Tobacco Documents Online

645 107 5 i0 15 2O 25 (18), and through the experts, that advertising is not one of the factors which determine whether a young person will take up smoking. There will be evidence to show that the Supreme Court of Canada was correct when it found in Irwin Toy, that at some time around adolescence or before, young people become just as capable as adults in recognizing advertisements and dealing with them. There will also be evidence, through the experts, as to what has happened in countries which have banned advertising, because there have been advertising bans in a number of countries over the past decade or so. That evidence, I believe, will show the Court thit advertising bans are ineffective in reducing overall consumption and in particular that they've been ineffective in reducing the incidence of smoking among the young. The witnesses who will deal with that will be, first of all, Dr. Leonard Reid, he'll be followed by Mr. Michael Waterson and then by Dr. John Jenkins. An expert report was filed, My Lord, for Dr. Amit. But on reading the expert reports, numerous expert reports which have been filed for the Attorney General, it is clear to me that Dr. Amit's evidence is really rebuttal in its nature and he will be called as a AUDIOTRANSCRIPT, Division de Pierre Viloire & Associ~s L,4e

646 108 i0 15 2O 25 rebuttal witness. Now, there are other_tests under Oakes and most of the evidence which I've been outlining relates to that first test: is this law going to be effective, is it designed to achieve its objective? Our answer on that evidence will be no. The second test which arises here and which will be the subject of a lot of comment and some evidence is that if -- if guaranteed rights are to be limited at all in order to achieve some satisfactory purpose, then they must be limited to the minimum necessary to achieve that purpose. I mean it is not all right under the Charter to suppress guaranteed rights altogether, even if there's a good reason to do so if the purpose could be achieved by a lesser limitation. Our contention is that Bill C-51 fails this test as well. The evidence on that will be more limited as far as witnesses are concerned, but in the book of legislative authorities, My Lord, you will find the Federal Regulations concerning, the advertisements .for, alcoholic beverages on television and radio. And as you will see, when the time comes to examine those in detail, the Government of Canada itself, in its regulations, makes a clear distinction between brand preference advertising for beer and alcohol, which is permitted on television. AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associgs Lt¢e

647 109 5 I0 15 2O 25 And advertising which is intended to induce overall consumption -- I'm sorry, I should have said brand advertising is permitted. Advertising designed to induce overall consumption is prohibited. Now, there is a legislative initiative which draws the line between choice of brands which, after all, can have nothing to do with any purpose set out in Bill C51. It must be a matter of complete indifference to the government.whether smokers smoke one brand or another. And that law, the regulations, the broadcasting regulations, make that distinction very clear. Brand preference advertising is allowed, advertising intended to induce overall consumption is prohibited. The same distinction is made, and it appears from the legislative record we have filed, in eight (8) of the Canadian provinces, all of which have their own regulations concerning the advertising of alcoholic beverages. They all make the same distinction: brand preference advertising is permitted, advertising to induce overall consumption~ is prohibited. And it will be our contention that in the light of that recognition by the Government itself that there is a difference between the two (2) kinds of advertising, and the obvious fact, the choice of brand is indifferent to the purposes of the Bill, that the Bill goes too far, even

648 ii0 i0 15 2O 25 if it was,otherwise valid,, and fails to meet the second test. So the... THE COURT: Just out of curiosity, which are the two (2) provinces that have not... Me IRVING: Well, the two (2) provinces that actually banned alcoholic beverage advertising altogether... THE COURT: Altogether. Me IRVING: ...are New Brunswick, is one, and I think British Columbia is the other. Though in this province, for instance, in Quebec for example, you will find those regulations. Ontario. Now, I don't want to go ahead of myself, but... THE COURT: No, no, I was just, out of curiosity. Me IRVING: No, no,.-My Lord, but that legislative record also has-to do with the division of power as it shows you. But the provinces are perfectly capable of dealing with advertising for products such as alcohol, and do so. So the evidence on that point is really simply the legislative record, plus the evidence of the experts who AUDIOTRANSCRIPT, Divi,ion de Pierre Vilaire & A,soc~s Ll4e

649 iii I0 15 20 25 will be explaining to.the Court what brand preference advertising really.is and.its effect. Now, there is another matter on which only limited evidence will be necessary. I said earlier that the ban is directed to Canadian advertising and Canadian products, but there is an exemption for foreign advertising. There will be evidence to show that almost two-thirds of all magazine advertisements for cigarettes in Canada are American in origin, they come in in American magazines, they will continue to come in: the Marlboro man and the Virginia Slims woman were heavily referred to in expert evidence on the other side, and will continue to appear in Canadian homes just as they always did. And it will be our position that even if it could be said that the disappearance of cigarette advertising would have some effect, that it would somehow reduce consumption or make cigarettes less socially acceptable, that this bill-won't achieve the purpose anyway, because, the American advertising will continue. We will call evidence to show that although the share of market in Canada at the moment of American brands is very low, it's only about one percent (1%), that that is the result of duties, customs duties and AUDIOTRANSCRIPT, Division de Pierre Vilo~re & Associ~s L,4e

