Proceedings of the Standing Senate Committee on
Issue 51 - Evidence
OTTAWA, Wednesday, March 20, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-71, to regulate the manufacture, sale, labelling and promotion of tobacco products, to make consequential amendments to another Act and to repeal certain Acts, met this day at 10:32 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
The Chair: Good morning, senators. We will continue with our consideration of Bill C-71.
I take particular pleasure in welcoming this morning, in addition to our witnesses, some delegates from the Forum for Young Canadians. I believe this bill is a particularly appropriate one for them to observe this morning.
We have invited Professor Gerald Gall of the Faculty of Law of the University of Alberta and Professor Hester Lessard, Faculty of Law at the University of Victoria, to set the stage for us in terms of the constitutional questions which arise about this particular bill. On Term 17, we asked two professors to give us an overview in terms of the legal and constitutional implications, particularly the constitutional ones. In the same way, we have asked these professors to attend today and give us the benefit of their breadth of their experience in evaluating the legislation and to pose for us the kinds of questions we perhaps should be asking as we go through this deliberation.
Welcome to you both. Professor Lessard, please proceed.
Ms Hester Lessard, Faculty of Law, University of Victoria: Madam Chai, as I understand it, our purpose here is to raise some of the questions with respect to the Charter implications of Bill C-71. There are two very broad concerns raised by legislation of this type under the Charter.
The first relates to the sorts of issues that were the focus of the RJR-Macdonald case, namely the scope of freedom of expression and the constitutional acceptability of limits placed by government on those freedom-of-expression rights.
The second relates to due process considerations with respect to the investigative and enforcement apparatus which is present in the legislation, specifically the reverse onus provisions and the provisions for warrantless searches which, on their face, might appear to raise Charter issues.
I propose to speak very briefly about the first kind of issues, the kind of questions that arise with respect to limits on freedom of expression. Professor Gall will continue along that line and also touch on the due process considerations.
As you know, our court has defined freedom of expression in very broad terms. The guarantee protects any activity which conveys meaning, including purely commercial activities such as we have here. The key issue in Charter challenges to legislation of this type is not so much whether there is a rights issue at stake but the acceptability of government limiting the right. Our Charter says that government may place limits on rights so long as those limits are reasonable and demonstrably justifiable in free and democratic societies. I wish to concentrate specifically on the meaning of that phrase.
The court has laid down two very important interpretative directives with respect to our approach to section 1 limits which are particularly important when looking at legislation of this type.
The first directive is that government bears the onus of demonstrably justifying the reasonableness. This was key in the RJR litigation. Government must demonstrate why, in fact, this is a reasonable limit.
The second interpretative directive of particular importance when dealing with commercial expression challenges is that the court will take a contextual approach to the balancing of the individual right against the social value of the legislation.
In other words, when considering legislation such as Bill C-17, the court will not pose the abstract principle of freedom of expression against the very broad social value of the health of Canadians. Rather, the court will be much more specific about the claim, will look at it in context, and will specifically characterize it in terms of its predominant characteristics, namely commercial activity.
This is important when dealing with commercial expression because it is generally accepted that it is quite reasonable in free and democratic societies to impose extensive controls on commercial activity. Commercial expression is protected. It does have constitutional value. Yet, at the same time, democratic societies reasonably control market behaviour. That is particularly important when looking at this legislation.
On the other side, the court will also contextualize the government's objective here and look more specifically at the objective of the infringing provisions. When you are talking about freedom of expression, as the court said in RJR, you are really talking about the objective of reducing the health impacts of tobacco use with respect to advertising-related consumption. It is a much more tailored notion of the countervailing social value.
With those two very important interpretative directives in mind when looking at the legislation, the court then will analyze whether this is a reasonable limit. The court, in its jurisprudence, has divided this analysis into three basic components. The first two components with respect to this particular act are not all that controversial, so I will quickly mention them and end by focusing on the most controversial aspects of the inquiry.
The first question the court asks is whether this is a limit prescribed by law. The operative idea here is that while we do accept some government limits on rights, those limits must take the form of clear and intelligible legal rules. Here we have a statute, so clearly it is a legal prescription. It is prescribed by law. However, the court has said that, even if you have a statute, if there are provisions in that statute -- classifications, concepts, conferrals of discretions and decision-makers -- which are so broad and vague that they are not clear, intelligible, legal standards, then it may run afoul of the principle that limits may be prescribed by law. That has been a big issue in the commercial expression cases. It generally goes under the notion of vagueness and the idea of unconstitutional vagueness in the limits.
Even though you mention them at this first stage of the analysis, the court has also said that it is much more comfortable dealing with them later on under the third component, so I will return to the kinds of vagueness questions that might arise in a few minutes.
The second component of the reasonable analysis relates to the purpose of the law. The court has said that while it may be acceptable for governments to limit rights, when they do so, they must have a good, substantial, and compelling purpose. That again is not controversial here. The court in RJR-Macdonald, with a predecessor statute, made it quite clear. Even Justice McLachlin, who gave it the toughest time in her reasons, made it clear that even the modestly framed objection of reducing advertising-related consumption of tobacco products was substantial and compelling.
That brings us to the third component which is where all the action really takes place. Here all the pressure comes to bear when analyzing a piece of legislation such as this; and that is what is called the proportionality analysis. The operative concept here is that while government may limit rights, so long as the limit is prescribed by law and so long as government has a substantial and compelling purpose when doing so, government must show that it has been sensitive to the injuries to rights, that this is a rights-impairing piece of legislation. It must demonstrably show that it has made efforts to injure the rights as little as possible, to shape and design the legislation in a way that displays that kind of care and consideration for the rights that are being diminished in order to accomplish the important goal of the legislation.
That is the operative concept. The focus is on the design of the legislation. It is often called the legislative tailoring analysis -- whether the legislative garment, so to speak, has been appropriately tailored to accomplish its purpose in light of the important Charter principles at stake.
Here the court again has structured its analysis into three questions. The first question is whether there is a rational connection between the mechanisms that the lawmakers have chosen to use in order to accomplish their aims and the goals of the lawmakers.
Here, in the RJR-Macdonald litigation, the Supreme Court of Canada looked at the kinds of legislative devices which are very much the same kinds of devices in Bill C-71: bans on advertising, restrictions with respect to promotion and sponsorship of events, uses of trademarks on non-tobacco products and the requirement of warning labels. For most of those, the majority found that there was indeed a rational connection. The exception was the absolute prohibition on the use of trademarks on non-tobacco products. However, for the most part, the court found that there was that requisite connection.
The important thing here, which goes again to that basic interpretative directive that it will contextualize its analysis, is that even the McLachlin majority made it very clear that one does not require hard, scientific proof of the causal link. In other words, the inclusive scientific evidence on the link between advertising and consumption of tobacco is not fatal at this point. It is helpful if it is there, but it is not fatal. The court made it very clear that what one needed here ultimately was a logical, causal relation based on logic and common sense. Most of the legislative devices met that standard from the perspective of the majority at the Supreme Court of Canada, except for the one with respect to absolute prohibitions on trademarks.
