Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 50 - Evidence

OTTAWA, Wednesday, March 19, 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 3:15 p.m. to give consideration to the bill.

Senator Sharon Carstairs (Chair) in the Chair.


The Chair: Honourable senators, we are beginning today our study of Bill C-71.

It has been the custom of this committee at the beginning of study on a bill about which we think there will be a certain amount of energetic debate that a motion be proposed to the effect that any consideration of votes on any motions dealing with disposition in committee of the bill, which in this case is Bill C-71, be held no earlier than at the completion of the hearing of all witnesses.

Senator Beaudoin: Madam Chair, I so move.

The Chair: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

The Chair: I wish to welcome Minister Dingwall. We hope that you will have sufficient time to answer our questions this afternoon. We know you want to begin with some opening remarks. We welcome those to begin the process.

The Honourable David Dingwall, Minister of Health: Thank you, Madam Chair and honourable senators, for your kind invitation to be here to give evidence with regard to Bill C-71. I have in my company today three senior officials: Mr. André Juneau, the Assistant Deputy Minister, Policy and Consultation Branch, Health Canada; Ms Judy Ferguson, Director General, Health Policy and Information Directorate, Policy and Consultation Branch, Health Canada; and Mr. Chris McNaught, Counsel, Legal Services, Health Canada, from the Department of Justice.

Honourable senators, let me say at the outset that if, at the end of my presentation you have a number of questions, I would be happy to entertain those. In addition, if senators thought it would be appropriate for me to return at a subsequent time, I would be happy to oblige.

As many of you know, in the past few weeks debate over the merits of Bill C-71 has intensified. Yet, I think it should be noted that few, if any, who oppose this important piece of legislation take issue with its objectives. How could it be otherwise, I think is the most appropriate question.

As we all know, tobacco is a lethal product. It kills people. It always has, and it always will. Each and every year it kills more than 40,000 Canadians. That is one in five Canadian deaths.

In the United States, tobacco use is responsible for the deaths of more than 400,000 Americans each year. World wide, smoking kills one person every 10 seconds.

How could any responsible government not act to deal with this threat to the health of its citizens? In Bill C-71, I believe my government has acted, and has acted responsibly.

Tobacco use is an issue which has confronted many of my predecessors. Their governments, and I am referring specifically to the Honourable Jake Epp, acted with the same sense of responsibility with which we move forward today.

Let me summarize briefly what this legislation will do. The proposed legislation will make it more difficult for young people to buy tobacco products. It will strengthen the health information that tobacco products packages must display. It will establish the authority to regulate tobacco products. It will restrain all aspects of tobacco promotion, and diminish the prominence and the exposure of tobacco promotion, particularly to young Canadians.

It will limit tobacco product advertising and prohibit the use of tobacco brand names or logos on youth-oriented products or those with life-style connotations. It will regulate the use of tobacco brand names and other brand elements in the promotion of events sponsored by tobacco companies. It will limit the use of sale promotion techniques that encourage smoking.

The government recognizes the freedom-of-speech issues raised by the control of tobacco promotion. In crafting this legislation, we have drawn on the guidance provided by the Supreme Court of Canada in its 1995 ruling on the Tobacco Products Control Act to ensure that Bill C-71 respects the Charter of Rights and Freedoms.

The Supreme Court of Canada recognized a link between tobacco advertising and consumption, and clearly confirmed that the federal government can control tobacco advertising under the criminal law power. The court held that Parliament can:

...validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use.

The debate, therefore, is whether the restrictions in Bill C-71 are reasonable -- reasonable in terms of the problem they attempt to address and reasonable in terms of the consequences they can be expected to have.

We believe that they are. While there may be some economic impact depending upon the business decisions ultimately taken by the tobacco companies, an assessment of this impact must also factor into the equation the economic costs caused by tobacco use, costs that amount to $15 billion each year in direct health care and lost productivity.

We appreciate that the tobacco companies have, for a number of years, been increasingly associated with the entertainment of Canadians through their sponsorship of popular arts and sports events across the country. We also appreciate that the tobacco companies want to profile their association and, yes, receive credit for it. However, in light of the lethal health consequences of tobacco use, is it not reasonable to ask event organizers and sponsors alike to show some legitimate accommodation? A fundamental question in this debate, therefore, is: How much is enough? How big does the tobacco brand have to be before the tobacco companies are satisfied with whether it is visible enough? How many billboards, banners, flags, posters, bus panels, street kiosks and newspaper and magazine ads bearing the tobacco brand are required to ensure the commercial viability of sponsored events?

If -- and I want to emphasize the word "if" -- Bill C-71 actually banned the promotion of tobacco products, there may be some validity to the arguments being made that the bill unreasonably violates the tobacco companies' rights of freedom of expression, but such arguments do not stand up to scrutiny because the proposed legislation does not ban tobacco promotion. It allows product advertising. It allows the display of tobacco products at retail outlets. It allows tobacco companies to communicate information about their products to adult consumers. The tobacco brand will be allowed to appear on sponsored events promotion, for example, on signs at the event site and in publications with adult readership.

We have been reasonable in the substance of this bill, and we have been reasonable in its application. We have been mindful of the concerns among the arts and sports groups which benefit from tobacco sponsorship about the potential impact of Bill C-71 on their events. That was the reason behind the decision to defer implementation of the sponsorship promotion restrictions until October of 1998. This transition period will give event organizers two full seasons to make adjustments and to adapt to a new marketing environment.

Senators, I would like to take this opportunity to thank the Standing Committee on Health in the other place for their insight and guidance on this issue. When they reported on this legislation, they recommended that I consider an implementation period for the sponsorship provisions. We have responded to that recommendation.

I want now to take a moment to explain the approach we have taken in Bill C-71 to sponsorship promotion. I am well aware of the concerns which have been generated by these provisions.

It is important to remember first that advertising and consumption are related. As I mentioned earlier in my remarks, the Supreme Court recognized this in its 1995 ruling on the Tobacco Products Control Act. However, it is also important to understand that the relationship cannot be reduced to a simplistic mathematical equation of cause and effect. It is clear to those who have researched the issue that the smoking decision process is extremely complex. There is no magic bullet. It is not just one factor that causes individuals to start or to continue to smoke. It is clear from the great weight of research in Canada and, yes, internationally, that a combination of factors, including sponsorship promotion, contributes to the decision to smoke.

The decision to smoke is not just about starting. It also includes the decision to continue to smoke and the decision to delay or avoid quitting. In my view, it is simply untenable to maintain that tobacco promotion does not influence these decisions. Since tobacco promotion is so pervasive in our society, it cannot help but reach young Canadians, so it is equally untenable to maintain that tobacco promotion does not influence youth smoking behaviours.

The tobacco industry has said that the decision to smoke or not to smoke is one for informed adults to make, but what they do not say is that the people who make the decision to start smoking are rarely adults. They are kids, your kids and my kids, young kids between the ages of 14 and 16. By the time they become adults, the decision not to smoke is too often undermined by the addiction to tobacco that has already set in.

