Proceedings of the Standing Senate Committee on Legal and
Issue 53 - Evidence - Morning Sitting
OTTAWA, Wednesday, April 2, 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 8:37 a.m. to give consideration to the
Senator Sharon Carstairs (Chair) in the Chair.
The Chair: Good morning, senators. We are continuing our study of Bill C-71. We
have a number of witnesses this morning. I understand we are to begin with Mr.
Mr. Germain Ducharme, President, Office des producteurs de tabac jaune du Québec:
The Office des producteurs de tabac jaune du Québec is pleased to appear
before the Senate committee examining Bill C-71.
We wish to share with you our concerns about three aspects of this bill which
affect Quebec's flue-cured tobacco growers in particular.
The first point in need of clarification is the hiring of young persons under
the age of 18 to work on tobacco farms during the summer. The bill is quite
vague on this subject. We want to know if it will be legal for minors to work
on a tobacco farm?
For Quebec's tobacco farmers, young persons under the age of 18 represent a
sizeable pool of workers. No fewer than 500 young people from our region go to
work every year in the tobacco fields. The wages they earn are among the
highest in the agricultural industry, quite a bit higher as a rule than the
minimum wage. Most young workers earn enough money to cover their school-related
expenses. Through their work, they make a significant economic contribution to
their families and to society. Furthermore, it would be completely ridiculous
if the sons and daughters of tobacco farmers were unable to work on the family
farm because of this bill. It is at this point in their lives that young
persons learn to work as a team, to assume some responsibility and to adjust to
a work schedule. The experience they gain will prepare them to meet the
obstacles that lie ahead for them as adults. If we can no longer rely on this
affordable pool of labour, we will have no other alternative but to use foreign
For all of these reasons, we would like to see the bill amended so that it is
clear on whether or not tobacco farmers can hire persons under the age of 18 to
work in this industry.
The second point which concerns us is the role of the inspector as spelled out
in Part V of the bill. For the purposes of this act, the minister may designate
any person or class of persons as an inspector or analyst.
Who are these persons who may arrive without warning to search our farm storage
facilities, believing they have so-called reasonable grounds to do so?
Do you not find their mandate somewhat broad? What is the meaning of the word "reasonable"?
This appears to be an abuse of power. We truly do not see the need for this
because all of the products that we use are already closely regulated by
Agriculture Canada. We are not tobacco manufacturers, but rather tobacco
growers. We would like the tobacco bales stored on the farm to be exempted from
the inspection provisions set out in the Act.
The third point which concerns us is the tobacco advertising found in magazines
imported into Canada. It is alarming for Canadian farmers to realize that
Canadian smokers will not be exposed to Canadian tobacco products. Eventually,
consumers may be influenced by what they see advertised in the imported
magazines and chose foreign products at the expense of Canadian ones. This
phenomenon poses a major threat to Canadian tobacco growers and will result in
substantial losses for governments and growers alike.
As far as Bill C-71 is concerned, the Office endorses the objective of this
bill, which is to restrict tobacco consumption by persons under the age of 18.
This is a laudable objective. However, we seriously doubt the effectiveness of
this bill as a means for the government to achieve its objectives. There is
nothing in this legislation that will prevent more young people from taking up
smoking in the first place. The new restrictions introduced on such things as
the sponsorship of sporting and other events, advertising, product display, the
number of cigarettes per package, the regulatory process, labelling and
packaging will not have any positive effect whatsoever on the smoking habits of
Any new prohibitions on smoking will have just the opposite effect. You were
young yourselves once and you know how attractive forbidden fruit can be to
For years now, people have been receiving enough information about the dangers
of smoking to decide for themselves whether or not to smoke. Legislation is
increasingly regulating our lives and telling us what we can and cannot do. Is
this what democracy is all about?
Tobacco is a legal product and should be treated as such. The proposed
legislation is a shot in the dark and will not achieve its objective. All it
will do is create economic problems.
Mr. Michel Gadbois, Chief Executive Officer, Association des détaillants
en alimentation du Québec: Madam Chair, I will be happy to answer your
questions in English, but I will be delivering my presentation in French.
I represent the Association des détaillants en alimentation du Québec
and I am here today on behalf of Alimentation Couche-tard, a chain of outlets
that are members of the ADA. Alimentation Couche-tard operates 310 retail
outlets in Quebec, employs approximately 2,000 people and records sales of
about $400 million. The company has been in business for 17 years. Tobacco sales
account on average for 27 per cent of all corner store sales.