The second question the court asks in terms of the proportionality analysis is called the minimum impairment question. The court asks whether government has, first, considered alternatives and looked at whether there are ways of achieving their goals that are less drastic, less injurious to rights, and whether it has chosen the one that impairs the right as little as is reasonably possible. Here again there is emphasis on the term "reasonable." This is often called the "least drastic means analysis" and demands evidence of looking at what the alternatives are and whether in fact the best one has been chosen.
In RJR-Macdonald, as you know, this is where the government lost its case. This is the toughest scrutiny of legislation that occurs with respect to this question.
In RJR-Macdonald, the court found that the government had not demonstrated that a total ban was required, that unattributed warnings were required, and that understanding of it is important. In other words, RJR-Macdonald does not stand for the proposition that you cannot have a total ban; that you cannot have comprehensive restrictions. It stands for the proposition that if you will go as far as having total bans, you must have very good evidence of why that is necessary. That is important in terms of the fact that the court is not crafting inflexible rules that are disconnected from reality. It is saying that total bans are problematic but it is certainly not closing the door. It is just saying that they want very solid evidence.
The drafters of Bill C-71 clearly took their directions from the court's decision and basically redesigned the act so that now we have partial bans and partial restrictions. So you have a direct response to what the Supreme Court of Canada said in RJR-Macdonald. You have an attempt made in good faith to avoid that kind of overreaching and impairment of rights.
The flip side of that, though, is the positive aspect of total bans -- they are very clear. Everyone knows what they mean. You absolutely may not do any of this activity. When you attempt to tailor legislation and substitute partial bans and partial restrictions on activity, you raise another kind of minimum impairment problem -- that of vagueness. This is where vagueness comes back or the notion of over-breadth.
By tailoring the legislation and imposing partial bans, you must distinguish between different kinds of advertising; you must tailor your prohibitions so that they actually get at the problem of youth becoming addicted to tobacco as a problem of lifestyle advertising, et cetera.
In a sense, it is being caught between a rock and a hard place. When you go to the tailoring you must be careful to ensure that the legislation does use clear and intelligible standards in making those distinctions. The court has made it very clear that, with respect to these questions, it is not asking government to lower its expectations but simply to be careful.
This is not an inflexible and impossible standard to meet. There is a lot of what we call "margin of appreciation" here. A very good example of the realism in terms of the court's assessment here is the other leading case in commercial expression, Irwin Toy, in which there was a vigorous attack in terms of vagueness on Quebec's consumer protection legislation which banned advertising aimed at children. That was a partial ban again, just a ban on advertising aimed at children. Because it tailored that, it had to define what advertising aimed at children was, which is very difficult when dealing with broadcast medium. It said that there are three variables and that they could come up with an approximate notion of what advertising directed to children is. That was acceptable to the court, even though in fact it did not yield a clear-cut clarity. We are talking again about flexibility and reasonableness.
In addition, the court looks not only at the text of the legislation but at the legislation, the regulations, the judicial interpretation of the text in the regulations and at the administrative support in terms of indicating what exactly is prohibited behaviour and what is not prohibited behaviour. Those would be the kinds of questions that might be raised with respect to Bill C-71.
The final question that the court asks under the proportionality analysis is whether, at the end of the day, the balance between the harmful impacts on rights and government's important, substantial and compelling objectives outweigh those harmful effects.
In other cases, the court has made it clear that it will look not just at the important purpose of government's legislation but also at the actual beneficial effects flowing from the government's legislation. In other words, even though it is a substantial and compelling purpose, and even though the government has been careful in tailoring its legislation, there might be situations where there just are not enough beneficial effects flowing from the legislation to justify impairing rights. Again, that goes to the importance of monitoring and ensuring that the desired effects are occurring.
Professor Gerald Gall, Faculty of Law, University of Alberta: Madam Chair, it is a pleasure to be here and a particular pleasure to see Senators Beaudoin and Kinsella again. We have been colleagues in various ventures over the past 25 years -- with Senator Beaudoin, it was with the Canadian Association of Law Teachers and the Canadian Bar Association and, with Senator Kinsella, it was with the Canadian Human Rights Foundation and other enterprises.
I should like to highlight some of the issues raised by the legislation and some constitutional concerns that may lead to the Supreme Court of Canada taking a second look at the legislation. As well, I will look at some of the due process issues referred to by Professor Lessard.
At the outset, it is fair to say there is no division of powers concerned with Bill C-71. It is made clear that the predecessor legislation is a valid exercise of Parliament's power over criminal law in section 91(27). Although two judges of the Supreme Court of Canada did justify it under the peace, order and good government clause, as did the Quebec Court of Appeal, all judges found it to be within federal jurisdiction. Therefore, that is a non-issue. However, I might add that the significance of the comments made by the Supreme Court of Canada in RJR on that issue may help to inform the Senate in a future debate about another piece of legislation which is the reproductive technologies legislation, Bill C-47. Obviously, concerns about division of powers in that legislation will be raised. I think the remarks by the justices in RJR will be of some significance. I mention that in passing.
On the issue of freedom of expression generally, the views of the Supreme Court of Canada over the years have taken the form of a spectrum or a continuum. On one end of the spectrum, the court has characterized the issues involved in various cases as competing interests involving harm to vulnerable groups in society. In those cases, involving minorities, women, those in a prostitution milieu, and children, the courts have been highly deferential to Parliament. In so doing, they have employed a relaxed or less stringent application of the section 1 criteria.
On the other end of the spectrum, where the cases have been characterized as not involving competing interests, or where those interests do not involve harm to vulnerable groups in society, they have employed a strict scrutiny approach to section 1. In the latter cases, in particular those involving commercial speech, the primary consideration was consumer choice through expression through advertising. This is particularly exemplified by RJR-Macdonald where the majority decision did not consider the harm of advertising in respect of cigarette consumption and subjected the legislative measures, without deference, to the wisdom of Parliament, per se, to a strict section 1 analysis.
In so doing, the court took this approach primarily on the basis of the failure of the government to provide evidence demonstrating, in a concrete fashion, that less restrictive proposals might achieve the same legislative objective as a total ban on advertising. Thus, the government failed to satisfy the minimal impairment test.
The following issues arise from this analysis. The degree of deference employed by the Supreme Court of Canada appears to be based upon the characterization of the issue. If the issue is characterized as harm to a vulnerable group, the court is apparently willing to be more deferential and to relax the section 1 requirements.
If the issue is characterized other than being one of harm to a vulnerable group in society but, rather, as a denial of consumer choice at the marketplace through advertising, such as occurred in RJR, the deferential attitude on the part of the Supreme Court of Canada is significantly lessened and the strict application of the section 1 test is applied.
Thus, looking at the cases over the years, the court was hardly deferential to Parliament in the Keegstra, Butler and the Prostitution Reference cases, was mildly deferential in Irwin Toy, even less deferential in the Rocket case, and essentially non-deferential in RJR.
The significance of deference is that a highly deferential attitude requires a low section 1 scrutiny. A low section 1 scrutiny requires little by way of hard, concrete evidence. On the other hand, an undeferential attitude on the part of the court requires a great deal of evidence in the section 1 justification process.
