 7, 8, 9 or 10

(a) is guilty of an offence punishable on summary conviction and is liable

(i)for a first offence under any of those sections, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months, or to both, and

(ii)where the person has previously been convicted of an offence under any of those sections, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months, or to both; or

(b) is guilty of an indictable offence and liable

(i)for a first offence under any of those sections, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both, and

(ii)where the person has previously been convicted of an offence under any of those sections, to a fine not exceeding three hundred thousand dollars or to imprisonment for two years, or to both.

(2) Every person who contravenes subsection 6(2) is guilty of an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months, or to both; or

(b) for a second or subsequent offence, to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year, or to both.

(3) Every person who contravenes section 14 or any regulations made under paragraph 17(i) is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding ten thousand dollars.

19. (1) A prosecution in respect of an offence under this Act, other than a prosecution under paragraph 18(1)(b), may not be instituted later than twelve months after the time when the subject-matter of the prosecution arose.

(2) A prosecution for an offence under this Act may be instituted, heard, tried and determined by a court in any territorial jurisdiction in which the accused carries on business regardless of where the subject-matter of the prosecution arose.

(3) No exception, exemption, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information or indictment for an offence under this Act or under section 421, 422 or 423 [now section 463, 464 or 465] of the Criminal Code in respect of an offence under this Act.

(4) In any prosecution for an offence referred to in subsection (3), the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.

Judgments of the Courts Below

Quebec Superior Court (1991), 82 D.L.R. (4th) 449 (Chabot J.) (translation)

Chabot J. found the Act invalid in its entirety, both as being ultra vires the Parliament of Canada under the Constitution Act, 1867 and as constituting an unjustifiable infringement of s. 2(b) of the Charter .

In his analysis of the Act under the Constitution Act, 1867 , Chabot J., at pp. 467-68, characterized it as legislation that is, in pith and substance, in relation to the regulation of advertising and promotion carried on by a particular industry. Having thus characterized the Act, Chabot J. then determined that it was not a valid exercise of the federal Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867 or Parliament's power to legislate for the peace, order and good government of Canada under s. 91 of the Constitution Act, 1867 .

With respect to the criminal law power, Chabot J. reasoned that the Act was not valid criminal law because it was not addressed directly to the "evil" against which it was purportedly aimed, i.e., tobacco consumption. He observed, at p. 470, that "advertising in itself does not cause harm, any more than the advertising of tobacco products is by itself harmful to health" and, at p. 468, that "[t]he objective of protecting public health, if it exists, can only be an indirect and remote objective [of the Act]".

Turning to the peace, order and good government clause, Chabot J. concluded that the Act did not satisfy the criteria for the "national dimensions" branch of that clause set forth in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. The present cases were, in his view, distinguishable from the Privy Council's decisions in the "temperance cases" (Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348 (the Local Prohibition Case), and Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193) because, in contrast with those cases, there was "no evidence that the advertisement of tobacco products has attained a stage of pestilence in Canada which would give it the required character and degree of singleness, distinctiveness and indivisibility which would distinguish it clearly from matters of provincial interest" (p. 475). Chabot J. also decided that there was no evidence of a "provincial inability" to control tobacco advertising. He observed, at p. 478, that "the evidence clearly shows the will and the capacity of the provinces to cooperate with each other and with the federal government with respect to the advertising and promotion of tobacco products".

Proceeding to an analysis of the Act's validity under the Charter , Chabot J. found the Act to be in violation of the appellants' right to freedom of expression under s. 2(b). He concluded, first (at pp. 484-85), that tobacco advertising has a sufficient expressive content to constitute a protected activity under s. 2(b) and, second (at p. 486), that the unattributed health message requirement under s. 9 of the Act infringed the appellants' s. 2(b) rights on the ground that "freedom of expression includes the freedom to remain silent".