Bill C-71 does not prohibit tobacco companies from sponsoring events, nor will it deny them the opportunity to promote those sponsorship investments. This legislation will limit the extent to which companies may use the brand names of tobacco products in association with those sponsored events. This limitation will diminish the positive link between a product that kills 40,000 Canadians each and every year and a wide range of appealing and exciting lifestyle activities and events. The restriction is necessary because it is the presence of the tobacco brand element that converts the sponsorship promotion into a device to market a lethal product.

The approach in Bill C-71 is consistent with the guidance provided by the Supreme Court of Canada. The court determined that restrictions on the promotion of tobacco products are a legitimate means to achieve the government's health objectives and that such curbs are an appropriate response to the health impacts of tobacco use. These restrictions meet the court's requirement that a causal connection be established between the legislative measures proposed and the benefits which are sought.

Madam Justice McLachlin said:

Where...legislation is directed at changing human behaviour... the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic without insisting on direct proof of a relationship between the infringing measure and the legislative objective.

The measures contained in Bill C-71 are based upon reason and logic. Moreover, they are based upon the findings contained in the extensive and growing body of international research which consistently affirms the need for a comprehensive approach to tobacco control, including significant restrictions on the promotion of tobacco products.

A research bibliography that guided the development of this legislation was provided when the government released its blueprint for tobacco control more than a year ago and again in an expanded version when I announced the elements of Bill C-71 last November.

I am also aware that the concern has been expressed that the regulatory authority conferred upon the government by this legislation is excessive. Let me respond by making the following four points:

First, the bill is clear in setting out what will and what will not be permitted. Details specifying the time, place, and manner in which these restrictions and permissions will apply will be spelled out in regulation.

Second, the regulatory powers in Bill C-71 are not unusual or unique. They are consistent with the regulatory powers we have in other statutes -- for example, over drugs, food, hazardous products, transportation, and the environment.

Third, Treasury Board regulatory policy requires that affected parties be consulted in the development of regulations in a meaningful and transparent fashion. We will, of course, abide by that. There will be ample opportunity for stakeholders to comment on any proposed regulations before and after they have been gazetted.

Fourth, the transparency of the regulatory process will be further enhanced by the requirement in Bill C-71 that proposed regulations be referred to an appropriate committee in the other place for study and consideration. Members of the other place will have an opportunity to hold hearings and propose changes to the regulations. This will subject the regulatory process to even greater public scrutiny and comment.

I have emphasized from the outset of the debate over this legislation that Bill C-71 is, first and foremost, a health bill. It is about protecting the health of Canadians, particularly young Canadians, from the predictable and preventable consequences of tobacco addiction.

In writing the majority decision of the Supreme Court of Canada, Justice McLachlin said:

...protecting Canadians from the risks associated with tobacco use... constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter.

Justice McLachlin further stated:

...even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression.

Senators, we have moved with care and diligence in order to get this legislation right. We have considered the effects of tobacco use. We have followed closely the guidance of the Supreme Court of Canada. We have weighed the available research and the potential impact of the proposed legislative measures.

We believe that the measures contained in Bill C-71 are a reasonable and properly proportioned response to this country's most urgent and pressing public health problem.

At the end of the day, I must say to my colleagues here in the Senate, as well as those in the House of Commons, that this legislation in itself is not a panacea; however, it is an important and essential component of an effective tobacco control strategy.

Just as the government has taken guidance from the Supreme Court of Canada in drafting Bill C-71, I would hope that this legislation will offer some assistance and hope to parents. Parents do not want their children to smoke. They want their children to stay healthy. I believe the government has a responsibility to help fathers and mothers keep their children smoke-free.

That concludes my remarks. I am in your hands.

The Chair: Thank you, Minister Dingwall.

Senator Lynch-Staunton: Thank you, minister, for your statement.

I do not think there is any disagreement as to the purpose of this legislation. As you mentioned, and as we are aware, it builds on the bill that Minister Epp presented in 1988. Unfortunately, he went too far, according to the Supreme Court of Canada. As a result, we must start all over again. Hopefully you are right in saying that you have carefully considered the Supreme Court's reservations and taken them into consideration, as much as you could, in this legislation.

Our comments as these hearings develop will not be on the purpose of the legislation but on how to execute a discouragement of smoking, particularly among the young, without a complete banning of the substance, which obviously your government is not prepared to do. We can discuss that later on today, perhaps.

There are elements in this legislation which have raised some questions among us, and I will touch on one or two. My colleagues will develop them today and as we go on with those who come to support or condemn the bill. I suppose the most obvious one is what I find to be an excessive use of regulatory powers.

I know that it has become increasingly common for legislation to be tailored in a general fashion and then to leave it to bureaucrats and their ministers to define the legislation through regulations. I will not go into the philosophy of the abdication of parliamentary powers through regulations, but it is in a way abdicating one's jurisdiction when so much of the implementation of this bill is being handed over to experts, civil servants, and others.

I do know that your answer to that will be, "Well, despite all that, there will be a parliamentary committee charged with that. As the law provides in clause 42.1(2), every regulation must be laid before the House of Commons which in turn sends it to a committee."

I find that the legislation as presently worded does not oblige the committee to examine the regulation so much as to dispose of it without being obliged to call in witnesses and have a thorough public inquiry. If we are serious about Parliament's input into these regulations, why is the wording that the house committee "may" conduct inquiries or public hearings rather than "shall" conduct inquiries and public hearings so that the scrutiny is obligatory and not discretionary? We could have a case where the parliamentary committee will simply look at the regulations and decide that they are not worthy of further examination and have them go into effect automatically. If we are serious about Parliament having a say over the regulations, it has an obligation to examine them more seriously than can be interpreted from this clause.

Mr. Dingwall: You have touched on an important aspect of the substantive portions of Bill C-71. I want to be very clear, as someone who has, on previous occasions, had to review different pieces of legislation that the regulatory process under this bill is quite comprehensive.

First, a Treasury Board directive compels me as a minister of a department to have discussions with various stakeholders in my field, which would include both those opposed and those in favour. It is a directive which is placed by the Treasury Board, and ministers of the day must comply with it. It also talks about meaningful consultations, not merely off-hand or superficial ones.

Second, as you are aware, under the regulatory process of any bill, the gazetting of any new regulations once again lays a demand upon the government of the day to have meaningful consultations with the various stakeholders.

In addition to that, we have provided a mechanism for Parliament to decide on the level of review, if Parliament deems it appropriate. You may very well be right in terms of the discretionary versus the mandatory obligation which is placed upon the standing committee, but surely the standing committee should have that authority and discretion as to whether they wish to have an exhaustive review of a particular matter.

I feel confident, because of the groups which are part and parcel of this -- those with a promotional point of view, those from the tobacco industry, or those from the anti-smoking groups -- that in most, if not all, cases there will be a full and complete airing of the substance and direction of the regulations.

We have done other forms of examination on the regulatory process. I make mention, of course, of drugs, food and the Hazardous Products Act. It would be our intent to work in a cooperative way with all the stakeholders regarding these regulations.

Senator Lynch-Staunton: Minister Dingwall, I am sure your department has already started working on the draft regulations. Is it possible for you to submit them to us? Can you identify how certain clauses will be implemented by regulations?