The evidence was lacking in RJR and the result was that the majority was not convinced. It had not been demonstrated to them by evidence that the breach of the right was reasonable, in contrast to Butler and Keegstra. In Butler and Keegstra, the test was closer to one of a "reasonable apprehension of harm" without requiring supporting evidence to justify a breach of the right.
On the issue of commercial speech and whether the level of scrutiny by the courts is equivalent to so-called political and other forms of speech, Madam Justice McLachlin gives some recognition to Mr. Justice La Forest's view that commercial speech ought not attract the same level of scrutiny as other kinds of speech. She made the remarks to that effect in the Rocket case as well.
However, it is still regarded as expression and deserving of constitutional protection. The reason most commonly advanced why it should attract less scrutiny is related to the distance of commercial speech to the core values related to the freedom of expression generally.
Former Chief Justice Brian Dickson described those core values as:
...the quest for truth, the promotion of individual self-development...the protection and fostering of vibrant democracy where the participation of all individuals is accepted and encouraged...
and Mr. David Schneiderman of the Centre for Constitutional Studies describes those core values as:
...seeking and attaining truth, participation in social and political processes, and diversity in the forms of individual self-fulfilment and human flourishing.
Mr. Justice La Forest feels, in dissent, that commercial speech is too distant from those core values and, therefore, is not deserving of the same level of protection as other kinds of speech.
In reality, the real issue is not one of commercial versus so-called political speech but, rather, one of characterization and whether the restricted, expressive behaviour relates to the protection of vulnerable groups in society.
In short, the court will respect, deferentially, an abrogation of commercial speech if that abrogation is directed at avoiding harm to vulnerable persons but will not respect an abrogation that is designed to limit the freedom of choice of consumers through advertising information, unless it is supported by justification through strong evidence.
Because of the importance of characterization and the resulting evidentiary burden, it is vital in any court challenge that the Government of Canada frame the object of Bill C-71 in terms of protecting vulnerable groups in society from the evil that befalls those groups through unrestricted advertising.
Clearly, this bill identifies young persons as potential victims. It does so in the purpose section, like the previous act did, but more so this time, and it further does so throughout the legislation.
Thus far, I have discussed the issues which probably will not attract a great deal of attention before the courts, such as the division of powers and the distinction between commercial expression and prohibited speech. What will attract attention in the court, if this matter gets to court again, is the application of the Section 1 Oakes test in determining whether the proposed law is a reasonable limit even though it violates freedom of expression.
Despite the emphasis of a legislative objective which targets or protects young persons, what would happen? I am not putting myself in the role of a judge of the Supreme Court of Canada, but what would likely happen if the Supreme Court of Canada employed a strict scrutiny approach to clause 1 in considering the bill? The key elements of the Oakes test that caused problems in RJR were the rational connection test as it applied to the prohibition of tobacco logos on non-tobacco products and the minimal impairment test as it applied to the mandated unattributed warnings and the ban on advertizing.
First, Madam Justice McLachlin held that tobacco logos on non-tobacco products did not pass the first part of the proportionality test; namely, she could not establish a rational connection between the law's objectives and the means employed to achieve that objective.
In other words, the posting of a brand logo or brand name on a lighter, for example, is not causally related to the taking up or cessation of smoking. I personally think, with respect, that she is wrong. I know persons who have quit smoking and are faced with recurring cravings whenever they see these logos on tobacco products or elsewhere and may, in fact, return to smoking because of the use of the logo. However, my impressionistic thoughts are not relevant. What is relevant is the evidence at trial.
The second part of the Oakes test, for the majority, killed the mandatory warning and advertising ban portions of the legislation.
Will this new legislation satisfy the minimum impairment test? I feel it probably would. In fact, much of the new legislation was tailor-made to satisfy the requirements of the Supreme Court of Canada. There is now only a partial ban on advertising, and warnings will be attributed. In fact, the Supreme Court of Canada specifically referred to partial bans as lesser intrusive measures that will probably be acceptable.
Because the minimum impairment requirement was not met, the court in RJR -- that is, the majority -- did not have to consider the third part of the second branch of the Oakes test, the so-called specific proportionality test. That test was set out in Oakes and strengthened in Dagenais. If the minimum impairment test is satisfied in this legislation, how will the court deal with the third part of Oakes, the now strengthened proportionality test? This is usually not a great hurdle to be satisfied, but it remains an open question.
I will now raise other issues concerning the legislation, aside from the issues raised in RJR. The new law depends largely upon a regulatory regime. Even if the act satisfies the Oakes test, will the regulations also survive scrutiny as so much of the law is under regulatory control? The House of Commons committee review process, as set out in clause 42.1(2), may consider this issue as the regulations are promulgated.
Also, there might be some concern in the proposed legislation about vagueness and over-breadth. More specifically, terms such as "event," "activity," and "entity" in the sponsorship section or terms such as "glamour," "recreation," "excitement," "vitality," "risk" and "daring" in the lifestyle sections might be too vague and/or over-broad to survive a Charter challenge.
Finally, there are some concerns about the search and seizure and procedural aspects of the proposed law.
I, with the assistance of a colleague, looked over these concerns. Notwithstanding that some of the provisions are similar to the 1988 statute, nonetheless, there are still concerns.
The basic concern with the search and seizure provisions of the act is that they are not geared to the investigation of offences or only the investigation of offences. Search and seizure may be justified for the general purpose of the administration and enforcement of the act; that is, innocent persons, those who are not even suspected of any crimes, may be forced to open the doors of their businesses or homes to agents of the state.
In particular, with respect to clause 35 dealing with warrantless search and seizure, the provisions contemplate, obviously enough, warrantless search and seizure, a procedure that should always be viewed with suspicion or at least prima facie an unreasonable interference with persons' privacy interests protected under section 8 of the Charter.
Section 8 interests are engaged. What is contemplated by clause 35 is search and seizure. The search is to be conducted by an agent of the state, and the fruits of the search are to be used in prosecutions under the act. Persons may well have a reasonable expectation of privacy respecting "any place" that inspectors are authorized to enter. It is true that regulated businesses have a reduced expectation of privacy on records collected or things maintained pursuant to regulation, particularly where an aspect of engaging the business is periodic inspection of the record or things. It may be also true that requiring warrants for searches and seizures in aid of the enforcement of regulatory statutes may be impractical and unreasonable. Nonetheless, clause 35 grants inspectors extremely broad powers, so broad that they might be viewed as unreasonable and unduly intrusive powers.
With the assistance of a colleague, I have done a more detailed analysis of clauses 35 and 36, and I am not sure there is time to discuss it here. If the committee agrees, I might simply mail it to you. It is a three-and-a-half page analysis. This analysis did not necessarily raise Charter issues, but it did raise specific concerns relating to and arising out of the broad powers of search and seizure and the choice of the language employed in the statute.