Chabot J. then found, applying the test established by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, that the s. 2(b) infringement was not justified under s. 1 of the Charter . After considering the uncontradicted evidence adduced by the Attorney General concerning the dire health consequences of tobacco use, Chabot J., at p. 492, concluded that the Attorney General had satisfied the first branch of the Oakes test by demonstrating a "substantial and pressing concern". However, he concluded that the Act did not survive the "proportionality branch of that test. He began his proportionality analysis by holding, at p. 515, that the Attorney General had failed to establish, on the balance of probabilities, that a rational connection exists between a full prohibition on advertising and the objective of reducing tobacco consumption. He also observed, at p. 513, that "[t]he virtual totality of the scientific documents in the state's possession at the time the Act was passed do not demonstrate that a ban on advertising would affect consumption". He then decided that the complete prohibition on advertising under the Act did not meet the test of minimal impairment of the appellants' s. 2(b) rights. He observed, at pp. 515-16, that no evidence had been adduced at trial demonstrating that a complete prohibition on tobacco advertisements would reduce tobacco consumption more effectively than a partial ban, or that unattributed health warnings would be more effective than attributed health warnings. Finally, with respect to the proportionality between effects and objectives, Chabot J. concluded, at p. 517, that the Act constitutes "social engineering" and "an extremely serious impairment of the principles inherent in a free and democratic society which is disproportionate to the objective of the [Act]".

Quebec Court of Appeal (1993), 102 D.L.R. (4th) 289 (LeBel and Rothman JJ.A., Brossard J.A. dissenting in part) (translation)

The Court of Appeal allowed the appeals from the decision of Chabot J. and upheld the constitutional validity of the Act in its entirety. It was unanimous in deciding that the Act was not beyond the legislative competence of the Parliament of Canada under s. 91 of the Constitution Act, 1867 and, although the Attorney General had conceded that the Act constituted an infringement of the appellants' rights under s. 2(b), a majority (Brossard J.A. dissenting) decided that the infringement was justifiable under s. 1 of the Charter .

Writing for a unanimous Court of Appeal with respect to the constitutionality of the Act under the Constitution Act, 1867 , Brossard J.A. began his analysis by characterizing the Act as legislation, in pith and substance, in relation to the protection of public health (at p. 339). Brossard J.A. criticized, at pp. 338-39, the trial judge's pith and substance analysis on two grounds. First, he decided that the trial judge had confined himself to an excessively literal interpretation of the Act by failing to explore a possible connection between the Act's statement of purpose in s. 3 and its legal effect on tobacco advertising and promotion. Second, he held that the trial judge had confused the evidentiary requirements for the application of s. 1 of the Charter , under which the effectiveness of the legislation is a relevant criterion, with the requirements for ascertaining pith and substance in a division of powers analysis, where it is not.

Brossard J.A. then proceeded to consider whether the Act was a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 or the peace, order and good government clause under s. 91 of the Constitution Act, 1867 . He began by deciding that the Act did not fall under the criminal law power. He found it significant, at pp. 341-42, that neither tobacco consumption nor tobacco advertising are activities that have an "affinity with some traditional criminal law concern" (p. 342) and observed that, although the Act makes the advertising and promotion of tobacco products illegal, the "real evil" the Act is designed to combat, tobacco consumption, continues to be legal in Canada. Parliament, he reasoned, at pp. 340-41, cannot criminalize the ancillary activities relating to a principal activity when it has not criminalized the principal activity itself. Brossard J.A. decided, however, that the Act fell within the federal Parliament's power to legislate for the peace, order and good government of Canada because it satisfied the test for the "national dimensions" branch of that power developed in Crown Zellerbach, supra. He observed, at p. 348, that the problem of tobacco consumption has developed into a matter of national concern comparable in scope to that of alcohol consumption addressed in the temperance cases. He also noted, at p. 350, that the health problems resulting from tobacco consumption have a "singleness, distinctiveness and indivisibility that distinguish them clearly from matters that are of strictly provincial interest". Finally, he concluded that the Act met the "provincial inability test" because "[t]he fact is that communications, whether radio or television broadcasting, or even newspaper publishing, do not recognize frontiers, still less provincial borders" (pp. 350-51).