There are, according to one witness, 19 key areas of the bill which will be implemented through regulation. It is an unusual piece of legislation in that so much of it will depend upon the regulations for its proper implementation and, if that is not done properly, it could also be subjected to a court challenge. Are there any drafts or anything in writing that could be put before us today to give us an indication how certain clauses will be implemented, particularly clauses 7, 14, 17, 33 and 42, which are the ones that are subject to a discretionary, thorough House of Commons committee scrutiny?

Mr. Dingwall: Senator, the short answer is "yes." We will try to provide those regulations if not later this day, early tomorrow, to all members of the committee in order that you can see first-hand the terms and the substance of the direction of those regulations.

Second, in terms of a possible court challenge to any of those regulations, we ought to be careful -- and I know that you are not suggesting this, senator -- but there have been some third parties in the media who say that they wish to challenge this legislation. Obviously, that is their right. I learned from the experience of my predecessor, Mr. Epp, so that the legislation and the regulations have been drafted in such a way that any portion thereof found to be ultra vires, void, null or what have you will not make the entire act null and void. That is what happened with the previous statute; certain parts were found to be unconstitutional and the act was thrown out.

We took our time in drafting this piece of legislation to ensure that the bill would not be found to be unconstitutional. A particular clause may be, but not the bill. We will provide draft regulations.

I wish to add further that there will be consultations on those draft regulations.

Senator Lynch-Staunton: I agree with you that this bill has been craftily divided into various parts so that if one part is found questionable, the other parts will not be affected. You have received good guidance from the Supreme Court. It is unusual that they would give such good guidance to the legislature and we want to make sure we have followed their guidance properly.

I am delighted you are to come back once our hearings are over in the event that we have developed more questions based on the additional knowledge we will have gained.

Does your department have any figures to show what happened to the consumption of tobacco products from June, 1988, when Mr. Epp's bill was given Royal Assent and went into effect, until September 19, 1995, when the Supreme Court regrettably found it ultra vires? What was cigarette consumption at the time of a total ban on advertising? Do you have those figures?

Mr. Dingwall: I do not have them at my fingertips. However, I undertake to provide that to the committee.

Senator Lynch-Staunton: It is important to determine whether we can link the Epp bill with tobacco consumption during those years. If there is a trend line going in the direction we are hoping it is going, then the argument to support a total or partial ban becomes even stronger. If the trend line is flat or meaningless or does not give any indications, then the question will be asked: What is the purpose or what are the results of a partial or total advertising ban?

It would be important to have those figures and an analysis of them for our study of this bill.

Mr. Dingwall: We will try to provide that information. My predecessor did not have a total ban. He had a ban in certain aspects, but it was not a total ban across the board. I think you will find the figures rather revealing.

Senator Lynch-Staunton: The ban was strong enough that the Supreme Court found it offensive, particularly on the issue of sponsorships where you and he differ in approach.

Senator Beaudoin: Most bills, especially bills like this one, are accompanied by a certificate issued by the Minister of Justice stating that an examination of the proposed legislation complies with the Constitution and the Charter of Rights. Was such a certificate issued?

Mr. Dingwall: First of all, being such a novice at these kinds of items, I will have to check on whether a certificate was provided or not. All I can tell you is that the Minister of Justice and the Deputy Minister of Justice and their officials have approved the legislation and the drafting. The appropriate order in council to authorize that has been approved.

In addition, I sought out two outside legal counsels to do an examination to make sure that the constitutional validity of what we were proposing was within the ambit of the Supreme Court of Canada.

Senator Beaudoin: My second question is on the legal question, proper. You said in your statement that it is within the powers of the Parliament of Canada. With the decision of the Supreme Court in 1995, it seems obvious that the Parliament of Canada, in a case like this, may legislate under the competence of criminal law. Therefore, I do not see any problem there.

Second, I want to know what your position is regarding the Charter of Rights and Freedoms. Obviously, every day we are enacting laws and some of them may restrict freedom of expression. If we establish that it is reasonable in a free and democratic society, we may restrict freedom of expression. The Supreme Court decisions are clear on this.

Your position is that freedom of expression here obviously has some restrictions. However, in your opinion, that restriction may be reconciled with the principle of a society that is democratic. That is the difference between this bill and the other bill. The other bill was struck down by a decision of the Supreme Court. In drafting the present bill, obviously, the lawyers tried to gain from the conclusions reached by the Supreme Court in the previous case.

I understand that your proposition is that the freedom of expression may be restricted, but that restriction is respecting the principle of a free and democratic society.

Mr. Dingwall: I have two points, senator. You may recall that in developing our policy we were openly criticized by the media and antismoking groups for not moving quicker.

What we did painstakingly was to examine in its entirety, line by line, the decision of the Supreme Court of Canada so as to not make the same mistakes that had been made in the previous bill. Again, Justice McLachlin said:

...protecting Canadians from the risks associated with tobacco use...constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter.

She then went on to say:

...even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression.

What we have done in our legislation is apportioned a limitation of the right of freedom of expression, but we believe it to be a proper exercise of that.

One must remember the four Ps of any marketing strategy, particularly of some of the most sophisticated companies in the world, such as tobacco companies. They emphasizes four things: price, product, place, and promotion. We have tried to address those four things in a reasonable fashion in our legislation. We think we have done that by complying with the provisions of the Charter of Rights, which states that one can enact legislation, providing it is reasonable. I think section 2 makes reference to that, or it could be section 1. I concur with you.

Senator Lewis: I too would like to welcome you, Mr. Minister, to this hearing. I gather it is the first time you have appeared before a Senate committee, and I hope the experience is satisfying.

There seems to be a broad misconception among the public -- I have also received letters mentioning this point -- with respect to retail stores which employ clerks for the sale of their products, including tobacco products. There is a fear that they would be subject to penalty if the clerks were under age. I believe that to be a misconception because I do not see anything in the bill which places a restriction or prohibition on the possession of tobacco products. Perhaps you could straighten that little point out for us.

Mr. Dingwall: Senator, you are quite correct. This is my first appearance before a Senate committee. It is a rather interesting exercise, being the shy individual that I am.

I believe you are making reference to clause 8(1). There has been some speculation in the media and by different groups that we would ban young people operating as clerks in stores from selling different products. The answer to that question is an unequivocal no. We are not doing that at all and there is no intention to do that. What we are trying to do is convince the customer that they should not buy tobacco in the first place, so that is absolutely false.

Senator Doyle: Mr. Minister, I have two questions. You talked about a marketing strategy. One of the parts of any marketing strategy is the goal that you are attempting to reach, such as the number of things you want to produce or sell. You mentioned several times that the death rate at the moment is about 40,000 a year. What death rate are you aiming at? How much of a reduction do you expect in the next year or two before you have to say to yourself, "Well, we had better go back and change that to make it more effective so that it is not so drastic"?

Mr. Dingwall: With regard to the 40,000 deaths each and every year, I believe this figure comes from the Canadian Cancer Society. Notwithstanding that, it was a factor submitted at Trial Division when this went forward. It has been accepted as fact by the Supreme Court of Canada. It is not something that I or my officials have concocted.