Why are we here representing Alimentation Couche-tard? As you know, this company
was actively involved in the fight to end tobacco smuggling in 1991. You may
recall the efforts made by the association and by Alimentation Couche-tard in
Quebec. On issues involving the government, the ADA makes representations and
states its position. We have tabled a brief and our position is backed by
10,000 food retailers in Quebec. In fact, if we include retailers and their
families, a total of 500,000 people and businesses in Quebec are affected. We
are talking about 85,000 direct jobs. The retail sector generates approximately
$2 billion for the Quebec economy and $1.2 billion in revenues for the various
levels of government, including revenues from tobacco taxes.
We wish to focus today on the specific elements of the current regulations which
affect our commercial operations. We do not wish to pass judgment on smoking or
on the effectiveness or ineffectiveness of the proposed measures. We want to
stress the commercial and practical implications of the legislation and the
economic impact it will have on our businesses.
In our submission, we identified a number of provisions which we would like to
see either amended or repealed. We would also like to zero in on the fact that
the various provisions in the bill assign considerable responsibility to
In my opinion, from a constitutional stand point, it is the secondary activity
rather than the product itself that is being targeted here. Later on, I will
refer to a decision which states that considerable attention is being paid to
the promotion or to the promotional aspect of a product which technically is
legal. The objective appears to be to make secondary activities, that is those
associated with the marketing of this product, illegal.
We have two main concerns. First, there is the fact that responsibility for
monitoring the age of minors is not shared by anyone else in Quebec and in
Canada. I will refer to certain clauses in a few moments, but only the retailer
is subject to a fine and held responsible for the sale of tobacco products to
minors. That is the first thing I wanted to bring to your attention,
specifically clause 8 of the bill.
Our second concern is the extent of the responsibility borne by retailers in
terms of promoting tobacco products in their store. From our interpretation of
these provisions, we note that retailers are directly responsible for any
advertising on their premises as well as for the packaging of the product in
their stores. You can understand why we are concerned about the level of
responsibility that retailers are being asked to shoulder.
Senator Nolin: Exactly which regulations are you referring to?
Mr. Gadbois: Those in the bill.
Senator Nolin: Are you talking about the text of the bill?
Mr. Gadbois: I am simply referring to the clauses.
Senator Nolin: This bill will give rise to a number of regulations, but since it
has yet to be passed, there are no regulations currently in force.
Mr. Gadbois: I understand. I have to say that these clauses as they are now
written are already quite clear insofar as the responsibility of retailers is
concerned, even without any future regulations.
Senator Nolin: We understand one another. I simply wanted to clarify that point.
Mr. Gadbois: We raise a number of issues in our brief. The first is the problem
of the sole responsibility placed upon the retailer in clause 8. The retailer
alone is responsible for assessing the age of the person purchasing the
cigarettes, not the parents or the police. It is still quite legal to purchase
cigarettes for minors. There is nothing that prohibits this.
We are faced with a rather odd situation because even the youth protection
service which works with young persons supplies a daily quota of cigarettes to
Quebec minors. This is an indication of just how ridiculous the situation has
become across the country.
Quebec has clear legislation on the books regarding alcohol. We are prohibited
from selling alcohol to minors, as you well know, but it is also against the
law for minors to purchase, possess or consume alcohol. That is not the case
with cigarettes. It is much easier for us to monitor the age of people buying
alcohol. The buyer himself knows that he can be charged and fined. That is not
the case with cigarettes.
We the retailers are being made to shoulder all of the responsibility. The
penalties can be substantial, ranging from fines of up to $25,000 to the
suspension of our retail licence. That could put us out of business.
Another concern that we have about clause 8 of the bill is the documentation or
identity required. In most cases, people produce their health insurance card or
their driver's licence as proof of their identity and in the case of minors,
this may be difficult because they do not always have a driver's licence. It is
illegal for us to demand one of these cards as proof of a person's identity. We
could be fined for doing so because driver's licences can only be used for
identification purposes in the case of roadside checks or when requested by
highway safety officials. This is quite clear in the Quebec legislation
governing drivers licences. The same is true of health insurance cards. No one
can ask to see a health insurance card for identification purposes, unless that
person is in the business of providing health benefits. We are penalized if we
do not request identification, but at the same time, we can be fined for
A parliamentary committee in Quebec is currently examining the issue of I.D.
cards. You have received a copy of the brief that we presented to this
particular parliamentary committee expressing our support for such an
initiative. Right now, we are in a Catch-22 situation. It is not illegal for
young persons to purchase, consume or possess cigarettes, as is the case with
alcohol, but at the same time, we are prohibited by law from asking for this
type of identification. You can see the dilemma. Therefore, we ask that clause
8 of the bill be amended.