This leads to the final two procedural points, the first being the presumption of innocence in clause 53. The provision in clause 53 is similar to sections 794 and 115 of the Criminal Code. These provisions could be argued to violate the presumption of innocence since they impose a burden of proving innocence on an accused. Nonetheless, these provisions or their predecessors have been held not to violate the Charter, either on the ground that the provisions do not violate the presumption of innocence because the whole of the offence must be established by the Crown beyond a reasonable doubt before an accused may be convicted, or on the ground that reasonable limits on the presumption of innocence are justified under section 1 of the Charter.
There are a number of cases in support of this. As a matter of the jurisprudence to date, the reverse onus provision of clause 53(2) is more objectionable than other similar reverse onuses which appear elsewhere.
Finally, we come to the due diligence and vicarious liability provisions in clause 54. The inclusion of an expressed due diligence defence probably preserves the penalty provisions from being struck down under section 7 of the Charter. In effect, employers are liable only if they were not duly diligent -- that is, they were negligent -- in ensuring that offences were not committed. Their fault lies in their failures to be duly diligent.
The attribution of liability to corporations for strict liability offences on the basis of respondeat superior, subject to a defence of due diligence, was recognized by the Supreme Court of Canada in the City of Sault Ste. Marie case. I have a large quote from that case, but again I will defer reading that quote.
The act could be improved, perhaps, if the reference were made to the acts of an employee or agent in the course of that employee or agent's employment. Other than that, the portion of the act is not particularly objectionable, or no more than vicarious liability is in tort law or other regulatory law contexts.
Senator Beaudoin: Madam Chair, it is always a pleasure to have a panel of constitutional law professors. I have one question for Professor Gall and one for Professor Lessard.
Professor Gall, you referred to one problem which has not been thoroughly considered in this case, and it should be. I refer to the division of powers. I agree with you that, because of the Macdonald case, it is obvious that the Parliament of Canada has the right to propose legislation of this kind.
The jurisprudence is clear cut on the question of the criminal law power, which is broadly interpreted. Since you refer to the production of tobacco, some people have raised the problem of property and civil rights. My inclination is to say that because the criminal law power of Parliament is broadly interpreted, this bill is solid in that area.
There are, of course, some sections of the act dealing with the production, with what may be involved and with what products or elements. It may be that some lawyers will come to the conclusion that it is an invasion of property and civil rights. However, having regard to the jurisprudence, this is accessory to the main legislation.
I raise the problem because, in some provinces where the provincial autonomy is perhaps more important than others, the argument may be raised. I should like to know a little more from you on this.
Mr. Gall: I certainly agree with your remarks. Some provinces would take the view that any production of a commodity is a matter within provincial jurisdiction. I think the issue can be framed in a slightly different way.
If one characterized the legislation as health legislation, even though the Supreme Court of Canada says health is a matter under section 91(27), one should bear three things in mind. First, there is provincial jurisdiction over health as well. The Supreme Court of Canada once described jurisdiction over health as an amorphous type of area.
As an example, I mentioned Bill C-47, and people have raised concerns about jurisdiction over reproductive technology legislation. Certainly the Krever Commission is struggling with the question of jurisdiction over Canada's blood supply, among other things.
All of these health concerns raise issues because clearly the province's jurisdiction over health under 92(13), 92(16) and 92(7), where jurisdiction is given over hospitals, is not clear cut. It is only since the pronouncement that health has a public purpose in the margarine case in 1949 has it become more clear cut that health is a federal matter. There is certainly a provincial health aspect to the production of tobacco.
Second, many judges refer to peace, order and good government jurisdiction. If it is justified under that, as a national concern, in a sense it can override any provincial concerns over properties and civil rights. The majority say it is the 91(27), the criminal law power.
Third, advertising is a matter generally within provincial jurisdiction.
We are talking about health, which is an amorphous matter, and advertising which is largely a provincial matter. However, some matters are ancillary to other matters. As a general conclusion, we are fortunate that the Supreme Court of Canada has said that, where advertising is directed at the protection of health, it is a federal matter.
I do not know if this has been too helpful. Certainly anything to do with health is an amorphous matter. It is not clear cut in every case. As I said, the jury is out on the question of which level of government has jurisdiction over Canada's blood supply or which level of government has jurisdiction over reproductive technologies. These are not easy questions. However, at least for the purpose of this statute, we have a pronouncement by the Supreme Court of Canada that it is likely to be constitutional in terms of division of powers.
If the underlying thrust of your question is that it is not clear-cut, I would agree with you because it is not clear-cut.
Senator Beaudoin: The only reason I raise that point is that I have never been in love with the doctrine of peace, order and good government. I accept an emergency power which is transitory, of course, but this act is permanent. It cannot operate on that theory. It is criminal law and it is on sound ground with criminal law because it has been interpreted broadly.
The theory of peace, order and good government is debatable. It is valid under the criminal law power. The provinces keep, of course, their big power in the field of health and civil rights. For the purpose of the record, I know exactly what you mean.
My second question is to Professor Lessard. I am sure my colleagues will ask you about the regulatory regime, vagueness, search and seizure, and presumption of innocence. However, to come back to the Charter, I agree with your statement that we have to follow the Oakes case. The main problem is reasonable limits. The whole debate is there, in my opinion. There is no total ban; it is a partial restriction. Therefore the test is whether it is reasonable in a free and democratic society. The whole thing is there.
You said the onus of evidence is on the shoulders of the government, which is true. However, you did not say one word about whether it is the preponderance of evidence or the absolute. It is not without any doubt, we agree on that. I do not want to debate that because it is so obvious.
I should like to know more about the onus of evidence, because we live in a very civilized society, in spite of what people say. In a statute like this one, we have to clear the debate. Is it reasonable in a free and democratic society to do what is done by statute? Do you think that the onus of evidence is complied with in this case?
Ms Lessard: That question was an issue of dispute among the judges in RJR-Macdonald: What is the standard? Given the context of commercial expression and the importance of health concerns, is there a qualifying of that standard? You had a sharp division in the court with Justice La Forest in dissent saying that the standard is low. Government simply had to show that it had a rational basis for choosing this alternative over that one, choosing total bans over partial bans.
Senator Beaudoin: He was in the minority.
Ms Lessard: Justice La Forest was overruled on that by the majority. The majority reconfirmed what Oakes said, which is the standard is the balance of probabilities. The least that can mean is that government must prove not simply that its claim is equal, but, in a sense, it has evidence that this is the best way to go. Oakes has set a high degree of probability. As Justice McLachlin said, there must be more than bland assertions that we need to use these devices.
The exact meaning of "a high degree of probability" cannot be rendered precisely. It is clear that it will be applied in its most vigorous form at the point of minimal impairment.
Senator Beaudoin: The term used in English is "preponderance".
Ms Lessard: Yes, a preponderance of the evidence.
Senator Beaudoin: That is good enough for me.
Senator Lynch-Staunton: I was interested to hear Professor Gall's comments on the search and seizure part of this bill because, from what I have heard and been able to understand, I think that if there is a Charter challenge to this bill, this is one part that I would certainly address.
In particular, not only can the inspector go in and seize, as the bill says, if he believes on reasonable grounds a seizure is justified -- and "reasonable grounds" can be given any definition one wants -- but it is up to the person whose goods have been seized to take the initiative to get the goods back. There is no provision, as far as I have seen, for the Crown to lay a charge following the seizure. That is optional for the Crown. It gives a latitude of enforcement which I think is excessive. I look forward to your paper on that.