Second, in terms of what would be successful and not successful, I think we cannot be successful until we see that number going from 40,000 down to zero. That certainly would be my intention as Minister of Health.

Senator Doyle: That brings me to my second question. Would it not be easier to get to your goal if you moved to have tobacco defined as a hazardous substance, as a narcotic, or as a noxious substance? That would start to tear away at some of these things. For example, we do not allow the open and unregulated sale of cocaine.

Mr. Dingwall: If any earlier government, regardless of its political persuasion, had known all of the facts that we know today, I do not think it would have allowed the sale of cigarettes. If we had this information 100 years ago, I do not think the product would be on the market at all.

Second, in terms of trying to make this an aspect of the Hazardous Products Act, I do not think it fits there. The sole purpose under the Hazardous Products Act is to make a product safe. I do not think you can make cigarettes safe. Cigarettes kill. That is the big distinction between cigarettes and alcohol. Alcohol kills too, but a cigarette is a lethal weapon. You are guaranteed of one thing: You will die if you smoke enough.

We do not think the Hazardous Products Act would be the appropriate place to put the product. We believe that the legislation we are bringing forward now addresses the concerns that I have as a health minister, and I think it addresses some of the concerns that you have raised as well.

Senator Nolin: Mr. Minister, I will address two areas. First, I wish to talk about the intent of your bill, which we all support. I totally agree with my colleague Senator Lynch-Staunton when he says that clause 4 of your bill is the important one. We all support clause 4. However, even with the words of Justice McLachlin from the Supreme Court, I want to know what you have to say to convince me of the link between this intent, which I support, and the inducement. How can sponsorship influence my 14-year-old son to start smoking? Try to convince me of that. If you are able to convince me, I will totally support your bill.

I am still puzzled with regard to the fact that Jacques Villeneuve wears a jacket with a Rothman's logo or a car logo on the back. If you see a problem with that, please tell me.

Mr. Dingwall: How old is your son, senator?

Senator Nolin: He is 14, and I have another son who is 13. They are very concerned by that because they hate smoking.

Mr. Dingwall: I think we have to remember a number of important factors. If I may, Madam Chair, I may be more longer-winded than normal. The media will get a kick out of that.

There is no single thing that one can identify in the decision-making process as being a certainty for a young person to start smoking. We are not dealing with the Girl Guides of Canada. We are dealing with the tobacco industry, which is one of the most sophisticated industries you will find anywhere in the world. They are comparable to the Pepsis, the Coca Colas and the Nikes. Their marketing strategy is to make certain that the environment is such that your 14-year-old son -- whether he sees it on a kiosk, on a hat or on a billboard -- thinks that it is cool and it is the okay thing to do. The reality is that we now have a situation in 1997, as Mr. Epp had to confront in the mid-eighties, where the environment has been polluted with misinformation and falsehoods about tobacco consumption. Young people today believe they are immune from the causes of tobacco consumption. They often say, "I am 14 or 15 years of age. I can smoke 10 cigarettes. I will not get addicted." Statistical surveys will tell you that, for those who start smoking between 14 and 17 years of age, there is a higher probability that they will continue smoking and eventually die from tobacco consumption.

The tobacco industries have been the most successful companies in creating an environment where everything is cool. It is not dependent on one element. That is why we confronted the four elements: the price, the product, the place, and the promotion. If your son sees Jacques Villeneuve or a particular billboard, will he run out immediately to buy a package of cigarettes and start smoking? I think the answer is obvious.

Senator Lynch-Staunton: What is the answer?

Mr. Dingwall: You know what the answer is, senator.

Senator Lynch-Staunton: No, I do not.

Mr. Dingwall: He probably will not. However, if you give that young person the whole mix of information -- that is, that it is cool and sexy to smoke and that the person will be immune from its effects -- tobacco consumption takes place. The tobacco industry is not trying to convince you or your senatorial colleagues to start smoking. That is not where their market lies. Their market is with young people. Each and every year, they need in excess of 100,000 new smokers in order to maintain their economic position. As the health minister, I think we must take action in order to try to prevent that.

Senator Nolin: You stated in your remarks that it is clear from the great weight of research in Canada and internationally that a combination of factors, including sponsorship promotion, contributes to the decision to smoke. We will no doubt hear witnesses who will probably say "yes" to that statement and witnesses who will say "no" to that statement.

You used the word "internationally". Have you examined what happened in France? I heard that they banned sponsorship, although apparently they still have the Grand Prix. Do you have any data or research that could help us in our deliberations?

Mr. Dingwall: Yes, I think we do. I am very much aware of the situation in France. I met with the Minister of Health in Paris. We discussed this issue and the situation in France.

In terms of the linkage, which is a crucial issue for all of us to reflect upon, let me cite a few things. The National Cancer Institute of Canada has said clearly that there is substantial evidence that young people are aware of and respond to cigarette advertising. We will provide this information to you.

The U.S. Food and Drug Administration has said that evidence from social psychology and marketing research shows that image-based advertising, such as that employed by the cigarette and smokeless tobacco industries, is particularly effective with young people and that the information conveyed by imagery is likely to be more significant to young people than information conveyed by other means of advertisement.

The American Psychological Association provided expert opinion and specific citation to numerous studies to show that tobacco advertising plays directly to the factors that are central to children and adolescents and thus plays an important role in their decision to use tobacco. I have a number of others things that I will leave with the committee as well. There is good evidence available which makes the link between advertising and tobacco consumption by young people.

Senator Nolin: Do you know if the consumption has decreased in France since the ban?

Mr. Dingwall: I do not have those figures with me but we could try to ascertain those for you. When I met with the Minister of Health from France, he told me that he had to endure the same sorts of suggestions <#0107> that is, that various sports and cultural groups would not be funded. In point of fact, that has not happened.

Senator Nolin: I wish to address the issue of vending machines. I refer more specifically to clause 12.

I understand that the first draft of your bill totally banned vending machines for cigarettes. The bill that has come to us from the House of Commons is a bit different. Could you explain to the committee why you accepted those changes in the House of Commons?

Mr. Dingwall: A number of provinces do have a total ban on cigarette vending machines. That has decreased substantially the access that young people have to cigarettes.

Evidence was adduced at the standing committee from the vending machine industry and they provided wording to us which we thought was reasonable under the circumstances, and it has been accepted.

Senator Nolin: This is important. You are saying that in the provinces where there is a ban on vending machines for cigarettes, there is a reduction in consumption of cigarettes. Is that correct?

Mr. Dingwall: That is the evidence of the provincial ministers of health who make the decision on banning those various machines in their respective provinces.

The Chair: For clarification, is there a decrease in consumption or access?

Mr. Dingwall: Access.

Senator Nolin: Of course, if there is no more vending, there is less access to the product. That is an important clarification. Do you have data showing that there is a decrease in consumption in those provinces?

Mr. Dingwall: Not at my fingertips, no.

Senator Nolin: If you have it, is it possible for your department to provide that?

Mr. Dingwall: Yes.

Senator Nolin: If I read clause 12 carefully, it states that you can have a vending machine outside a public area, or in an area such as a bar, if there is a proper mechanism in the vending machine. That is a little bit unfair because you are not banning the sale of cigarettes in grocery stores. If a convenience store sells cigarettes, that is all right, but if there is a cigarette machine in a restaurant -- not a bar -- it is not all right. Where is the fairness in that?

Mr. Dingwall: The intent of the clause is that where young people have easy access to a vending machine in a public area, that will assist them in their decision to buy cigarettes in the first instance.

In convenience stores, there is an intermediary: the seller. The seller is constrained by certain factors such as the age of the person in question. There is a distinction. Bars, taverns and beverage rooms are not normally, to my knowledge, patronized by 14-year-olds. That is the intent of the legislation.

Senator Nolin: What kind of mechanism are you referring to in the bill?

Mr. Dingwall: One of the reasons we accepted the recommendations of the vending industry is that we will have an opportunity to consult with them during the regulatory process to determine the best means to accomplish what is intended by that clause. They have some ideas on that which we will pursue with them after we bring forward regulations.

Senator Nolin: I have information that your department has already agreed to a type of mechanism with the industry. I have a copy of the letter from your department dated January 16, 1995. I understand that the mechanism is a remote control device. In order to have access to an operable vending machine, someone must click that control. Presumably, the possessor of the remote control will require young people to show identification. Why do you want this mechanism to be installed on vending machines in bars? Young people of that age will not be in bars.

Mr. Dingwall: There are some who will have easy access to those kinds of facilities. We have to be very concerned about access. There must be an intermediary.

Senator Nolin: May I table this document?

The Chair: You may indeed.

Senator Pearson: Thank you, Mr. Dingwall, for appearing here. Everyone is preoccupied with this issue. Many of us who have watched very close relatives die of illnesses caused directly by tobacco are totally in favour of the purposes of this bill.

My questions relate to young people taking up smoking. I believe I heard you say on the radio that the percentage of people over the age of 20 who take up smoking for the first time is very small.

Mr. Dingwall: Yes, I did say that.

Senator Pearson: Do you have a study on that?

Mr. Dingwall: Yes, we do.

Senator Pearson: I think that is probable, but I would be interested to have a copy of your study.

Mr. Dingwall: Our information is that past the age of 18 or 19, the incidence of people starting to smoke compares in no way to the incidence from the ages of 14 to 16. However, we have found, in addition to that, that youngsters are now starting to smoke at 10 and 11 years of age. That is a grade 4 or grade 5 student having a cigarette. When you ask young people, they all say, "No, no, I don't smoke," but the evidence is all around the school yards, the hockey arenas and the other places young people go.

Senator Pearson: In clause 4 of the bill, under "Purpose", you talk about enhancing public awareness of health hazards. That relates to labelling and so on. I suppose that in a bill of this sort it is not possible to include more proactive measures. We know that your department has a tobacco reducing strategy, but this particular problem has two dimensions. One is to reduce access; the second is to reduce demand. I have observed the reactions of many young people, including those of my own children. Of course advertising enhances their interest to start smoking, but that is not the only reason they start. There are other things happening with them.

This is not totally relevant to the bill, but I am concerned that as we discuss this bill we do not send them the message that we think that by taking tobacco away from them we will have addressed this other problem.

Mr. Dingwall: There are a number of questions there. First, you are correct that the package itself is a very important aspect of promoting the product and its consumption. We looked extensively at the possibility of moving to a generic type of packaging. However, at the end of the day, my decision, based on the best legal advice I could get, was that there would be legal problems in terms of the Charter, trademark and what have you. Therefore, we did not move on the idea of generic packaging.

The standing committee that examined this issue received no representations from the tobacco manufacturers. They failed to appear.

Generic packaging is not included. However, we have tried to provide on the package the facts as we now know them. As we obtain additional facts and information, we can require that they be included on the package as well.

We hope to be able to do a variety of more proactive types of advertisements, either on the package or associated with the package. It is interesting, however, that young people tell us, through focus groups and polling, that the best way to get young people to stop smoking is through peer pressure. Peer pressure is one of the reasons many young people start smoking in the first place. They do not want a 40-year-old man in a suit and tie telling them not to smoke. They would much prefer to hear one of their peers telling them the bad effects of tobacco smoking.

Therefore, we are going to embark upon a number of programs. In fact, we are already in the field working with young people. One of the best avenues for that is through music. That is why we have put emphasis on MuchMusic to try to get young people tuned in to the problems.

Senator Nolin: Is it possible for us to have the results of the polls you took and the executive summaries of them that were provided to you or your officials, please?

Mr. Dingwall: Yes.

Senator Milne: Minister, I am somewhat like Senator Pearson in that I watched my favourite uncle die of lung cancer. Therefore, I have a great deal of sympathy for anything that bans or will decrease the use of tobacco.

There has been a lot of discussion by various groups, the arts and the sports groups in particular, about tobacco sponsorships moving out of the country. If they move out of the country, where will they go? What other countries presently ban, in whole or in part, tobacco advertising? Have any of the tobacco companies actually uttered this threat? Have you or your department received anything to indicate that the tobacco companies are coming across with this threat?

You said that the tobacco companies need 100,000 new smokers every year to support the habit. I have some concern about that. I think it is quite clear that they need at least 44,000 new young smokers every year to replace the ones that are dying off at the other end of the age scale.

Mr. Dingwall: The world community is wrestling with the whole issue of tobacco consumption. Last year, at a meeting of the World Health Organization at which 193 countries were in attendance, a resolution in support of the countries who are attempting within their respective jurisdictions to try to limit as best they can, if not ban, tobacco advertising, was passed. It is a terrible health problem throughout the world. It is a major problem here in Canada. The direct cost to our health system is approximately $3.5 billion. This is something which both provincial and federal ministers of health must take seriously.

Other countries that have embarked upon restrictions include France, where there has been a total ban. The President of the United States has made it clear that as of August 1998 there will be a total ban in the United States as well. Of course, we in Canada have moved in conformity with the guidance of the Supreme Court of Canada.

I think I would mislead my colleagues here if I indicated to you that I have been approached by a tobacco company that has said explicitly, "If you do A, B or C, we are gone." However, a number of their appendages and groups they have sponsored have indicated in a very hostile way that if the legislation is not changed they will lose their money.

Quite frankly, that is a corporate decision that tobacco companies will have to make. However, they should keep in mind that Canadians have long memories. They are the same crowd that have said they sponsor cultural and sports events not to increase their profile within the community but to maintain a market share. We are not banning the substance at all; nor are we banning the sponsorship or the promotions. We are putting restrictions on them. It would be quite a contradiction on their part if they were to pull their support from these various events.

There may be other reasons which will enter into their corporate decision as to why they may or may not support a particular event. I recall for senators what du Maurier did. They made a decision to give up the sponsorship of the Canadian Open. Within a very short period of time, Bell Canada became the major sponsor of that event.

I have not had that kind of suggestion put before me as you have described, senator.

Senator Losier-Cool: I will probably repeat what Senator Pearson has said and what you have talked about, minister, in terms of reiterating the importance of education and prevention. In another meeting of our committee, members of student councils told us that students who have not started smoking in grade 9 probably will not start smoking. Young girls tell us that they smoke to enhance their self-esteem or to cut their appetite so that they will not gain weight. These are all values that I think could be enhanced in a good prevention program. They also told us how young children will convince their parents to stop smoking. They say, "I will not go in the car if you smoke." These are all positive approaches. When this bill is passed, I hope we can use the opportunity to put out a good prevention program.

Mr. Dingwall: I concur, senator. Education and prevention are very important. However, there is now an environment in the country, because of the success of the tobacco companies, which glamorizes tobacco consumption. Young people are its biggest victims. They have succumbed to that glorifying of smoking, whether to lose weight or look sexier or because it is the cool thing to do. The tobacco companies have been very successful.

As I said at the end of my statement, this particular piece of legislation is not the panacea. As legislators, we have to try to help moms and dads by limiting, as much as we possibly can, that environment that is out there. We have to demonize, if you will, the smoking habit, as opposed to allowing this glorification to go on. By doing that, in conjunction with educational and prevention programs, particularly those directed by young people for young people, I think we will be successful. It will be done in the hockey arenas and in the schools and the school yards. It will be done in gymnastics classes. That is where it will be done. However, we have to rid ourselves of the billboards and other means of glorification of the smoking habit.

Senator Gigantès: I am sure the very clever and successful businessmen who run the tobacco companies and who make big profits have not asked the distinguished constitutional expert Senator Beaudoin to allow the names of their products to appear on himself as he walks around. I am sure the same is true of a Nobel Prize winner like Dr. Polanyi; or the very distinguished, able and effective Leader of the Opposition, Senator Lynch-Staunton. They pick motor car racers and healthy, beautifully built young tennis players to do that. Why?

Mr. Dingwall: That goes back to the sophistication of the marketing capability of the companies in question. Nike looks at the price, the product, and the place to determine how they will tailor their promotion. With tobacco, it is the same thing. If the price is a little bit lower, then it is more accessible. If the product is advertised in a certain way, then it will hit its market. What they have done, consistently and persistently, is give this glorified perception that it is okay to smoke and nothing will happen. "Look, so-and-so is doing it." We see it in paraphernalia, whether it be hats, buttons, jackets or T-shirts. It is everywhere. Therefore, it must be cool, and young people say, "Fine, we will try it."

Senator Gigantès: The images they pick are images that attract young people. They pick a young race car driver who has a beautiful machine that he drives around and who is then embraced by girls when he wins. That seems to be the dream of young boys when testosterone prevails over blood in their veins. Is that not why they pick those images?

Mr. Dingwall: Senator, I am not an expert in this.

Senator Nolin: Neither is he.

Senator Gigantès: I died in 1990; this is a posthumous statement on my part.

Mr. Dingwall: I would like to take that question as notice. Perhaps Senator Nolin and I could have a consultation on it.

Senator Lynch-Staunton: Minister Dingwall, there seems to be one group of Canadians who have been neglected in this debate so far. That is the thousands and thousands of retailers, many of whom depend for their livelihood on the sale of cigarettes. According to the representations seen by you and others, that figure is up to 50 per cent in some cases. They will face additional costs to abide by the new display restrictions. They will need higher inventory since they cannot display more than one pack at a time. Also they will be losing the tobacco allowances to promote the cigarettes. I read somewhere that represents up to $60 million per year. There will be a negative economic impact on many innocent victims of this law.

I was wondering why they have not been given a phase-out period during which to adjust, in the same way that those who benefit from tobacco sponsorships have been given up to two years. It seems to me that those who can least afford the impact of this law are not being given any grace period or any phase-out period. Yet those who apparently benefit tremendously from tobacco sponsorships are being given two years.

There seems to be a contradiction there which benefits the richer and penalizes those who can least afford the effects of this law.

Mr. Dingwall: We may have to agree to disagree on certain provisions of the bill and the intent therein as it relates to retailers. We drafted the legislation in such a way as to ensure that, as a stakeholder, they will have ample opportunity to discuss with us the regulations that will affect them.

I cannot let this opportunity to act go by. I am the Minister of Health. There are $3.5 billion being paid each and every year by Jean Rochon in the province of Quebec, by Mr. Wilson in the province of Ontario, by Mr. Boudreau in the province of Nova Scotia in medicare costs. These are direct costs as a result of the consumption of tobacco.

Senator Lynch-Staunton: That is not the issue. We agree with all that. We are not questioning your figures. We are making sure that what you are doing here --

Mr. Dingwall: Madam Chair, I wonder if I could just finish? I do not want this to be an argumentative session but I --

Senator Lynch-Staunton: You are in your natural element when you are that way.

The Chair: Let the minister finish, please.

Mr. Dingwall: I do want to say to the senator that that is very important. That must override and must be more important than the concerns of the retailer or the organizers of a particular event. The health of Canadians must be first and foremost. The health of our children must be first and foremost. That is the intent behind this bill. We will do everything reasonable to work with those individuals. However, at the end of the day, if we are to put one against the other, I must stand on the side of health.

Senator Nolin: There is one question that the department officials cannot answer. Have you talked to Minister Rochon before or since tabling this piece of legislation?

Mr. Dingwall: Yes, I talked to him.

Senator Nolin: What were the contents of your discussion?

Mr. Dingwall: I am not at liberty to share with senators, or even with my colleagues in the House of Commons, discussions that I have with ministers of the Crown. I do not think that would be appropriate to reveal what he has said or what he has not said. I do not think that would be fair to him.

Senator Nolin: If Minister Rochon were to appear here, you would have no problem with him giving us the content of that discussion?

Mr. Dingwall: Not at all. You could ask the Ministers of Health from Ontario or British Columbia or Nova Scotia or New Brunswick. They all support this legislation.

Senator Nolin: Thank you.

The Chair: Thank you, Mr. Dingwall.

Mr. Dingwall is leaving; however, the rest of the panel will remain for further questions.

I have a question regarding education programs. I recognize that the bill itself does not address them. Like most other senators, I also have children. My eldest daughter, who is now 28, received no-smoking education programs in grades 4, 5, 6 and 7. My youngest daughter, who is 24, did not get a single no-smoking education program in the four years that she was in school in that same time frame.

It seemed at some period in time that we decided we had solved this problem, that we had convinced the kids that they should not smoke because they will get cancer, so we need not continue with this particular program because they had all bought into the fact that they will get lung cancer if they smoke.

Has there been any consultation between the Department of Health and the education departments of the provinces to find out just what is going on in terms of school programs that discourage young people, through using peers and older young people who have taken it up and have given it up, or through using physicians?

I know, for example, that in the object lesson which most impressed my eldest daughter, she was shown three different lungs, one which had never seen a cigarette, one which had seen a number of cigarettes and one which was the result of a death by cancer. She came home convinced that day that she simply was not going to take up cigarettes. What can you tell us about this?

Mr. André Juneau, Assistant Deputy Minister, Policy and Consultation Branch, Health Canada: Since Senator Nolin and the minister talked about their children, I will mention that my 23-year-old son did get lots of education about smoking in Ontario. That suggests that the programs, perhaps unfortunately, vary from province to province.

We have been talking naturally to our counterparts in the provinces on a regular basis. They, in turn, have been talking with their educational authorities. In addition, we have a wide range of contacts with non-governmental organizations, national, regional, and local, who are deeply involved with various programs, many of them school-based.

