Tobacco Documents Online

635 97 i0 15 20 25 society. And, My.Lord,..I~m going to come in a moment to_the. evidence on that issue that we intend to call. But before I do, I mentioned the object and purpose of the law. And somewhat unusually, C-51 has a purpose clause in it. If you look at Tab 3, you will see in Section 3, that the purpose is expressly set out. I just have one or two (2) comments on that before I come to the evidence. I'm reading now from Section 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:" And there is: "A) To protect the health of Canadians..." And so on, I won't read it all out. "B) To protect young persons and others..." And here's what I underline: "...to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence and to enhance public awareness of the hazards..." And so on. My Lord, what is unusual in this case is that that

636 98 10 15 20 25 clause was addedby amendment to the bill as you will see, partly, at least,-for.the express purpose of shielding the law from a constitutional challenge. That this is so is evident from the language, because coming back to the opening of Section 3, there is a reference to a national public health problem of substantial and pressing concern. Now, that is the language of the case law dealing with the legislative jurisdiction of Parliament to enact laws for the peace, order and good government of Canada. So Parliament has picked up here the language, which if it was made good, would tend to show that the Federal Parliament rather than the provinces had jurisdiction. The language was chosen advisedly. And then in sub-paragraph B, we find, "...to the extent that is reasonable in a free and democratic society." And they have picked up there the words of Section 1 of the Canadian Charter. There can be.no doubt that this was done with a constitutional challenge in mind.- And were there any doubt, it is entirely dissipated by a statement which was made in the legislative, in the Committee studying the Bill by Mr. Epp on the twenty-fifth (25th) of January, nineteen eighty-eight (1988) and I'm reading now from one of my friend's exhibits, the whole of the AUDIOTRANSCRIPT, Division de Pi,rr, Vilaire & Associ4s U@e

637 99 I0 15 20 25 proceedings in the Parliamentary Commission have been put before, the Court. But this is a most remarkable statement. He said this: "But I think the Bill is important first to have a purpose..." I think there's a word or two (2) missing there. "...and I think the amendment does that. Second..." And here I underline: "...in respect to a possible Charter challenge, it is our legal advice that if in fact a Charte~ challenge were to be launched, the purpose, as outlined specifically in paragraph B, would help in terms of the defence of the legislation." Now, I leave that point, but say only, My Lord, it will be for this Court to decide what the true purpose of the legislation is. And it's so evident an attempt to shield the law from a constitutional challenge, it cannot avail my friends for the Attorney-General. We will, moreover, be introducing evidence, all of it emanating from the Government, indicating that the true purpose of the law was quite different from that set out in Section 3. The documentary evidence from the AUDIOTRANSCRIPT, Division de P;erre Viloire & Associ4s Lt4e

638 100 lO 15 2O 25 Government will show that the Government was repeatedly advised and did itself_believe that an adver.tising ban would be ineffective in reducing overall consumption. I can do no better than to say that we would rely on what the same Mr. Epp said in the House of Commons in May of nineteen eighty-six (1986), and I am again reading from my friend's exhibit. Mr. Epp here was talking to Miss Lynn Macdonald, of whom there will be more later, an NDP member, who was pressing him to ban tobacco advertising. And here is what he said. I'm quoting Mr. Epp. "I am saying to her very directly, that if she is an expert in this field at all, and if she has looked at the effect that the banning of advertising has on reducing the number of smokers, then she will know that it is painfully few. There are other steps which one has to take. It.might be good visuals, and she often deals wi{h-.visuals rather than actualities, I deal with realities." That's Mr. Epp, My Lord, and that encapsulates the case for the Plaintiffs. Mr. Epp later said that he had changed his mind, perhaps he did. If he did, no doubt the evidence on which he did so will be brought to Your AUDIOTRANSCRIPT, Division ~le P;erre Vilaire & ,~,,,o~i~ L,~e

639 i01 i0 15 2O 25 Lordship's attention by my friends from the Attorney-General. But the second series of Government documents which we will be introducing seem at least to indicate that Bill C-51 was introduced by Mr. Epp in very great haste and for the purpose of preempting a Private Member's Bill banning tobacco advertising introduced by the same Mrs. Macdonald, when, because of a change in Parliamentary rules, it became apparent that Mrs. Macdonald's Bill might pass. Those documents indicate that the purpose of the Government in introducing the Bill was to get the political advantages they saw of having the Bill passed by the Government and not by a member of the Opposition. And we will also be introducing evidence to show that even if the purpose of the law was that set out in Section 3 and we say it was not, that the law nevertheless does not meet the tests which were set out in the Oakes case, and they've been repeated quite frequently in different language since. But let me just deal briefly with that. THE COURT: And the latest Irwin Toy. Me IRVING: Irwin Toy, of course, is one of the key cases on which AUDIOTRANSCRIPT. Oivls~on de Pi~rr~ Vil~ir~ ~ A~,so¢i~, Lt~e