I also want to comment on whether this bill really follows the Supreme Court's guideline regarding partial ban as opposed to total ban, which it struck down. I am not so sure that a partial ban will be achieved by this bill. I sense that, because some of these clauses are so vague and lend themselves to so many interpretations, a total ban could take place. I refer to the definition of lifestyle.
Both Professor Lessard and Professor Gall touched on that. Lifestyle advertising means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring. I do not know of anything which is excluded from that.
I would like to have your interpretation of this clause. What is excluded from the definition of "lifestyle advertising" which would allow the other sections, clause 22 in particular, to be applied?
Ms Lessard: I think you are right. When thinking about vagueness, it is this kind of provision and the description of events that are associated with youth, risk, wealth, et cetera, that become problematic. When I looked at that, I wondered about intelligence and sober second thought. That is not here. However, when looking at this, you must also realize that the court is asking whether government could have come up with a more precise and workable definition. The usefulness of the Irwin Toy example is that the courts will recognize that it can be very difficult to descriptively classify different types of behaviour. So the question in terms of intelligibility and clarity is what is reasonable to expect in terms of clarity here.
I agree that there is a lot of blurriness and it does raise questions, but you must understand that absolute clarity, hard, bright-line distinctions, will not be required where that would be impossible to achieve. The court does try to be realistic and not make it absolutely impossible for law-makers.
Senator Lynch-Staunton: Is this definition a direct response to the court's understanding of lifestyle?
Ms Lessard: The court had, of course, the benefit of not having to elaborate. The court used the phrase "lifestyle advertising" but did not give a carefully articulated account of what the components of that might be. The other thing to ask here is whether there will be clarification in the regulations, whether there will be administrative guidance in terms of what activities are contemplated here, because certainly the court will take that whole regime into account in interpreting something like that.
Senator Lynch-Staunton: Would you agree that, as defined, lifestyle advertising can be applied to any kind of tobacco advertising; that all tobacco advertising could be described as lifestyle advertising because it suggests a form of lifestyle just by using the product itself?
Ms Lessard: I have difficulty with looking at something that we might agree is a lifestyle ad and determining which components are brand preference and which are informational. I have no difficulty imagining what informational advertising looks like and what brand preference looks like, although that can begin to slide over into the lifestyle category. If you look at it the other way, in terms of what is permitted rather than what is prohibited, it is a bit easier. It does raise questions, but I think it is workable given the difficulty of definition here.
Senator Nolin: Do I understand you to be saying, Professor Lessard, that because it is impossible to properly draft a law that is reasonably specific, it is an excuse because it is a very important principle?
Ms Lessard: Yes. It is important to realize that the consideration is in the context of the minimum impairment question. The court is asking itself whether one could do this a bit better, whether one could think of a better way to describe what we mean by "lifestyle advertising."
Senator Nolin: More than that; because of the minimum impairment it means that that is the last resort, the last option, and it is impossible to be precise.
Ms Lessard: Yes.
Senator Nolin: Because of all those exceptions, we will breach two fundamental rights. A vague law offends two values that are fundamental to the legal system. I think you are referring only to the first one. I will get into the second one. First, the law does not provide a reasonable opportunity for a person to know what is prohibited and to act accordingly.
Ms Lessard: Yes.
Senator Nolin: However, there was an excuse; it was impossible to describe it more precisely.
The second problem is that the law does not provide clear standards for those entrusted with enforcement which may lead to arbitrary enforcement. That is a concern.
Ms Lessard: Yes.
Senator Nolin: Who will decide that it is not precise but cannot be precise? It is not the minister or the officials at Health Canada who will decide that. The police will decide that. We are talking about criminal powers.
Ms Lessard: Yes. This very same problem has come up, and I agree that it is a problem. However, the other useful example here is obscenity regulation which raises the same kinds of issues. It is important here again in terms of what the court will take into account in determining precision. Basically the court has said, in the big obscenity cases, that it will take account not only of the attempts made by government to articulate in the text of the statutes and the regulations, but also the judicial interpretations, et cetera. So it will take a rather large body of interpretations of the provision into account in determining whether it has that clarity.
You are quite right. This is a difficult issue in the expression cases in terms of commercial expression for obscenity and for hate-speech provisions. It is very difficult to precisely articulate the kind of expression that you want.
It is important that you ultimately have that final question which the court asks, which is as follows: The government has been careful; it has drafted these provisions with the utmost care possible, but does it still outweigh the injuries to the rights?
Senator Nolin: That is difficult. However, government has decided that clause 22 is the last option, the only option, minimal impairment. I raised the issue of taxes yesterday. We will hear from the department in that regard. It was a big debate in the RJR-Macdonald case.
When you read clause 22, you are looking at a total ban. However, when you look at the "but", there is another ban at the end of the section. It looks like a total ban. I understand your comment, though.
Ms Lessard: In a sense, it would be ironic for the court to say, "No, you cannot do the total ban; you can do the partial ban." However, when you do the partial ban, that is impossible because it is so difficult to describe the category. I think the court has been conscious of the fact that it must not render it utterly impossible to regulate by coming out with those sorts of decisions.
Senator Nolin: It reminds me of the ban on advertising for lawyers. The only thing we are allowed to advertise is our business card.
Senator Lynch-Staunton: Whether we agree with the interpretations, I think this discussion shows that we have a lot of vague wording before us.
Ms Lessard: Yes.
Senator Lynch-Staunton: We are trying to avoid, by pointing that out along with other imprecisions in the bill, that these arguments will be taken to the court and we want to avoid another successful court challenge. I agree with Senator Nolin that the way we are interpreting "lifestyle advertising" as defined here is that it could be invoked to allow a total ban, either directly or indirectly.
Ms Lessard: I do not have a problem imagining what purely informational advertizing is.
Senator Gigantès: That would be death-style advertising.
Ms Lessard: I do not see it as a total ban. In fact, in positive terms, it is a much easier thing to do.
Senator Nolin: It is funny that Senator Gigantès refers to death-style advertising. When you look at lifestyle, risk is part of lifestyle. Risk-taking is lifestyle.
Senator Lynch-Staunton: My final point deals with clause 18 which defines promotion, which means a representation which is likely to influence and shape attitudes, beliefs and behaviours about the product or service. There are then three exceptions which are quite clear. However, is it exaggerated to say that to influence and shape attitudes, beliefs and behaviours about a product or service includes negative attitudes, beliefs and behaviours about the product. Surely, the intention is positive, but someone can interpret that to mean all attitudes, beliefs and behaviours, both positive and negative.
Ms Lessard: Yes, I think that is true. However, that provision does not state what is prohibited or not prohibited. In a sense, the open-endedness of it is acceptable because subsequent provisions identify the kinds of promotions that are prohibited. That is where you actually get into the negative aspects of promotion.