Senator Lynch-Staunton: My question relates to clauses 36 and 39. Clause 36 will allow, except in the case of a dwelling place, an inspector to enter premises and to inspect without a warrant. That obviously makes sense since it is a commercial establishment and is open to the public.

Clause 39(1) says:

During an inspection under this Act, an inspector may seize any tobacco product or other thing by means of which or in relation to which the inspector believes on reasonable grounds that this Act has been contravened.

I see no requirement there for a warrant for that seizure. Am I correct?

Mr. Chris McNaught, Counsel, Legal Services, Health Canada: I would never want to say that the senator was wrong.

Senator Lynch-Staunton: But I hope I am wrong.

Mr. McNaught: With respect, the legal interpretation of that particular provision, senator, is within the context of all the provisions in this part respecting so-called search and seizure. That means it is being carried on in an administrative mode only. Where, for example, as you just indicated, senator, they see something that they believe, on reasonable grounds, has contravened the act, the perceived contravention does not necessitate prosecution. That is not an automatic follow-up. It is a seizure or a determination of contravention which is in relation to the administrative or non-prosecutorial functions of the regulator under its mandate.

In that sense, the Supreme Court has clearly set out which lines must not be crossed by regulating authorities when carrying out their inspection duties. For example, in food- or public-health-related statutes -- I think you yourself mentioned this, senator -- there is a level of expectation of privacy that goes with the territory. In other words, if you are dealing with food that may be contaminated, then the Supreme Court has recognized that the enforcement authority should have requisite administrative authority simply to seize, forfeit, or destroy, or to do whatever the mandated activity requires.

However, wherever prosecution is contemplated -- or quasi-criminal proceedings, as people sometimes refer to them in this area -- in other words, where the process is evidence-gathering with a view to laying charges, then the Criminal Code and the associated criminal law requires that the enforcement authority have a warrant. That type of requirement in the criminal mode, senator, is always there and does not need to be expressed explicitly in the bill. Therefore, everything that is stated here, subject to the provision that a warrant is necessary from a justice of the peace to go into a dwelling place where there is no consent of the owner, is concerned entirely with the administrative mode of inspection. It has nothing to do with prosecution.

Senator Lynch-Staunton: In the case of a seizure of contaminated or unhealthy food, there is usually a charge made for contravening whatever health code or act may be in force in that particular jurisdiction. I do not see anything here where, following the seizure of a tobacco product or a related good, the Crown need pursue it. As I read it now -- and I want you to tell me if I am wrong -- it seems that the one from whom the goods are seized must make application to the judge for the retrieval of his goods. The onus is on the one from whom the goods have been taken to make application that he should have them back rather than on the inspector who seized them to then follow the normal procedure, which would be to lay a charge because there has been a contravention of the act.

Mr. McNaught: In an imperfect world, senator, I believe we are both correct, with respect. In other words, there is some onus on the person from whom the goods were seized. The person subject to the regulation has some sort of obligation upon them if they want to get their goods back. Nevertheless, there is a process expressed in the act for them to recover their goods. They can make an application for restoration, and certainly their goods so seized cannot be forfeited absolutely without an order of the court. There is still that residual judicial consideration of the matter. There is, to be realistic, an annoyance factor; nevertheless, the court still can review and consider the matter. It is not just a hijacking of the retailers' goods.

Senator Lynch-Staunton: I do not think the word "hijacking" is too strong, because an inspector could, on his own, decide that some section of the act, should it pass, is being contravened and he could seize everything and cut into a basic part of the livelihood of the retailer and take the goods away and put them in storage. All the retailer would get is a notice saying, "I have seized your goods. If you want them back, here is the law." I find that to be the strongest reverse-onus provision I have yet to see. There is another reverse-onus provision here which we have seen elsewhere, but this one, if it is categorized as such, certainly takes away the presumption of innocence to a dangerous degree.

Mr. McNaught: The presumption of innocence, of course, is a phrase or concept or principle that relates to prosecution, and this situation does not address prosecution. I would suggest that your very understandable concern is focusing on some type of discretionary abuse by the enforcement authorities. In that regard, whether it is administrative or criminal, it is still subject to court review. It is one thing for the government to set out in its legislation the permissible ambit of inspectors' duties and their mandated functions and so on. It is another where an individual may abuse it or improperly exercise their discretion, and, of course, there are numerous provisions in the law for a review of that type of activity.

Senator Lynch-Staunton: You have not convinced me, although I appreciate your explanation. The court review will only take place if the one from whom the goods are seized asks for it. There is no obligation on the inspector to force a court review and to prove in court that what he did was satisfactory. It is up to the retailer. If he does not follow a procedure within 60 days, he can lose all his goods.

I think I made the point, and hopefully we will be able to get into that with other experts to come. I thank you for your explanations. They have been very helpful.


Senator Nolin: Mr. Juneau, as for the reasons that compel young people to take up smoking, Mr. Dingwall referred to different alternative solutions, such as plain packaging. At the end of his presentation, he mentioned the price issue. I understood that the price does influence young people. If the price is low, then the product is more accessible to them; however, if the price is higher, there is less of an incentive to take up smoking. Have you examined alternatives such as increasing prices or raising taxes?

Mr. Juneau: Yes, this is one option that we have looked at. You will also recall that the Minister of Finance, as well as some of his provincial counterparts, announced a price increase a short while ago.

Senator Nolin: Mr. Dingwall mentioned how young people are influenced by cigarette prices. At what price do cigarettes become less attractive? Are the tobacco taxes announced by the Minister of Finance high enough?

Mr. Juneau: I understand your question a little better. Yes, we have examined this issue. It does not lend itself to easy conclusions. However, we know that young people are more vulnerable when prices are lower. We know that they are more sensitive to a price increase than adults. What we cannot say for certain is at which point the price becomes high enough to dissuade people in a certain age group or with a certain income from smoking. Studies conducted by economists on price elasticity are not that accurate. Studies have been done which show that young people are affected by price fluctuations.

Senator Nolin: Two years ago, the Minister of Finance drastically cut taxes and the excise duty on cigarettes. Do you have any data showing how this decision affected cigarette consumption?

Mr. Juneau: We recall the precise moment the tax cut came into effect, that is in February 1994.

Senator Nolin: That was three years ago.

Mr. Juneau: That is correct. We surveyed a sample group of young people at the time and conducted four more such surveys in the following year and reviewed the results of previous years' surveys. We can share our findings with committee members. However, we must caution you that it is not always easy to gauge the impact that different factors have. We attempted to do this, but we cannot be certain of the exact reasons for the higher levels of tobacco consumption. Young people are influenced by a host of factors. However, we will be happy to share our findings with you.

Senator Nolin: Clearly, the information or data gleaned from these surveys was not conclusive enough to serve as measures for curbing tobacco consumption?

Mr. Juneau: I am not certain that I understand your question.

Senator Nolin: Did you seriously consider this option? Was the decision on the part of the finance minister to increase taxes merely a tax grab or a reflection of the government's or minister's desire to curb tobacco consumption by young people?

Mr. Juneau: I do not have the data with me, but when the last increase was announced, both the Minister of Finance and the Minister of Health, Mr. Dingwall, indicated that this increase was consistent with the government's tobacco consumption reduction strategy.


Senator Beaudoin: My question is for the legal advisor. It is about clause 60. The minister may enter into equivalency agreements with the province where there are in force under the laws of that province provisions equivalent to the provisions of this bill. I find that very interesting.

My question is very simple. This statute is in both languages because it is a federal statute. However, if you enter into an agreement with a province that is not subject to bilingualism at the provincial level, will you enter into the agreement in both official languages? I presume you will, but I am just asking the question.

Mr. McNaught: With respect, senator, that may be less a legal question than a policy question. I might defer to Mr. Juneau on that, but I am prepared to answer other legal aspects of your question.

Senator Beaudoin: It may be a legal question because it is taking the place of the federal statute.


Mr. Juneau: You're asking if agreements concluded with the provinces are drafted in both official languages?

Senator Beaudoin: Yes.

Mr. Juneau: From my experience, I would answer yes. In the past, I have had occasion to enter into agreements with the provinces or to advise ministers on this matter. Whether we were dealing with Quebec or with other provinces, federal agreements were always drafted in both official languages.

Senator Beaudoin: I would hope so, because these take the place of a federal statute. Since statutes are drafted in both official languages, it would seem to me that anything that purports to take their place should also be in both official languages.

Senator Gigantès: Are you saying that if Quebec were to enter into a similar agreement with the federal government, its billboards warning against tobacco consumption should be in both official languages?

Mr. Juneau: The agreements mentioned in the clause to which Senator Beaudoin referred have to do with the sharing of inspection duties. I do not think they have anything to do with notices banning the sale of tobacco.

Senator Gigantès: No? I see.


Senator Lynch-Staunton: My question relates to sponsorships. I have difficulty understanding the reasoning behind this. If the limitation of tobacco sponsorships in clause 71 is part and parcel of an overall approach to the advertising, marketing and promotion of tobacco products, why did the government agree to delay that part for two years? I interpret that as meaning that the promotion of tobacco products by sponsorship is not crucial in someone determining to take up smoking. We can let it ride for a couple of years and hope everything sorts itself out. I would have been more impressed had the government stuck to its guns and said no, all that we have now before us in its original form stays. I was quite surprised that the government allowed this portion -- not that I disagree with it -- to be weakened and delayed two years. I would like to know why that was done.

Mr. Juneau: I am sorry you did not ask that question of the minister.

Senator Lynch-Staunton: That is why he ran away, I guess. He knew I was coming to it.

Mr. Juneau: I will let senators draw their own conclusions on that observation.

Senator Doyle: To each his own.

Mr. Juneau: I think it is question, as I said, that should have been asked of the minister. From a technical point of view, the question you raise is: If it is serious enough, why not have it come into force right away? You know as well as anyone else what concerns were expressed about the coming into force of this clause of the bill, particularly by event organizers in the Montreal area. The only answer I can give you is that an implementation period running to October 1998 is reasonable in the circumstances and does not detract from the main purpose of the bill.

Senator Lynch-Staunton: I did not want to put you on the spot because, obviously by your careful answer, it is a political decision and the minister should be the one to answer it.

In your studies on the impact of sponsorships -- and I am not trying to be smart here -- I would like to know whether Du Maurier lost sales when they gave up golf and whether Bell Canada increased sales. I would like to know if Labatt Breweries increased their sales because of the Labatt Brier. I would like to know if Honda sells more cars because of the Honda Classic. I could go on and on. Let us consider the Molson Centre or the O'Keefe Centre. I want to know how identifying any product with any event or any building sparks one's interest in that product to the extent that they will introduce themselves to it. This seems to be the main argument we are given in favour of limiting tobacco sponsorships to such an extent that some companies tell us, rightly or wrongly, that they will get a smaller return on a sponsorship than they are getting now. The government's answer seems to be that this will help in our program to reduce smoking and particularly encourage the young not to take it up. I fail to see where having "Du Maurier" on a sign or an event or on the back of a ticket will incite someone to do what we do not want them to do, whether we are talking about cigarettes, beer, telephones or whatever.

Mr. Juneau: A number of data elements are relevant to your question, as well as a number of other points.

In the surveys we have done of young people, we found that Canadians aged 10 to 19 who smoke tend to be most aware of the three to five brands of cigarettes that are most heavily promoted. There seems to be a connection between what brands are promoted in one form or another and what brands children or young people smoke.

As well, we have done surveys to see the extent to which children or young people can identify brand names without having the brand name mentioned to them. We show them the logo and ask them to identify the brand name, and they can. We have also done surveys which show that young people believe that sponsorship promotion is a form of advertising.

Those are elements of an answer to your question, senator.

We do not know the answer to the first part of your question, namely, to what extent sales of certain companies have gone up as a result of their promotion. I do not believe they have shared that data with us, but you may want to ask them if they appear here.

It is difficult for us to understand why one would be in the sponsorship promotion business if it was not designed somehow or other to advance the commercial interests of the firms in question, just as other firms engage in comparable marketing techniques.

Senator Lynch-Staunton: I will pursue that line of questioning. My feeling so far is that you do not take up smoking because you see Gilles Villeneuve with a Rothman's logo on his chest. You smoke Rothman's because you are already smoking and Gilles Villeneuve is sponsoring it.

I would like to refer all of you in the department to testimony given yesterday before the Standing Senate Committee on Social Affairs, Science and Technology which was looking at Senator Haidasz's bill. A number of students there said that smoking actually started, in many cases, between the ages of 8 and 11 and that much of the influence was the attraction of cigarette ads in the background in movies and on television, or seeing some of their favourite stars smoking. The question is a very complex one, and just picking on one element without looking at the overall influence that leads young people to smoke may unfortunately lead us beside the mark in our attempts to control that.

Mr. Juneau: With respect, senator, I think that is somewhat unfair. The minister in his statement, and the material that the department has put out, made it very clear that we do not believe that a single element causes young people to start smoking. The minister was absolutely explicit on his understanding and his analysis of the decision to smoke and the factors that enter into it.

You will recall that one of his points in closing was that he hopes that by passing this legislation, which touches on sponsorship, advertising, access, and labelling, Parliament will assist parents in their job. With the greatest of respect, we have never claimed that sponsorship was the only factor or even the main factor. We believe that it is part of the total environment that incites young people to smoke, and we think it ought to be restricted.

The Chair: I thank the witnesses for remaining after the minister. I understand we may hear from you again at the end of our witness list, and we look forward to seeing you at that time.

Senators, tomorrow we will hear Professor Gall from the Faculty of Law at the University of Alberta and Professor Lessard from the Faculty of Law at the University of Victoria. They have been asked to set the constitutional stage for us. You will remember that we did this with two professors on the issue of Term 17. We asked them to go through the constitutional processes and to put before us the questions they thought we should be asking. We have decided to do the same thing in setting the stage tomorrow in terms of the constitutional questions that should be asked to make sure that in our view the bill meets those constitutional tests. I look forward to seeing you all tomorrow morning at 10:30.

The committee adjourned.