650 112 5 i0 15 20 25 the pricing policies of the companies in Canada. They are simply sold. asa premium product. But there will be evidence to show that at one time in the not very distant past, the share of market American cigarettes had in Canada was substantial. And there will be evidence to show that if this law remains in force and if the Canadian companies are unable to advertise their brands, while their American competitors are free to advertise theirs, and those are products which are freely.available in Canada, then the inevitable result will be a gradual, but inexorable increase in the share of market held by foreign competition and the effect of this law is simply going to be to deprive Canadian companies of their primary competitive tool and favour their foreign competitors. My Lord, before I finish with section l, and I've almost finished, there is only one other matter which I think I should draw to the Court's attention now. It's referred to in the rule 18 which was filed. As the Court knows-, we have now. been served with a certificate made under -- and an Affidavit -- made under section 39 of the Canada Evidence Act. That certificate. THE COURT: Oh, you are referring to your... AUDIOTRANSCRIPT, Division de Pierre Vilaire & AssociCs L,4e

651 113 5 10 15 2O 25 Me IRVING: No, no,-I~m-referring .to..the~certif:icate under Section 39 of the Canada Evidence Act, My Lord. It's in the Court record. I'll come back to it afterwards. THE COURT: Yes, I have it. Okay, I was working with the old Evidence Act. Me JOYAL: 36. Me IRVING: 36. It's now 39. The effect of that certificate, My Lord, simply is that -- that some five hundred and sixteen (516) documents are either in whole or in part withdrawn from -- from any scrutiny either by my friend's adversaries or even from the Court. Your Lordship, even Your Lordship cannot look at any of those documents and say now just a minute, this is really not secret, nothing can be said, no one can look at them. That is what Section 39 permits,~that is what the Attorney General~-has chosen to-do.-These~documents, of course, must all be relevant. There is no point in invoking a certificate for documents which don't have anything to do with the case. And you will see, because of the nature of Section 39, that these documents are to be hidden from you and AUDIOTRANSCRIPT, Division de Pierre Vilaire & Associ~s Ltge

652 114 i0 15 20 25 from us not because they're sensitive, not because they deal with. national...security, or any of the good reasons for drawing a curtain around some sensitive Government documents but simply because the Government of Canada has chosen, they don't have to, they have chosen to invoke the broadest form of cabinet secrecy which I think still exists anywhere in -- in -- certainly in any of the countries with our legal tradition. It is a very draconian rule and abandoned by the provinces. It's been abandoned in the United Kingdom. It's been abandoned in the United States but it still exists in the Evidence Act. Now, if we were to challenge the constitutional validity of Section 39, My Lord, I say it is an obvious affront to the concept of the Charter as the supreme law of Canada. But if we were to do so, because we would be raising a very major issue, we might possibly, in the fullness of time have a judgement which would permit Your Lordship to see the documents my friends don't wish you to see. But in the. meantime, this trial could not go on. And it is only for that reason that we do not challenge it. The result is that for the purposes of this case, the Attorney General can come to Your Lordship's Court and say "I have an evidentiary burden to satisfy, I will AUDIOTRANSCRIPT, Dive,ion 4e Pierre %"ilair, ,% As,o¢i~, L,4e

653 115 i0 15 20 25 satisfy it by showing you the documents I wish to show you but those.I don!.t want anyone to see, you will never see". They have that right as long as Section 39 exists. But I simply want to make our position very clear at the outset, before the trial begins. It will be our submission that the Attorney General can do one of two things but not both. He can invoke Section 39 with the effect I have just described, that a large number of relevant documents will never see the light of day. Or he can put what is relevant before the Court and perhaps then discharge the burden of proof which lies on him but he cannot in my submission do both, and it will be our position that unless that certificate is withdrawn now and the documents are made available, it will be our final argument -- and I don't want to take anyone by surprise -- that the evidentiary burden cannot be satisfied no matter what evidence is given to the Court that I -- that a party cannot come to Court and say "yes, I have a burden of proof to satisfy. Here are the documents,, here's the evidence that I wish the Court to see and on that evidence I will invite you to say I have discharged my burden". But, at the same time, keep hidden a whole series of other documents which are relevant. That can't be done in my submission and I just wanted it clear on the record, before the AUDIOTRANSCRIPT, D~,,i~io,~ de Pierre Vilcfire & Asso¢i6s L,4e

654 116 5 i0 15 20 25 case begins, that that will be our position. My Lord, I think that is. all I .have to say at this point on Section 1 of the Charter of Rights, the first branch of the case. THE COURT: Have you put in your book the Canada Evidence Act... Me IRVING: We have it here, My Lord, I'm not sure if the whole act is there but we'll get a copy for the Court if there isn't one there. Is it there? THE COURT: I have one in my office but I couldn't find it in my '85 revised statutes. Me IRVING: My Lord, that is all I have to say about the Charter of Rights. May I turn very briefly to the second (2nd) branch of the case which is the Division of Powers. It will not be necessary to call a great deal of evidence on that aspect of .the case because it's mainly a matter of law, but.some of the.evidence does bear on it and I should just take a moment to try to put it in its context. As I read the contestation and the statement of fact and law which have been delivered by the Attorney General, the position which he is taking is that Bill C-51 is valid Federal Legislation, not because AUDIOTRANSCRIPT, Division cle P~erre Viloire & Associ~s Lt~e