If you look further into that part of the bill, it is simply introducing the part by saying, "Let us agree that promotion covers this very broad category of activities, without saying anything negative or positive about those activities." Subsequently, the provisions fine-tune that and identify that this sort of promotion is prohibited. Then you have the introduction of the negative.
Senator Lynch-Staunton: I am a bit lost here. Clause 18 says you cannot do anything in terms of communication, representation, et cetera, which is likely to influence and shape attitudes, beliefs, et cetera, about the product.
Ms Lessard: It does not say you cannot do it. It just defines promotion. Clause 19 actually sets it up.
Senator Lynch-Staunton: That is what it means.
In this Part, "promotion" means a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.
Ms Lessard: In one sense, that belongs in the definition section at the beginning.
Senator Lynch-Staunton: It should be read in conjunction with a lot of other things in this bill. That is what I am missing.
Ms Lessard: It is like the definitions at the beginning of the bill where they are simply saying, "Here is how we use this term."
Senator Lynch-Staunton: Perhaps it should have been put in, in the other place. I would have not wasted so much time on it.
Ms Lessard: You are quite right. I have often wondered why drafters of laws do this, but they scatter definitions throughout.
Mr. Gall: I certainly agree, senator, that there are problems in distinguishing a total ban and a ban which is a lifestyle ban which includes a depiction of almost every kind of lifestyle. However, I think you have to look at the definition of lifestyle in terms of what kinds of lifestyle would appeal to young persons, to teenagers.
The fact of the matter is I am not an expert in tobacco or advertising. However, sometimes we acquire expertise through life. I feel that most people start smoking not because of advertising but because of peer pressure at the high school level. That is my impressionistic view of it.
That could be buttressed or underscored by lifestyle ads. I am not trying to get into the policy side of things. I am saying that lifestyle ads, in addition to peer pressure, could trigger peer pressure being actualized in terms of people beginning to smoke. Because that is the case and because that is a contributing factor, although I think peer pressure is the main factor, you must look at the definition of lifestyle in terms of what is appealing, frankly, to a teenager.
I do not know that an ad will appeal to me if it shows someone bungee-jumping. It would not. He could be bungee jumping with a cigarette in his hand, I would not care; that kind of ad does not appeal to me. When you refer to young persons, I think you are referring to teenagers, maybe even pre-teens, I am not sure.
With respect to the issue of promotion, I think Professor Lessard made a small point at the end but it is a good point. That is to say, when drafting laws, you have to wonder why the drafters do things in one bill in one way and in another bill in another way. Perhaps there should have been a definition of promotion at the beginning of the bill where all the other definitions appear.
There are patterns of drafting which have changed over the years, such as the incorporation of a purpose section, for example, and the lessening of a preamble. Provincially, some statutes have their definitions at the end of the statute. In the Criminal Code, they are all over the place within parts and sections.
I will submit my paper to the clerk for distribution.
Senator Lynch-Staunton, you mentioned the "reasonable ground" clause of the bill. Just to give you an example of a concern you may have, an inspector need only have reasonable grounds for believing that there is in the place anything used in the manufacturing, testing, packaging, labelling, promotion and sale of tobacco products. This could include cardboard, paste or paper.
The paragraph does not specify that things that could be used for tobacco purposes must have in fact been used for tobacco purposes. I agree it raises some drafting concerns.
I did not really concentrate on Charter issues, other than some general remarks about section 8 of the Charter, but rather on the whole question of broad powers and search and seizure.
Senator Gigantès: I did not understand your point about things used for the manufacture of tobacco.
Mr. Gall: They can seize anything used in the manufacture and testing of tobacco. The paragraph does not specify that things that could be used for tobacco purposes must in fact have been used for tobacco purposes. They can seize things which were not in fact used for tobacco purposes but are of the same nature of things that would be normally used for tobacco purposes.
Senator Gigantès: Are you suggesting, though, that a piece of cardboard with nothing on it is subject to search and seizure under this bill? Is that what you are suggesting, or am I not following you?
Mr. Gall: You are following me and, yes, I am suggesting that. However, I am not suggesting that it is a major concern. I merely wanted to bring it to your attention.
Senator Gigantès: I am not a great admirer of the intellect of the police, but I think this is even below my opinion. I doubt it.
Mr. Gall: I am just raising red flags.
Senator Lynch-Staunton: I have a final comment on lifestyle advertising. The law is quite specific. It refers to what could be appealing to young persons, which means persons 18 and under. It seems rather strange that they would make a distinction between banned lifestyle advertizing for someone who is 18 but it is all right for someone who is 19. If you are to ban it, why not ban it completely or at least broaden it out.
It is absolutely impossible to think that a teenager will only focus on his immediate age group and narrow interests and not look ahead to see what the adults are doing and not be influenced by that lifestyle advertizing. Those are some of the things we will address.
Madam Chair, our two witnesses have been helpful in guiding us through this important legislation.
Senator Lewis: The discussion this morning illustrates a problem we all have as far as drafting is concerned. When you get a group of people and you each come up with wording, eventually you have to agree on certain wording. Then when one looks at the RJR decision, you see the differences between the rationalization of the decisions. At the bottom line, of course, the court made a clear decision. It came down and said "no total ban." Everyone understands that.
Professor Lessard said that a total ban was not justified on the evidence and the bill was drafted in view of the things that the court had said. The professor mentioned one of their criteria would be vagueness. She said, of course, that a total ban was quite clear and that there was no vagueness there.
Professor, what is your view of the bill itself? What is the bottom line?
Ms Lessard: In terms of the vagueness considerations?
Senator Lewis: Yes.
Ms Lessard: I would place preliminary question marks next to the provisions that have been identified, such as the lifestyle advertising, the sponsorship provision and the reference to events associated with risk and daring. They are very much the same kinds of concerns. However, I would want to first get my hands on regulations which might clarify those terms and actually provide much firmer guidance about what is contemplated here before drawing any conclusions. Then, in troubleshooting the act, I would think about the difficulty of coming up with alternative formulations and whether there are ways to make the distinctions clearer.
There is a clear demonstration here of a very conscientious effort to be careful. Every single prohibition in this bill has restrictions and qualifications built into its scope. Clearly there has been this demonstration of tremendous caution on the part of government, which I think counts for a tremendous amount. This goes back to the fact that the government lost the case not so much because of the total ban, but because they failed to demonstrate that they had actually proceeded in a way that was cautious and conscientious about the need to tailor the legislation.
On the face of it, the fact that that has been done every step of the way counts very heavily in favour of this statute. As well, there is that important margin of appreciation.
Senator Lewis: What about taking the whole bill and its objective in total rather than taking one clause and trying to rationalize from there?
Ms Lessard: When you look at things such as vagueness, you must proceed prohibition by prohibition and pull in all the various aspects in the regulation and in the text itself which might help in providing an intelligible legal standard. I do not think when you are dealing with something like unconstitutional vagueness, it is sufficient to simply say, "Well, over all, we know it when we see it or we think it is adequate." You do have to be fairly painstaking in this process.
Senator Lewis: I appreciate that but I am thinking of the interpretation. You must look at the whole object of the bill and its scope.
Ms Lessard: Yes. In that sense, as Professor Gall said, a very visible effort that has been made here to tie the restrictions to advertisements directed at youth, in general, and those things count very favourably.
Mr. Gall: I would like to comment on that as well. You can look at the bill over all in determining an objective for the purpose of the first part of the Oakes test, whether there is a pressing and stated objective. I think it is fair to look at the objective of the bill as a whole. However, when applying the proportionality test, clearly the courts have said that that is a section-by-section analysis. In fact in RJR, we know that the use of tobacco logos on non-tobacco products did not pass the first part of the Oakes test, the rational connection test. The publication ban and the unattributed warnings did not pass the second part of the proportionality test, so they must be considered separately.
The amount of evidence that may apply to satisfying the Oakes test for one clause may not be there to satisfy the Oakes test for another clause. Fortunately, you can say that the object of the bill is X and that X applies to the whole act; that is not a problem.
It is the second part of the Oakes test, the proportionality test, which is a very individual process, section by section or prohibition by prohibition.
Senator Lewis: Yes, and I presume that a court challenge will depend on the particular issue that is before the court and on the evidence that is brought forth.
Mr. Gall: That is absolutely correct.
You must remember that, in the 1988 tobacco control statute, some sections were left intact. Some sections were not challenged. Just because a total ban was not allowed, there were sections left intact. It is a prohibition-by-prohibition analysis.
As I reiterated, your remarks are legitimate insofar as identifying an overall objective for the statute. I think the court would accept a single, overall objective, if there is one.
Senator Kinsella: In reflecting on derogation generally, on derogating from a right, prior to 1982 our reflection would be quite different. Maybe you would focus more on whether it is good policy or a good political decision. It seems to me that that test must remain even in our Charter era. Your analysis of the Charter test has been very helpful.
There are other human rights tests. I happen to have with me the International Covenant on Civil and Political Rights. When I looked at the derogation clause there, the test is very specific and very strict. It says:
...to the extent strictly required by the exigencies of the situation....
Not to be specific because you are here testifying on Charter questions, but you did raise the problem of the old post hoc ergo propter hoc fallacy of false cause. How would you measure this bill in terms of the derogation of rights that are clearly flowing from it? If you were measuring it against the standard of the situation and the exigencies of the situation, the social objective that is being sought must be strictly required.
Ms Lessard: I think that the "demonstrably justified" language is very close to the strict language in the international covenant. In the drafting of the Charter, there was a lot of debate around that. It was a first try where a more La Forest type of rational standard was put in. Then it was tightened up considerably, so I think they are actually quite close.
To the extent that the Charter's actual section 1 phrase perhaps allows a bit more flexibility, that notion of what is strictly required by the exigencies of the situation is very much what the minimum impairment inquiry is about. That is where you see that notion coming out of a matching between the objectives and the means chosen and a real sensitivity to the impairment of rights.
Senator Kinsella: The second specific area I would address is on clause 53 and the whole issue of reverse onus. The question in my mind is this: Although I understand there are many statutes where a principle of reverse onus is applied from a public policy standpoint, where my objective in public policy is to ensure the minimum impairment of human rights, has there been a growth of application of this reverse onus principle in all kinds of statutes that are arriving before legislators, whether at the provincial or the federal level in our country, so much so that it almost goes unchallenged?
One of the arguments to sustain clause 53 is that we do this in other statutes. There is a growth of this and it is almost accepted. What is your reaction to that?
Mr. Gall: My reaction is that, yes, there is an increase in the number of reverse onus provisions. I gave the example of sections 794 and 115 of the Criminal Code. I think section 794 is the gun control legislation and there is a reverse onus in that provision.
That is a fairly new act. This is a new bill. So obviously the drafters and those responsible for policy are willing to do this more often. At least we have these two examples in the past year. Equally, the courts are willing to accept them, but that is a legal conclusion rather than a policy consideration.
As a matter of policy, I certainly feel, like yourself -- and we are talking again personal feelings, I suppose -- that it is happening too often. I do not want to engage in a political debate, but it is a matter of policy. The issue ought to be raised. We ought to think about it and ask what you are asking. Are we doing this too frequently? Is it becoming too easily done?
Once you have done something once, it becomes much easier to do it a second and a third time. That is a legislative fact of life.
With respect to your first question taken from the covenant, that has been amply answered and correctly so by Professor Lessard. I am not surprised that you just happen to have the international covenant with you.
As your colleagues must know, Senator Kinsella is one of Canada's great experts on the covenants. The rest of us do not have it with us, but I should have known that before coming.
Senator Kinsella: I want to refer to another area, and that is regulation. I am concerned about the regulatory power not only that is proposed in this statute but in other statutes that we have been looking at because of the oversight of the regulation and the regulatory power in Parliament that is somewhat under assault.
We have a bill in the other place which is called Bill C-25. I have not studied that bill in detail, but it seems to be modifying the oversight authority of the Joint Committee of the House of Commons and the Senate on the Scrutiny of Regulations. If the state is to be taking more power through the regulatory process, it seems to me it is important for us too have that part of our system -- the process of scrutiny of regulation in Parliament -- beefed up and not lessened.
I would be interested in your reflection on that general issue, as well as the regulations in this particular bill.
Mr. Gall: I certainly do have comments to make. Do I recall correctly reading in the newspaper that that bill was withdrawn?
The Chair: No, it has not been withdrawn. In the minds of some of us, that is devoutly to be wished.
Mr. Gall: I recall something about it.
Senator Beaudoin: Where is it?
The Chair: It is still in the other place.
Mr. Gall: This bill is subject to a great deal of regulatory control. In fact, clauses 22 and 24 say subject to the regulations and subject to subsections 1 and 2. The first wording in the clause is "subject to the regulations."
We have been inferentially skirting around that issue. Even in the question of vagueness, we must wait to see what the regulations say before we can be more precise. It could be that the regulations will be even more vague than the act. That is difficult to imagine, but they must be scrutinized not only for vagueness but for possible Charter review as well.
Another witness will testify as to the mechanism that will be used to send the regulations to a committee of the House of Commons under clause 42.1. That is a mechanism which gives some protection; however, I am talking again about the whole question of legislative drafting. Legislation is more frequently taking on a bare-bones type of appearance and depending upon regulations to flesh it out.
I do not know whether that is good or bad. I personally like to see statutes have as much of the law that pertains to that issue right in the statute because regulations can be changed too easily. They do not undergo the same debate process as a statute. The regulations will not come to the Senate, for example. As I understand the review, the regulations just go through a committee of the House of Commons.
There are many reasons why a full review of a proposed law should take place in the normal fashion and not leave so much for regulatory control. That is a general comment on law-making.
Having made that general comment, I concur that Bill C-71 is a good example of where the drafters have chosen to leave much to regulation. It is probably a legislative tendency, but it has come up again in this context.
Senator Kinsella: Where a bill like this one is dealing so directly with derogation of rights, is that not all the more reason to have the minimal amount of regulation? In other pieces of legislation which do not test Canadians' freedoms, the vagueness and the regulations would be less threatening to our freedom.