The Court of Appeal was divided on the validity of the Act under the Charter . LeBel J.A., writing for the majority, accepted that the Act infringed the appellants s. 2(b) rights, but held that the infringement was justified under s. 1 of the Charter . LeBel J.A., at pp. 311-12, first noted that the trial judge had erred in applying a civil standard of justification in his application of the Oakes analysis. He observed, at p. 313, that, in cases involving socio-economic legislation such as the Act, this Court has "recognized the need for an attitude of deference with regard to legislative choices", and has required the state to meet an attenuated standard of justification under the Oakes analysis.

Applying the attenuated Oakes standard, LeBel J.A. held that the Act was a justifiable infringement under s. 1 of the Charter . He first observed that "there does not appear to be a serious debate" that the objective of reducing the number of smokers in Canada is pressing and substantial (p. 321), and then proceeded to an application of the proportionality test. There was, he held, at p. 323, sufficient evidence adduced at trial to establish a rational connection between a prohibition of tobacco advertising and the goal of reducing tobacco consumption. He conceded that there was no evidence on the record demonstrating, on the criterion of the civil balance of proof, that the prohibition of these forms of advertising would attain that objective. However, he noted that there was sufficient expert testimony and documentation adduced at trial to "attest, at the very least, to the existence of a body of opinion favourable to the adoption of a legislative measure such as the restriction of tobacco advertising in order to diminish consumption over time" (p. 323). LeBel J.A. also observed, at p. 324, that, in Imperial's internal documentation, "there are commentaries suggesting that the objective of tobacco advertising is either promotion, recruitment of new smokers, or consolidation of market share by reassuring current smokers".

Second, LeBel J.A. held, at pp. 326-27, that the Act satisfied the minimal impairment test because the measures adopted under the Act did not prohibit consumption of tobacco, did not allow for the control of foreign advertising, and permitted the continued availability of tobacco product information at retail establishments. Finally, he found it significant that the legislative objective, addressing a serious health problem, outweighed the adverse effects of the legislation on the appellants' right to commercial expression which, he noted, at p. 326, "seeks exclusively to advance the respondents' interests in marketing, distributing and selling a product recognized as harmful".

Brossard J.A., in dissent, agreed with LeBel J.A. that the Act's objective was pressing and substantial, and that ss. 7 and 9 met the requirements of the Oakes test but, in his view, ss. 4, 5, 6 and 8 did not satisfy either the rational connection or the minimal impairment branches of the Oakes proportionality test.

With respect to the rational connection test, Brossard J.A. distinguished between three different types of advertising (at pp. 383-84): informative advertising (which disseminates information concerning product content), brand loyalty advertising (which is aimed solely at promoting one brand over another based on the colour, design and appearance of the packaging), and lifestyle advertising (which creates an image by associating the product's consumption with a particular lifestyle). Brossard J.A. found, at p. 384, that the prohibition on informative advertising and brand preference advertising was not rationally connected to the goal of reducing consumption of tobacco because "there is not a single piece of evidence in the record with any probative value to the effect that it encourages non-smokers to become smokers . . . or smokers to increase their consumption, or that it prevents smokers from reducing their consumption or quitting if they want to". However, he found, at p. 385, that the prohibitions respecting lifestyle advertising met the rational connection test owing to the testimony adduced at trial concerning the stimulative effect of such advertising upon the consumer behaviour of young persons.

Proceeding to the minimal impairment requirement, Brossard J.A. held, at p. 387, that, with the exception of the prohibition upon lifestyle advertising, ss. 4, 5, 6 and 8 of the Act did not minimally impair the appellants' rights because "it would easily have been possible to exclude from the general ban any advertising which is purely informative, there being no proof even on the level of possibility that such advertising has any impact on consumption". Thus, Brossard J.A. concluded, at p. 392, that ss. 4, 5, 6 and 8 of the Act could not be justified under s. 1 of the Charter , but that ss. 7 and 9 could be justified under s. 1 of the Charter . Brossard J.A. did not uphold the prohibition on lifestyle advertising, even though he decided it was theoretically justifiable under s. 1, because Parliament made no distinction between types of advertising in the legislation.

Issues Before This Court

The argument before this Court was conducted on the basis of two constitutional questions, stated by Chief Justice Lamer on November 4, 1993: