Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 49 - Evidence for the evening session
OTTAWA, Wednesday, December 9, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-42, to amend the Tobacco Act, met this day at 7:34 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I see a quorum. Honourable senators, we have before us now Mr. Allan Rock, Minister of Health. Welcome, Mr. Minister. Please proceed.
The Honourable Allan Rock, Minister of Health: Madam Chair, it is nice to be back before this committee. It is not like the old days in Justice when we had frequent occasions to see one another.
I am here, of course, because of my respect for your process and because of the significance of the proposed legislation, Bill C-42, which I believe will strengthen the Tobacco Act. That act is already one of the most significant pieces of legislation in the world because of its scope and its effectiveness for tackling the societal problem of tobacco use.
[Translation]
I would like to stress that this bill was drafted after we held exhaustive discussions with all the stakeholders. We consulted with people from the world of arts and with the sports community as well as with other groups that would be affected by the changes being considered. They told us that they needed a suitable deadline to find new sponsors and the bill recognizes this request.
We also consulted with people working in health care.
[English]
We have heard a variety of views from health groups, the organizations that have been front and centre in the work to make Canada tobacco-free. I should like to thank them all for their contribution to this process. In particular, I should like to thank the Canadian Cancer Society, Physicians for a Smoke-Free Canada, and the Non-Smokers' Rights Association for their very significant contributions to the broader effort. They have been leaders over the years in the efforts to get the anti-smoking message out to Canadians. They have been powerful forces in encouraging Canadians to keep moving ahead on the tobacco issue.
Health organizations looked at what we were doing with this bill. They understood where we wanted to go and how we wanted to get there. I believe that in general -- and you will have heard them for yourselves -- they support the direction that we are taking toward a complete prohibition of tobacco sponsorship promotions.
In that vein, the health community proposed a number of amendments to the bill, three of which were adopted by the House of Commons. The Canadian Cancer Society and other national health groups have proposed further amendments to the bill, and we look to your committee for serious consideration of the implications of those proposals.
The ultimate goal, of course, is the protection of the health of Canadians, particularly the young people. By strengthening the existing Tobacco Act provisions on sponsorship promotions, we hope to limit yet another of the subtle signals in our society that make smoking seem more normal and more acceptable than it really ought to be.
Given the toll that it takes, tobacco does not deserve to be associated with sports or culture or entertainment. Tobacco deserves to be associated in the public mind with the deadly substances it contains, such as carbon monoxide, hydrogen cyanide, benzene, nitrosamines, and lead. I mention those five substances but I could have mentioned any one of more than 4,000 different chemical compounds in tobacco smoke. I could have mentioned the more than 50 known cancer-causing agents in tobacco smoke.
Yet, for years, tobacco companies have capitalized on their promotion of sponsored events of all kinds to enhance the image of their products. As their ability to advertise in other ways diminished, they set out to find and exploit new marketing tools. Sponsorship promotions proved to be among the most important of those tools.
[Translation]
In 1987, tobacco manufacturers spent nearly $28 million on brand advertising in the media. Also in 1987, they allocated less than $2 million to sponsorships. In 1994, because of the new limits, hardly any money was spent on brand advertising. But media expenditures related to sponsorship activities totalled $10.5 million.
[English]
Those are none-too-subtle sponsorships. Tobacco companies do not just sponsor major events. They gain top billing in the names of the events and even the locations where the events take place. Brand colours and logos appear as an integral part of event advertising.
Tobacco companies do not choose randomly which events they sponsor. Those are marketing decisions. Events are chosen and tailored to reflect target audiences as part of larger tobacco sponsoring or promotion activities. It is no accident that tobacco brands aimed at women sponsor fashion events, for example, while those aimed at men sponsor events like auto racing.
At the same time, this bill recognizes the impact that tobacco sponsorships have had across Canada. It fulfils the commitment that the government made last year to review the sponsorship aspects of the Tobacco Act. The result of that review is an approach that treats all currently sponsored events equally. Thus, while the law passed by the last Parliament allows the indefinite continuation of tobacco sponsorship marketing, that will change under this bill.
Let me remind you about the transition arrangements that will come into place should this bill become law. In the first two years of the transition, up to October 1, 2000, events that tobacco companies already sponsor and that were held in Canada during the 15 months prior to June 1998 will face no new restrictions. The next three years will bring in a much tighter set of restrictions on the tobacco sponsorship marketing associated with those events.
On the sites of those events, it will be possible still for tobacco sponsorships to be promoted freely. However, it will be much different off-site where promotions will be governed by the 90-10 rules of the Tobacco Act. As with other promotions, only the lowest 10 per cent of any promotional material will be permitted to display tobacco brand elements. Beyond that, there will be strict limits on where and how off-site promotions can take place. Essentially, the impact of the new rules will be to ensure that young people are far less likely to come in contact with sponsorship promotions by tobacco companies.
The transition process will come to an end on October 1, 2003. On that date, we will see the end of tobacco sponsorship promotions in Canada. We will see an end to tobacco-inspired event names. We will see an end to tobacco-linked names of facilities. We will see Canada continue to maintain its place among international leaders in the fight against tobacco.
The approach inherent in Bill C-42 fits closely with the standards that are evolving on the international scene, for example, in the European Union, in Australia and in New Zealand. It also reflects the deepening provincial interest in addressing one of the biggest drains on health care budgets. Perhaps the best example of that interest is the recent legislation in Quebec.
This kind of common action across jurisdictions is not surprising. As I noted at the beginning of my remarks, all governments in Canada are determined to deal with the most important and preventable cause of disease and disability in this country. They all want to increase young people's awareness of the risks of tobacco use and strategies to avoid smoking. Our collective commitment to public health demands no less.
Governments need to keep using comprehensive strategies. We need to learn from what seems to work best. We need to close off the avenues that tobacco manufacturers use to reach young Canadians. Bill C-42 will, I believe, help Canada to do just that.
Thank you for your attention. I would be pleased to take questions.
Senator Kenny: The very groups that you thanked for assisting you in preparing this policy appeared as witnesses before you. They made a case that the government's approach was really playing into the tobacco companies' hands. They said that giving tobacco companies time to delay was helping them. They said that focussing on regulation was of assistance. They said that by not putting tobacco under the Hazardous Products Act, we were giving them more leeway. Finally, they said that cigarettes are the worst delivery vehicle for nicotine and that there are other methods of delivering the drug to individuals that are far healthier.
Do you have any comment on that?
Mr. Rock: Yes, I do. Of course, there are widely divergent views. There are major differences among the people you have heard on this issue. Even among the groups with which we have worked, there are different views about the pace at which governments should move and the measures that we should adopt in seeking even common objectives.
I understand fully that there are those who would have us put those prohibitions in place tomorrow so that sponsorships end immediately. I understand as well that there are many who would argue that to do so would be terribly unfair to other legitimate interests which we must keep in mind and that a gradual transition will allow us to achieve our common objectives, albeit not as quickly as some might like, while allowing others who have sometimes considerable interest at stake to make adjustments to protect those interests.
If ending sponsorships by tobacco companies were the only step that government was taking against smoking cigarettes, then I suppose the argument to move immediately and to forget about transition would be that much stronger. I want to remind senators that we meet in a context. That context is coloured by at least two other major considerations.
We are not just dealing with the ending of sponsorship and promotion by tobacco companies, which Bill C-42 contemplates. We are dealing in a context that includes the Tobacco Act (Bill C-71), considered and adopted by the Senate and by the Parliament of Canada. Bill C-71, the Tobacco Act, is a full frontal attack upon tobacco to the extent to which Canadian law allows. It was drafted and enacted following a judgment of the Supreme Court of Canada which delineated with great care the extent to which we can go as legislators in limiting advertising and commercial free speech. It is drafted to invoke the criminal law to provide for sanctions to those who contravene its terms and sell tobacco to minors. It is drafted to give the federal government broad and important powers to regulate tobacco as a product, to set out in regulations how it may be packaged and how it may be sold.
Bill C-71 is already on the books and it provides an important part of the context in which we are to consider the prohibitions on sponsorships.
There is another element of the context that should be borne in mind. When Parliament acted to adopt Bill C-71, Parliament, including the Senate, permitted sponsorships by tobacco companies to go on forever. The only limitation was on the size of the sponsorship.
Senators may recall that at the time Bill C-71 was being debated and, indeed, in the course of testimony before this very committee, there were those, sometimes from the same groups, who decried those aspects of the law and who said that sponsorship should be ended absolutely.
Senators, the context discloses that what Bill C-42 does is take that aspect of Bill C-71, the anti-tobacco bill, and toughen it. It makes that part of our full frontal assault on tobacco more effective. Instead of permitting sponsorships in perpetuity, it ends them after a decent interval to allow those with legitimate interests to make other arrangements.
Is it perfect? Of course not. However, like any legislation, it is an effort by government to balance societal interests while diminishing and, hopefully, eventually ending smoking. On the other hand, it will allow those with important interests at stake to make arrangements in the transition.
The last thing I will say is a matter of context, Madam Chair. The government, as you know, has also committed to the spending of $100 million in the coming five years, half of which will be used to enforce the statute and to monitor its compliance. The other half will be used in a campaign targeted toward young people to discourage them from taking up smoking and to encourage those who have started smoking to quit.
In that context, Madam Chair, having regard to the legislative powers conferred on the government by Bill C-71, recognizing that Bill C-42 tightens up and toughens a measure that was already contained therein, and thinking of the policy of government to invest significant amounts in the near term in a campaign to diminish and reduce smoking, I say that, balancing all the interests, this is the proper approach.
Senator Kenny: In the context of the $10 million per year that you will be spending on youth education over the next five years, we have just heard testimony that the tobacco industry is spending well over $100 million per year on advertising their product. Do you feel that this is a fair and equal balance? Do you feel that this response from the government is appropriate given the strength of the efforts of advertising companies?
Mr. Rock: Obviously, as Minister of Health, I always like to have more money for my department and for the important work that we are doing, including our efforts to discourage people from taking up smoking and to encourage them to stop if they have. I assure you, senator, that I will be an advocate for more spending by government on those efforts.
I should like to have much more than we have. I guess we will have to wait to see whether my efforts will be successful, both in terms of raising the taxes on cigarettes and setting aside more money from the Consolidated Revenue Fund so that we can broaden our efforts in the anti-smoking campaign.
Having said that, I am led once again to observe that a simple comparison between the amounts spent on advertising by tobacco companies, on the one hand, and the amount invested at present in the anti-smoking campaign on the other hand, does not reveal the full story. We must also bear in mind the steps that we are taking under the Tobacco Act, whether in relation to packaging, the disclosure of information, the restrictions on advertising or the compliance by corner stores and other vendors with the prohibitions against selling to minors.
In other words, it is a whole package of efforts. Although Bill C-42 appears on its own before this committee, I invite you to see it in context, to see it as part of the larger strategy.
Senator Kenny: Given that the government reduced taxes significantly in 1994 to deal with smuggling, and given the $206 billion settlement that took place in the United States which resulted in immediate price increases in the United States, how long do you expect it will take the government to restore the taxes in the five provinces that are affected?
Mr. Rock: I cannot give you a date. However, I can say that every member of government has made it clear that we are committed to increasing taxes as much as we can as soon as we can without touching off the smuggling problem that plagued the country in the period up to February of 1994.
I can also tell the committee that that decision is made in a coordinated fashion between the Minister of Finance, the Minister of Health and the Solicitor General who, through communication with the RCMP, determines from police forces in affected areas their best judgment of the effect of any tax increase.
I should also point out that we increased the excise taxes in December of 1997 by an amount that was felt at that time to be the greatest amount possible. I assure you that we are monitoring the situation constantly, particularly in reference to the recent increase in prices in border states in the United States.
Senator Kenny: Shortly after you assumed the portfolio which you now hold, sir, your position on Bill C-71 was that the appropriate follow-up steps would be to have the tightest and toughest regulations that you could craft, together with the narrowest possible exception for Formula 1 racing, as well as periodic tax increases.
What caused you to change your mind? What additional tobacco legislation do you contemplate over the term of this government?
Mr. Rock: When I was first appointed Minister of Health, I found on my desk a copy of a letter sent by my predecessor dated April 27, 1997, to an addressee whose name I cannot now recall. That letter was a commitment to amend the Tobacco Act so that international auto sports could continue to enjoy tobacco sponsorship in Canada.
It presented a challenge because it was a commitment that, in order to fulfil, would require us to change the act. We thought at first that, in a way, it might weaken it. It was in that sense that I said, when asked, that in order to fulfil the commitment we would do the least amount necessary and we would open it as narrowly as possible in order to ensure that we kept our word but did not go further than we had to in doing so. I then added that we would increase taxes to the extent possible and add whatever other regulation we could to achieve our stated goal.
You ask what changed my mind. Frankly, we found a better way. We found a way to fulfil that commitment while at the same time making the Tobacco Act tougher on tobacco. We found a way to turn that difficulty into an opportunity. As I have already explained, the Tobacco Act approved by Parliament in the spring of 1997 would have allowed tobacco sponsorship to go on forever. Although it was limited, there would still be a tobacco company's name at the event and, indeed, off-site.
We found a way to fulfil the commitment to allow the motor sports to continue with sponsorship but, at the same time, we found a way to write into the law a date by which not only that sponsorship but all sponsorship would end forever. That date is only five years distant. In the meantime, as you have heard me say in opening and as you know from the bill, the sponsorship provisions would be severely restricted after the first two-year period.
My answer, in short, senator, is that although I thought at first that we would have to create an exception to permit motor sports to continue, the fact is we found a better way.
In answer to the question about what further legislation I have in mind, in the very short term, we will be tabling regulations dealing with reporting requirements. They will fulfil commitments we made in June of this year when I tabled Bill C-42 that arise from a long period of consultation with interested and knowledgeable parties.
We will also be publishing information letters with respect to other proposed regulations, including labelling, packaging and some other elements of marketing. Fundamentally, our intended steps in the short to medium term will involve regulations, which will exercise powers provided by the Tobacco Act and which form part of the overall strategy against tobacco.
Senator Kenny: How do you justify the current tobacco policy when California has a policy that, over a three-year period, managed an overall reduction of 36 per cent in smoking? California has a youth smoking rate of 12 per cent while we have a youth smoking rate of 30 per cent in Canada.
Mr. Rock: The numbers you disclose make it clear that California is an example for all to emulate, perhaps not so much in the exact means because cultures differ and approaches will depend upon individual judgment, but certainly in the depth of commitment and in the degree of priority that governments assign to this challenge.
California has obviously done very well indeed, and I think we should emulate whatever it is that works. For that reason, we have been looking closely at the strategy in California, the nature of the advertisements, and the strategies they use to get at young people in school. In the new year, we will announce details of our anti-smoking strategy directed at young people. I can assure you that it will borrow in significant part and reflect in many ways the strategy that has been so successful in California.
Senator Lynch-Staunton: You mentioned the letter that awaited you when you arrived at your office the first day. That letter followed a number of discussions particularly with promoters of motor car sports in Canada. Your predecessor was having those discussions at the same time that he appeared before the Senate committee and denied that any amendments to Bill C-71 were being discussed that would have allowed a little leeway in motor sports and other sponsorships. I found it rather an affront to Parliament to have a minister of the Crown negotiating flexibility in the bill with an interested party while showing rigidity before the Senate committee.
That is all past history, but I mention it because I hope that you can assure us that, in your case, you are not bent on relaxing this bill or tightening it up at the same time that you are pleading for it today.
Mr. Rock: No chance.
Senator Lynch-Staunton: I hope that was a unique experience, because it was most unpleasant. All of Parliament should have been insulted by that behaviour.
I know of no bill other than C-71 that depends so much on regulations for its implementation. There may be others, but I am not aware of them. No regulations, no implementation.
I asked both Dr. O'Neill and Mr. McNaught today, but they were not able to answer at the time. I hope that they have had time to look into it and that I can get an answer either from them or from you, minister. Is there anything in Bill C-42 or in Bill C-71 that, through regulation, would allow the Governor in Council, for whatever reason, to exempt or change the two-year date and the five-year date or to exempt interested parties from abiding by those dates?
Mr. Rock: You were good enough to raise that earlier, and we have given it some thought. I will invite my colleagues Mr. McNaught and Dr. O'Neill to comment, if they should like.
If I may, I will speak for them in saying that, indeed, we have come to the conclusion that that could not happen. The compliance dates are spelled out in the legislation proper and legislation would be required to change them. Having said that, let me add that such regulation would not be enacted in the usual way through Order in Council but would engage Parliament's attention because of the provisions included at the time the bill was adopted in the House of Commons. As in the case of the Firearms Act, Parliament must be directly engaged in the regulation process. First, the dates are provided for in legislation and can be changed only with the concurrence of both Houses of Parliament and, second, even the regulatory power provided for under this statute is exceptional in that it will involve public discussions in Parliament that are not ordinarily incidental to the regulation.
Senator Lynch-Staunton: I do not want to get into that.
Mr. Rock: I will ensure that my colleagues are comfortable with what I said.
Senator Lynch-Staunton: They had better be. They might have a letter on their desks tomorrow.
Mr. Chris McNaught, Senior Counsel (Department of Justice), Health Canada: I appreciate the deference, minister.
Senator, I return with pleasure to your question from this afternoon. I hope it was not mistaken as obfuscation my part. I was attempting not to deal with what I perceived as a political question at the time. The esteemed minister has already dealt with that, so perhaps I could deal with some of the more legalistic aspects that may have concerned you at the time.
As you are no doubt aware, senator, section 33 of the substantive act provides for the various regulatory powers. As you are also no doubt aware, regulations cannot by themselves contradict substantive provisions in the act. They cannot reverse substantive provisions. For example, frequently regulations are viewed as the fleshing-out mechanism of the act. The extent to which an act has to be fleshed out may be contentious, but, for example, the font, size and location of a sign are the sorts of things that the regulations can address. Nowhere in the regulatory powers of Bill C-71, or the Tobacco Act, is it stated that the substantive provisions for dates of implementation or coming into force of any other amendments are covered by that.
As you may also well recall from the passage of the Tobacco Act, section 42 was a very notable addition towards the close of that experience. It provides that even if the regulations were able to do what perhaps you are concerned they may be able to do, they would nevertheless have to go before the other place first, so there is every stricture on such an event arising.
The Chairman: If I may interject here, since we are talking about the regulations and since the minister was talking about the regulations in response to Senator Kenny's question, this committee has lately been asking ministers who come before us to ensure that both the other place and the Senate are treated equally in the matter of the bills that come before them.
That did not happen with Bill C-71, because when you come down with regulations you only have to lay them before the House of Commons. I think it might be appropriate, certainly not in the form of an amendment, but in a commitment, that when you lay them before the House of Commons, as now has been put into other bills, that you would also lay them before the Senate.
Mr. Rock: Are you inviting me to make that commitment?
The Chairman: Yes.
Mr. Rock: I will not give you a commitment at this moment, but I will be happy to take it under advisement. It is something I should consider, and I will respond to you in due course once I have had that opportunity.
Senator Kenny: Several committees have had commitments of this sort by way of letter from individual ministers, and when subsequent ministers replaced them in that portfolio, they chose not to honour them. It is important if we are to get a commitment of this nature that it be a commitment from the government as opposed to an individual minister. That is not intended to be disrespectful to you, sir; it is simply a reflection of the fact that there have been previous and different ministers and different governments who have said, "Yes, that is something I will be pleased to do," and when the Senate has then gone back to their successor, the answer was, "Oh, well, that was then, and this is now, and it ain't going to happen."
Mr. Rock: All the more reason for me to consider the matter. It may be that the best response would be a governmental policy for all such circumstances, not just on a one-of basis. Let me take it up with my colleagues, and I will respond once I have had that opportunity.
Senator Lynch-Staunton: I thank Mr. McNaught for his explanation. I was not asking a political question. I never ask political questions.
On the question of regulations, Bill C-71 presently reads that the regulations will be laid before Parliament and referred to a committee which may conduct inquiries or public hearings. It is not compulsory, so it should be tightened up, and it should be either a joint committee or before both Houses.
In five years, in 2003, there will be a partial total ban on tobacco advertising. I am not wording it right, but I think you know what I mean. A certain form of tobacco advertising will no longer be allowed.
One of the reasons Minister Epp's bill was struck down by the Supreme Court is that the majority felt that it was not Charter-proof and that it violated the Charter by not allowing commercial free speech. Why would their opinion in that case not be the same as in this case since there is to be imposed, within five years, a partial ban on commercial free speech?
Mr. Rock: In essence, it is free speech in the commercial context. The Supreme Court of Canada found that there is a right in the commercial context for a vendor of goods to communicate with potential customers of goods, and to extinguish that communication is a violation of the right to free speech in the commercial sense.
I will give you a short answer because the long one would be very tiresome. It seems to me on a reading of the Supreme Court of Canada's judgment the first time around that they found on an overall consideration of the statute that it effectively deprived the vendor of the right to communicate with the customer. It cut off the communication altogether, and that was unreasonable.
Bill C-71 was drafted to permit a level of communication, which Parliament thought was commensurate with the nature of what is communicated. Those who smoke could get information from people who sold smoking materials relevant to the smoker's decision about which brand to purchase, in which size, and so on. Bill C-71 allows a degree of communication commensurate with the societal risk as Parliament assessed it.
Sponsorship is a form of communication; promotion is a form of communication. When Bill C-71 was adopted by Parliament, the balance was such that although such communication was limited, it was still permitted in some form. Bill C-42 goes beyond that and extinguishes that kind of communication. We looked carefully at the question of whether in doing so we crossed the line drawn by the Supreme Court of Canada.
Our best judgment, senator, is that this is constitutionally defensible because even after that form of communication is stopped, the other forms permitted by Bill C-71 will continue. There are still ways in which the manufacturers and purveyors of tobacco can communicate with their customers about their product, whether it is in limited circulation publications, in specific physical places where only persons of age are permitted to go, or whether it is on the package itself.
While it is fair to say that Bill C-42 affects the balance struck by Bill C-71 and further limits the communication between manufacturer and purveyor on the one hand and the customer on the other, it does not extinguish it. It does not commit the legal offence that the former statute did, although it further restricts the nature of the communication.
Senator Lynch-Staunton: The former statute banned advertising but kept sponsorships, as long as they used the corporate name rather than the product name, as I recall. In this bill, advertising will be allowed and sponsorships will be banned. It is the reverse, to oversimplify it. You feel, then, that there is enough commercial free speech in this bill to offset the concerns of those majority judges who felt that commercial free speech was being too harshly extinguished, eradicated or limited in Mr. Epp's bill. In layman's terms, that is how you are rationalizing this.
Mr. Rock: That is our judgment and we are confident in it. As I have told you on other occasions and regarding other pieces of legislation, when other legal issues arise, one can never be absolute. However, we are confident in our position and are prepared to defend it in court. We believe it will succeed. That is the judgment at which we have arrived.
Senator Joyal: Mr. Minister, you mentioned that there are 4,000 chemicals in tobacco, of which 50 are cancer-carrying by-products.
In an answer to previous questioning outlining your initiative in the forthcoming years, you referred to regulations under Bill C-71, chapters 3 and 4. None of them deal with the regulation of the product itself. We raised that issue with witnesses and experts this afternoon. It is strange that we are confronted with a product that is very dangerous, one that is causing important casualties in the health of human beings, and nowhere do we get a sense that someone is tackling the real problem, which is the product itself. We are tackling the outside effects, but not the cause. Will your department in forthcoming years consider changing the classification of that product? You have, yourself, compared that to various other materials. Why do you not want to list that product as a hazardous material? The Health Department would then have the capacity to regulate the product and eliminate what, in the opinion of experts and scientific people, is causing the damage we all agree exists.
Mr. Rock: The statute provides us with the power to regulate the product. It becomes a question of what regulation is appropriate and effective.
I am confident the day will come when the government will invoke that power in an effective and appropriate way to further the objectives of diminishing smoking and protecting public health. In fact, work is under way now in the department, in the labs and also in the offices where policy is made to consider how that power in the statute might most effectively be used.
I do not have an answer for you this evening, but I can tell you that the government insisted on having the power in the statute because we believe the day will come when it can be invoked to effect.
We have opinions that cigarettes, for example, are not properly included in the Hazardous Products Act because the harm comes when they are used as intended. It is not as though they present a hazard if they are misused. For example, they cannot snap as you are manipulating them and hurt a finger, or collapse if you put the improper weight on them and cause damage when you fall. When you use cigarettes as intended, the harm ensues. Hence, the question before us is this: Are we prepared as a nation to say that the product is illegal, rule it out and say that no one can have it? I think not.
We learned decades ago -- and it might have been obvious in the first place -- that prohibition is ineffective when it is imposed by force of law on a population determined to get access to the prohibited substance by one means or another. In place of the present problems, there would be others, some more difficult to resolve than the present ones, involving threats to law enforcement and respect for the rule of law itself.
We are not, I think, at the point where we are prepared as a nation to say that tobacco will be illegal. The Hazardous Products Act does not apply or would not seem to help. What, then, should we do?
I suggest that we should use all of the powers that Parliament has now conferred upon government through the Tobacco Act to limit efforts to make the product desirable, to discourage those who might be inclined to start smoking, to regulate the means and manner of manufacturer and sale, and eventually to regulate the product itself in order to mitigate its damage and hopefully reduce its attractiveness. It is that strategy upon which we have now embarked.
Senator Joyal: You are no doubt aware that the B.C. legislature has adopted a tobacco damages recovery act in order to offset the financial responsibility that weighs on the shoulder of the provincial government due to the use of tobacco. Is that an initiative you would contemplate if the court holds the legislation constitutional once the litigation is over?
Mr. Rock: Shortly after I became Minister of Health, I examined the question of whether the Government of Canada could maintain such litigation. I asked for and received legal opinions on the matter. After having considered the work, I concluded that the actions might better be brought by provinces rather than by the Government of Canada. I brought the information to the attention of my provincial colleagues and encouraged them to consider that course of action. British Columbia has done so. Others are considering a similar step.
I have shared with my colleague in British Columbia, the Honourable Penny Priddy, Minister of Health, the legal work that was done for me in order that she might have access to the opinions and commentaries that were prepared for me. I have told her that I will assist her in every way possible in the efforts she is now making to pursue the tobacco companies for recovery of the expense to which British Columbia has been put, through its health care system, as a result of the use of tobacco.
As to our own circumstances, depending upon the outcome of the current challenges to the legislation in British Columbia, we will determine how best to proceed. Nothing has been ruled out and we will act as the legal situation is clarified through the litigation now before the courts.
Senator Joyal: Of course, in addition to the two class actions in Ontario and Quebec there are, as you are aware, other actions in other provinces that essentially deal with the same objective, that being to have the court recognize that there are damages for which someone should be held responsible and which someone should pay.
Mr. Rock: Yes. The class actions, of course, are slightly different in the sense that they seek to recover damages suffered by the individual smoker, whereas in B.C. the litigation is about the recovery of those amounts paid by the government for health costs generally. However, I take your point.
In all such cases, the purpose is to hold the companies accountable in law for the consequences of the use of their product.
I must also point out that there are those who contend that it is inappropriate to both tax the product and pursue them civilly for damages when it is believed that their product causes harm. They believe that we should do one thing or the other. I am not pronouncing on the controversy; I am just identifying it.
[Translation]
Senator Nolin: In your opening remarks, you mentioned this new era of cooperation between various levels of government, and that was a very relevant point you made. Everyone has the same goals. It's a matter of ensuring that these goals are reached. It was judicious of you to make that remark, and you made it in French. The shoe fits you well, and you should wear it.
If we read the provincial legislation from Quebec and Bill C-71 and Bill C-42, we see a number of differences. What rule applies when the two pieces of legislation conflict?
Mr. Rock: Basically, the tougher law applies. If there is a federal statute and a provincial statute on more or less the same matter -- particularly if they regulate products -- the tougher statute applies. That's the general rule.
In this case, as you pointed out, there is some similarity between the two. But there also is a difference. Both statutes provide for a transition period; both put an end to tobacco sponsorships. But there are differences between the two: the transition periods, are not identical. If there is a difference between the two regarding sponsorships, the tougher statute will apply.
Senator Nolin: Let me be more specific. Last December, I tried to reach you to discuss this problem. The provincial statute deals with this matter, while the federal statute deals with the same situation differently.
I am talking about cigarette machines in the province of Quebec. I am sure your officials know what question I am going to ask. They met with cigarette machine owners. They are quite satisfied with the Quebec statute, but not with the federal law. They were hoping for amendments to Bill C-71 to correct an inequity.
In Quebec, cigarette machines are allowed in restaurants, and so someone under 18 years of age has access to them. It is possible, or in other words it is not illegal, to have someone in authority within the restaurant activate the cigarette machine using a remote control after he has checked the age of the would-be cigarette purchaser. So, the machine can dispense cigarettes. That is the provincial legislation. The federal legislation prohibits this, except for a machine like the one I just described, in places where alcoholic beverages are served, such as taverns, pubs, bars, places where people are at least 18 years of age.
The federal legislation does not prohibit cigarette sales in corner stores, places where young people under 18 can go. Selling cigarettes to people under 18 is prohibited. The young people in question are under 18, yet they do have access. Despite the laws that have been passed, kids are still buying cigarettes in places like corner stores. This seems unfair to me.
The provincial legislation corrected this problem. The federal legislation still contains this mistake. I would have liked to have asked you the question in a less public forum. This is my only chance to ask you the question. Why did you not include a change in Bill C-42 that would have provided for better harmonization between the provincial legislation in Quebec and the federal legislation?
Mr. Rock: It is true that a person can buy cigarettes in corner stores if he has reached the age of majority, but a few moments ago I was saying that we were going to allocate $50 million to enforcement of Bill C-71.
At present, we use some of that money to pay for sting operations. People who look young go to corner stores and try to buy cigarettes. Some people have already been charged with offences under the anti-smoking legislation.
We are very active with our provincial partners throughout Canada. I have signed seven or eight agreements with the provinces -- maybe nine now -- regulating the federal government's and the provinces' dealings regarding enforcement of the anti-smoking legislation.
We are currently paying for the people that the provinces hire to make sure that corner stores and other tobacco outlets do not sell to minors.
[English]
Senator Grafstein: Senator Nolin raised the topic that I want to explore with the minister. I am interested in examining the scope of both the federal and the provincial powers to provide a fail-proof system. We have one Canadian at the bottom of all this and we want to ensure that that Canadian is covered. I heard your answer about the stricter provision applying.
I am curious about the federal power. What federal power is being deployed here for this bill? What powers are the provinces deploying? I looked at the B.C. act, which deals with the compensation issue. It is punitive enough; it almost has the colouration of the Criminal Code.
My question relates to trying to establish a system that is judgement-proof against constitutional and other challenges. Give us an idea about the powers here and how we can be satisfied that this bill is sufficiently far-reaching in its scope to limit any aberrant province from going in a different direction.
Mr. Rock: We do invoke the criminal law power by creating the offences to which I have referred. If someone sells tobacco products to a person who is not of age, we invoke the criminal law power to create an offence.
Senator Grafstein: I meant Bill C-42.
Mr. Rock: If enacted, Bill C-42 will become part of the Tobacco Act.
As was made clear by the Supreme Court of Canada when it considered the previous legislation, Parliament calls upon more than one head of federal constitutional authority in enacting provisions to the preparation, sale and marketing of tobacco products. The court left no doubt that this is a field in which Ottawa can legislate validly. As I mentioned when answering questions by Senator Lynch-Staunton, the previous legislation ran afoul by the degree to which it interfered with commercial free speech.
The court left no doubt that this is a proper area of federal legislation. It was also made clear that the criminal law power can be invoked to create offences. There is a legitimate federal interest.
That does not mean to say that we have occupied the field exhaustively of that the provincial governments cannot act. I assume that the Quebec legislation is enacted under property rights and civil rights and, perhaps, other heads of provincial jurisdiction. I think it can validly and properly co-exist with the federal legislation.
Senator Beaudoin: It is mostly provincial -- section 92.13. I think it is based on the Criminal Code and if that is within the jurisdiction of the court, then it is correct.
Mr. Rock: That is correct. I hesitate to respond to any constitutional questions in the presence of Senator Beaudoin.
Senator Grafstein: Senator Beaudoin took the nuance that I wanted to bring to your attention next. Is not the best way to have a prophylactic system, when it relates to this egregious conduct, to employ the criminal power? Would that not be a total answer to the conflicts that Senator Nolin notes will no doubt arise?
Are you able to do that in a way that makes it absolutely clear that this is in aid of the criminal power? Therefore, as a result, it provides the Canadian public with a fail-safe system without getting into a federal-provincial dispute province by province.
I know that is a difficult question. I am just trying to put it on the table as a way to go.
Mr. Rock: This statute is under attack in a courtroom in Montreal, as we speak.
Senator Grafstein: Yes, I understand that.
Mr. Rock: The Government of Canada is arguing that it is fully constitutional and is using the criminal law power in defence of its position, among others.
I want to emphasize that there is not any degree of conflict between governments on this point. Governments are common in their desire to see smoking reduced and eventually eliminated, if we can do it. After all, it is the provincial governments who, in financial terms, carry the greatest burden. All of us are losing our family members and friends to premature death due to smoking.
This is not a political, partisan or constitutional battleground by any means. We have good, cordial and constructive relations between officials and ministers on this issue.
I believe Quebec is the only province that has so far enacted legislation in this regard. The two statutes, the federal and provincial in the instance of Quebec, sit well together. Any degree of inconsistency that exists can be either adjusted or tolerated with minimal interference. It is an interesting example in this federation of how different orders of government can act in their own way but for a common cause, and do so very effectively.
Senator Grafstein: I have a sinking suspicion that we will be back here shortly to review the court decisions dealing with this exact subject matter. Perhaps we can say à demain to this particular question. We will be back, no doubt.
[Translation]
Senator Lavoie-Roux: We are aware that Quebec has passed tobacco legislation. It has a provision that provides for compensation to cultural organizations and other groups that have sponsorships. Is it easy to provide compensation in this bill? I do not want to find another bone of contention, as you say in English, with Quebec. Have you consulted Quebec or did you contact Quebec regarding this bill?
Mr. Rock: Yes, we contacted officials from the Quebec Ministry of Health last year when we considered all our options. As for compensation for people affected by the ban, the government can choose between two strategies subsequent to such change in the law. First of all, a transition period is provided for so that those affected can change sponsors in order to find other sources of revenue. Secondly, financial compensation will be provided to those affected by the legislation. The federal government opted for a transition period so that those affected could find other sources of revenue. In response to Senator Kenny's question, I said that yes, some agencies and individuals criticize these measures, asking for immediate action. But if you take that approach, you also have to compensate the people affected. We decided to go for a two-phase transition period: a two-year cut off and a five-year cut off.
Senator Lavoie-Roux: And no compensation.
Mr. Rock: That is right.
Dr. O'Neill, Senior Policy Analyst, Tobacco Policy and Coordination Unit, Health Policy and Information Directorate, Policy and Consultation Branch, Health Canada: Senator Lavoie-Roux, there are different ways of approaching what Senator Grafstein was talking about. It is important to note that the provincial legislation reflects the amendments found in Bill C-42. When the minister tabled the bill in the House of Commons, Quebec's bill was before the committee of the National Assembly. Minister Rochon and the members of the National Assembly made changes to their bill so as to reflect the federal bill's objectives and deadlines. For example, the Quebec legislation now includes what is known as the federal option. Groups that respect the deadline found in Bill C-42, namely five years, will not receive compensation. Only the groups that decide to give up sponsorships entirely by October 1, the year 2000, will be eligible for financial compensation from the government. The Quebec legislation and the will of the members of the National Assembly are in complete agreement with Bill C-42.
[English]
Senator Beaudoin: I wish to return to the point raised a minute ago. Obviously, everyone agrees that if it is based on criminal law power, then it is a federal matter and there is absolutely no problem. However, I do not think it was based on that. The test of the court was so refined that the federal authority may legislate when a substance is dangerous to health. They rely on the Criminal Code. The province may do the same as far as property and civil rights and publicity are concerned.
We will have to come back to the case that is now in Montreal. It will go to the Supreme Court, which will have to decide that. It is clear that the basis for the federal authority is criminal law if the matter is very important or dangerous substances if it is not a crime, and smoking is not a crime. We must remember that. However, it is dangerous to health. The federal authority may still intervene because it is dangerous to health.
It is like the total ban that was set aside in the first case. It is because the ban was total that it was held ultra vires. Had it been relative, it would have been accepted. The problem is simply in that area. If it is relative it is acceptable under the Charter, but if the ban is absolute, it is not acceptable, unless the Supreme Court changes its mind, which is unlikely.
On the other hand, in what field can the provinces intervene? I do not think they can intervene other than through property and civil rights. The federal government may intervene under criminal law power and substances dangerous for health. Obviously, the provinces cannot encroach on those areas. The test was not clear-cut in court. I am glad that the case will be considered again. Why not? It is good for business.
Mr. Rock: I respectfully concur.
Senator Mahovlich: You mentioned prohibition and Americans.
Many Canadians, particularly out west, became wealthy as a consequence of prohibition. I am wondering about your work with the Americans on this. Are we close to them or are our minds on parallel tracks with them as we go along? A lot of our towns and cities are along the border. I think that if we have a car race down in Niagara Falls, Canada, the cigarette companies will go over to Buffalo or Niagara in New York and take our car race with them.
Do you communicate with the Americans at all on some of their legislation?
Mr. Rock: That is a good point. In fact, it is impossible to legislate effectively while ignoring such a huge influence right next door. Since the vast majority of our population live within an hour's drive of America, it is a consideration that we must always keep in mind.
We maintain communication with the Americans. I met with Secretary Shalala last May in Washington to discuss that matter with her. Our officials keep in close touch with each other and monitor developments. However, their political system is so vastly different that it is hard to remain locked in step with them because they go off in funny directions sometimes.
The President announced in the summer of 1996 or 1997 that there would be a complete ban on sponsorship by tobacco companies. He had no sooner said it than he got in political difficulty.
The President has difficulty with tobacco products for a number of reasons. He said that there would be no more sponsorship or that it would be introduced soon and would be qualified. Power was given to the FDA to regulate tobacco. That matter was challenged in the courts and is now in abeyance. It is difficult to say where the matter will go from here.
The most significant influence is smuggling. Their tax rates compare to our excise tax rates on the cigarette product.
As a senator mentioned earlier, the current settlement will result in an increase in tobacco taxes in the United States. We will do everything we can to take full advantage of that by increasing Canadian taxes as soon as we can with the agreement of the provinces affected and the concurrence of the police.
In answer to your broader question, I think you are asking if we will suffer because border towns and cities might loose events to American sites where the tobacco companies can sponsor. Perhaps we will. However, the trend internationally is to extinguish sponsorships and that is something that even the Americans will eventually do.
In the meantime, with the period of transition, we hope that events in Canada will find other sources of revenues so that they can continue with sponsorship that does not pose such a health risk.
The Chairman: Thank you very much, Mr. Rock. You have given us more than half an hour beyond what you said you would. We will keep Mr. McNaught here, though, to answer the one question from this morning for Senator Nolin.
Mr. Rock: Madam Chair, may I say before leaving that I appreciate the effort that you and other honourable senators have made in accommodating your schedule because I was not able to be here tomorrow nor earlier today. I thank you for your courtesy. As always, it is a pleasure to appear before this committee and I look forward to seeing you again.
Mr. McNaught: This is a mixed legal and policy question, so I will defer to my colleague if he feels that he should be included.
I had a strong recollection of the issue of vending machines as we were taking Bill C-71 through Parliament in the first instance.
As honourable senators will recall, the phrase used in the Tobacco Products Control Act was "vending machines". There was a great deal of discussion about what that meant.
There was some case law from the United States which indicated to the benefit of those who would like to keep vending machines that where it is not defined and where other words are not used, in the statute, "vending machine" was taken to mean "automatic," some sort of mechanical device that obviated or precluded the presence of a human being intervening or being involved in a sale.
Health Canada's health policy or health objective was to ensure in this legislation that there would be face-to-face sales. That was the continuing policy dealing with vending machines.
In determining what phrase they would use this time, Health Canada and the government considered other aspects. As is obvious, the phrase "dispensing device" was used this time. That is broader than just "vending machine." This is a plain phrase in English. Perhaps the French "distributeur" is better.
The thinking behind the use of this phrase in the statute was that other, less physical considerations than just the face-to-face sale of the product were accommodated or afforded by a vending machine. The visibility, access and pervasiveness of the product were also of concern in the legislating mentality when this legislation was drafted.
The thought here was that young people see the machine being used. It is part of the environment and is readily accessible to people. They put in a coin and they take the product. A person still goes over there to do the face-to-face sale when they have those electronic mechanisms.
The machine is still a strong promotional device. It appears to be accessible. It is part of the environment and what my colleague has called the multi-faceted aspect of the smoking take-out process.
The physical aspect was the sole motivation for "vending machine" but "dispensing device" represents a distinct progression in the thinking in terms of the health objectives.
Senator Nolin: Where is the logic in keeping this device in a bar?
Dr. O'Neill: I cannot speak specifically about the particulars to which you refer. My history in the department does not include dealing with the vending machine issue.
However, I can add something to your question that will inform other senators as well. Other jurisdictions in Canada and in North America have already instituted bans on vending machines. I realize that that it is an issue among vending machine distributors in Quebec.
[Translation]
Senator Nolin: If Quebec decided to continue allowing cigarette machines, even if Ontario did not, that has nothing to do with the government of Quebec. If the Government of Quebec decides to allow cigarette machines with all due respect, that is not your business. That is why I asked the minister if there is a rule in case of conflicts between the two statutes. The rule is that the tougher statute prevails, but also the more logical statute. The way you drafted Bill C-71 is not logical; for example, the provisions for checking the age of cigarette buyers under 18.
Dr. O'Neill: The bill we have presented to you with deals with sponsorship issues. If the issue is important to you, I certainly can check with my colleagues in the department and send you an answer soon. Unfortunately, I cannot commit to anything more than that.
Senator Nolin: Do that. In any event, that is what I wanted from your minister, so if you can give me a written answer, go head.
[English]
The Chairman: Honourable senators, at this point we have had quite enough. It has been a long day. Thank you for coming before us this evening and pass our thanks on to the minister.
The committee adjourned.