Mr. Gall: Absolutely. If you have regulations dealing with aeronautics or trucking or some technical regulations, greater regulatory control would be more acceptable.
When we talk about the derogation of rights contained in the Charter and in the Constitution, it is important to have as much in the legislation as possible. I could not agree with you more. However, it is a legislative tendency which has occurred in recent years.
Senator Beaudoin: "Subject to the regulations" in clause 22.(2), what does it really mean in practice? Does it mean that we need regulations or is it possible that it means that the regulations are paramount? I do not see that very often, "subject to regulations." I want to know exactly whether it means that we need regulations in that case, or whether it means that the regulations are paramount. How can the regulations be paramount? The act is paramount. It is an innovation.
Mr. Gall: In that particular section, it certainly struck me to see the beginning words of the section say "subject to the regulations" as if the regulations were paramount or as if the regulations are about to say a lot. There is not much you can say, for example, about a publication that has an adult readership of not less than 85 per cent. How more precise can you get in the original legislation? Mind you, if it did not say that, the term "adult readership" would be probably the most vague term in the entire statute.
Take, for example, clause 22(2)(c), the posting of signs in a place where young persons are not permitted to be by law. Certainly that must refer to a bar or tavern or lounge because that is about the only place where young persons are not permitted by law. Even in Alberta, for example, young persons over the age of 14 are allowed in bingo halls. That would probably not apply to them because "young person" is defined as a person under the age of 18.
I do not know what kind of regulation would be added there. I agree with your remark. It is strange to begin the sentence with the term "subject to regulation" as if we will have, in this section, a great deal of regulatory control.
Senator Beaudoin: I hope to ask the officials about this.
The Chair: They are monitoring this meeting and will hopefully take note of your question.
Senator Gigantès: I am very worried about the regulations because they are often a sort of OO7 "licence to kill" for public servants. They write the regulations to make their lives easier and not to make the lives of citizens easier. We have seen numerous examples of that.
The worst example is the tax system where they not only have regulations but they also have interpretations. For years they refused to publish their interpretations. There is an Ottawa lawyer who fought for ten years to get them to reveal their interpretations of the rules.
The Chair: I assume that is a comment, rather than a question.
Senator Gigantès: It is a comment, unless they want to comment on my comment, in which case my comment becomes a question.
Senator Doyle: It is almost essential at this point to make my comment on the whole question of regulations. I was coming to the point that really it seems that is all we have -- the regulations. We have no definition of their purpose, as I said yesterday while the minister was here, and we have no definition of the goals.
Professor Lessard made a point of the fact that they arrived at the subject and said, "We cannot manage." Where they did they go from there? Is it their purpose now to cut the use of tobacco in half? Is it to take 10 million per year off the death toll? Is it to only stop children from starting to smoke, because maybe then they will start if they get to be 30 years old first.
I find that the most effective word you have used is a fairly unfamiliar word and that is "blurriness." I know exactly what you mean and it is the best definition I have heard of the law that is now before us.
I desperately want a law that will stop people from smoking. I do not think we will accomplish it by edict or by use of the sword. So what are we trying to do? Will you please tell me what you think we are trying to do?
Ms Lessard: This again goes to the vagueness of the categories here and the connection between choosing this approach over others in order to accomplish the very important purpose of reducing tobacco usage.
To borrow from the language of the international covenant, I think what is going on here is a consciousness of the exigencies of the situation, that a direct prohibition of smoking, which would be very satisfying and clear-cut, simply is not feasible when dealing with an addictive substance that is so widely used. Therefore, we turn to these very clearly less satisfying approaches and we face the questions in light of that.
The Supreme Court agreed that, given the exigencies of the situation of an addictive substance that is widely used, one cannot take what would be the more satisfying approaches.
The questions then become whether we could do better in terms of articulating the prohibitions here. You are quite right to raise the fact that there are some fuzzy and blurry concepts here.
Senator Doyle: Fuzziness is something we hold dear here in Ottawa. Yet we know, for instance, that we want to be rid of the deficit and the debt. We do not know when it will happen -- everyone has a different version -- but it is a worthy road to travel. We do not even say that we want to some day abolish the use of tobacco. We are afraid to say that. It is as if we are saying that a certain number of deaths would be all right. Is that what the law says?
Ms Lessard: To answer that, you would have to look at the background documentation.
Senator Doyle: Laws are for people; they are not for tables of interested parties such as ourselves.
I have a copy of the bill here and it took some time to go through it all. If I started to read it now aloud, with my impairment it would take until supper-time and past, and we will get not the citizens to read it that way. We have no hope that they would understand it when they had finished it.
Here I am thinking that it is marvellous that we will have a bill which will get around that wicked old Supreme Court and do something, like Jake Epp tried to do a few years ago. The leader of my party says that is why we are here. However, I do not know how to get a hold of it. We will not do it just by arguing about what constitutes "lifestyle."
When I was a youngster looking toward a career, I knew that if you smoked cigarettes and owned a fedora, your chances of being a newspaperman were pretty good. If you were a female of the species and you used cigarettes publicly, that indicated you were pretty fast. Now it is the other way around. Cigarettes are trying to get an image of whether or not you ski. I am confused and I am grateful for your help.
What if the government had taken the step of having tobacco declared a narcotic or a noxious substance? Would we then not need to worry about derogation of rights and all the rest because we would be admitting that tobacco is what it is -- the most damaging drug that we deal with in this country. Would it be better to go straight to a definition of tobacco as a narcotic; therefore we can do thus and thus? Unless we reduce the use, that is what we will have.
Ms Lessard: That is certainly something to contemplate for the future, but I can only guess that, again, given the exigencies of the situation, the decision was that it simply was not feasible to cast a regulatory scheme in that mode. It certainly would be much more satisfying in the ways you have indicated, to a certain extent.
The Chair: Thank you very much, Professor Gall and Professor Lessard, for your excellent presentation this morning.
Senators, the steering committee has agree that we will meet in the afternoon of April 1 and all day on April 2 and 3.
We have also agreed that if additional witnesses come forward who should, in the view of the steering committee should be heard, they will be invited. We will send letters to all premiers today in case their ministers of health or other responsible ministers would wish to appear. As yet no witnesses are set for April 7, but please keep your calendar open for that date in case there are areas which we feel are not adequately canvassed. The department officials and the Minister of Health will invited to return on April 9. If we are ready, clause-by-clause consideration will take place on April 10. Those plans are subject to change.
Senator Haidasz: I am not a regular member of this committee, but I should like to have the opportunity to table in English three amendments which I propose to clauses 2, 5 and 21 of this bill, hoping that by the time we meet next they will have been translated also into French.
May I deposit these with the committee?
The Chair: Senator Haidasz, with the greatest respect, I am very reluctant to have you table anything that is not in both official languages. We do not make that a custom of this committee. I suggest that we have them translated and, when we come back on April 1, even if you are not here, we will accept them then as having been tabled, if that is agreeable with you?
Senator Haidasz: Yes. Thank you, Madam Chair.
The Chair I will need a motion to table Senator Haidasz's proposed amendments once they have been translated.
Senator Beaudoin: I so move.
The committee adjourned.