640 102 l0 15 20 25 we will be relying. .For several propositions, I say immediately: First of all, for ,the proposition that advertising is a provincial matter. Secondly, for the proposition that commercial expression is fully protected by Section 2. The first requirement under the Oakes line of cases is that if Parliament is going to limit rights which are set out in the Canadian Charter, which after all is a very extraordinary step, then there must first be a legislative purpose which is sufficiently pressing and substantial to justify interfering with rights which are guaranteed to us all by law. My client, and Imperial as well, have both taken the position in the pleadings that if the purpose of the law is that stated in section 3, if the purpose is to reduce the incidence of smoking, it is not -- it is not contended on our part that the purpose test would not be met. In short; legislation to reduce the incidence of smoking would have sufficiently important purpose to pass the first test set out. We did not put that in issue. However, even if the purpose is satisfactory, there remain other tests and it is those tests which we say Bill 51 fails. AUDIOTRANSCRIPT, oivi,ioo de Pierre Vilaire & Asso¢i~s Ll~e

641 103 i0 15 20 25 THE COURT: I'm not.sure I:understand exactly what you,re saying. You say that if the purpose of the Act is what? Me IRVING: The stated purpose of the Act, My Lord, is to reduce the incidence of smoking, and in paragraph twenty-nine (29) of our motion we said, "For the purpose of this motion applicant has not put in issue the legislative purpose of the control~Act, as stated in section 3 thereof." So what I am saying is, we're not inviting the Court to say that Bill C-51 fails the legislative purpose test. If, but only if, Your Lordship finds that the purpose really is, as stated in section 3. So, that would be one hurdle passed by my friends on the other side. The attack under the Charter relates to the other tests set out in Oakes. And the Chief Justice of Canada~in that case said: well, if there is a legislative purpose which is important.enough, then you must turn your attention to the means which Parliament has adopted to deal to attain that purpose. He put it in 0akes that the means would have to be carefully designed to achieve the objective and to be rationally connected with that objective. And that test AUDIOTRANSCRIPT, Division 4e Pierre Viloire & Associ~s Like

642 104 i0 15 2O 25 has been restated, with differences of language, quite frequently since~ The objective, according to section 3, is to suppress the use of tobacco products. The means is to ban advertising on all tobacco products by Canadian manufacturers in Canada. It will be our case that, far from having been carefully designed to achieve that end, the ban on Canadian advertising of Canadian tobacco products was enacted with the full knowledge that it would not achieve that end. It will be our evidence that the government didn't believe that it would achieve that purpose and it will be our evidence that it will not achieve that purpose. Now, the burden here, of course, falls on the Attorney General, as was established in the Oakes case. And it was in that case that the Chief Justice pointed out that the burden is a heavier one than it is in an ordinary civil case; the proof to a balance of probabilities will not suffice. It,s something short of proof beyon~-a reasonable-doubt, but it requires proof to a high degree of probability, because... THE COURT: No, it's been watered down a bit. Me IRVING: Yes, but one must still remember, My Lord, we're dealing AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associ~s ['4e

643 105 5 i0 15 2O 25 with protected rights which are being infringed,, and it would only.be reasonable that the.burden of proof would be substantial. There is no burden on the applicant to show that a ban on advertising is not justified. And as a matter of law, it will be sufficient for us to simply put before you brief evidence as to the advertising practices of the company and sit down. However, we are going to go beyond that limited objective. We will first call Mr. Peter Hoult, who at the time Bill C-51 was enacted was the President and the Chief Executive Officer of RJR Macdonald. His background with the company, prior to becoming President and Chief Executive Officer, was in the marketing area. And he will explain the nature and the purpose and the function of advertising within the company as, in fact, it was carried on in the years preceding the ban. We will be filing, through Mr. Hoult, a rather limited number-of documents, which are really all agreed documents and I've put them in a book which I'll hand in when Mr. Hoult takes the stand, My Lord, so that the Court will be able to follow his evidence through the document. I'm sorry. that I have a very bad cold. My problem with my voice, My Lord, is I apologize. It's an AUDIOTRANSCRIPT, Divi,ion de Pierre Vilo;re & Associ~s Lt~e

644 106 i0 15 2O 25 annual event and.it happened to fall on today. Me BAKER: This will not trigger an application for another postponement. Me IRVING: No. Now, My Lord, not because there's any evidentiary burden resting on the applicant, but just so that our evidence can be represented as a coherent whole, we will be calling, after Mr. Hoult has testified and his opposite number or numbers at Imperial have testified, a limited number of expert witnesses, really to confirm much of what Mr. Hoult will have said, but to show essentially that the purpose of brand advertising for products, such as cigarettes, which are universally known, is an attempt to keep the loyalty, the brand loyalty of those who are already using a particular brand and to try to persuade smokers of other brands to switch. That expert evidence will indicate that advertising for products in a. mature market, a market for a product which is universally known and universally available, doesn't affect overall consumption, but does affect brand preference and brand share. There will also be evidence through Mr. Hoult that RJR Macdonald has never advertised to children, that it doesn't advertise to anyone under the age of eighteen