We are also concerned about in-store advertising. Some of the provisions in the
bill are incredibly absurd. With respect to pipe tobacco, for example, it would
be illegal to sell a pipe tamper bearing the Dunhill logo. I am sorry, but no
one else makes pipe tampers. From a marketing standpoint, some of these
provisions are totally ludicrous.
In so far as responsibility for tobacco promotion is concerned, we ask that the
word "retailer" be removed from this provision. The retailer should
not be held responsible for products supplied to him by recognized Canadian
manufacturers, regardless of any decisions that have been made as to what does
or does not constitute legal promotion. However, if ever a tobacco censorship
board or committee is created -- we have a film censorship board, so why not
have one for tobacco -- obviously we would like to be involved simply to let
you know what is logical and what is not.
We subscribe to a basic principle: the customer entering our premises to
purchase a tobacco product has already made up his mind to smoke. He only comes
into the store to select a particular brand. Basically, the message that I am
trying to get across is that retailers should not be penalized to the same
extent as the manufacturers who produce the promotional material displayed in
our stores. Since this material is supplied to us by manufacturers who are
recognized by the Government of Canada, there is no reason why this material
should not be on display. Imagine how complicated it would be to monitor every
On the subject of responsibility, our final comment concerns in-store
inspections, similar to those targeting flue-cured tobacco farmers. The
legislation would allow inspectors to enter and search our retail premises
without a mandate and without authorization from a higher level. A significant
number of inspectors already come through our stores. We are responsible for the
safety of the food we sell. However, if a product comes to us from a reputable
manufacturer, we cannot be held responsible for it. We purchase the product in
good faith. Here again, the retailer should not be held accountable. We do not
object to general inspections, given our problems with cigarette smuggling, and
we are quite happy to see inspectors do their job. It is quite easy to look for
a government seal. In Canada, a cigarette package or carton cannot be sold if
it does not bear a seal. The presence of a seal indicates that the tax has been
paid and that the product has been registered in Canada.
There are already enough control mechanisms built into the system. We do not
need to hear that we will be held responsible to the same extent as the
manufacturer if a problem arises with a tobacco product. When we purchase a
product, we do so in good faith. That concludes our presentation. Other
questions will certainly arise as to the practical impact of the legislation.
The government must not shift its responsibilities on to someone else's
shoulders. It must stop looking to the retailer and claiming that his job is to
be a government tax collector, inspector and police force all rolled into one.
Our mission in life is to sell products quickly to our customers and to do our
job well. That is what really matters to our customers and what saves our jobs.
If retailers were forced to bear all of the responsibility each time new
measures were introduced, their businesses would not survive. They will end up
having to spend the better part of their time on accounting and police work for
Professor Wayne Renke, Faculty of Law, University of Alberta: Honourable
senators, I am grateful for the opportunity to speak with you today, and I hope
that I shall be of some small assistance. I shall be directing my remarks at
two main sets of issues concerning Bill C-71. The first issue relates to the
presumption of innocence protected under section 11(d) of the Charter, and the
second issue relates to the right to be secure against unreasonable search and
seizure, protected under section 8 of the Charter. I have submitted a brief
which will amplify many of the points I will be making this morning and which
will also address matters that I will not have an opportunity to deal with in my
I will preface my remarks by pointing out the centrality of context to an
assessment of the constitutionality of Bill C-71, the proposed Tobacco Act, as
I will be referring to it.
Context is relevant to the determination of the scope of Charter rights and to
the justifiability of infringements of those rights by legislation. You might
ask why context ought to matter. You might say that a prosecution is a
prosecution, a search is a search, the state should interfere with us as little
as possible, and the Charter should protect us all equally from state
The basic rejoinder to this position is that participants in a heavily regulated
industry, like the tobacco industry, have a different relationship with the
state than those outside such industries. Ordinary activities, one might say,
are presumptively harmless until the state proves otherwise. Activities of the
tobacco industry, given the legislation and the findings of the Supreme Court of
Canada, are presumptively dangerous. Therefore, significant state involvement
with industry processes is required. The state must be present with tobacco
industry participants at all industrial stages, from manufacture through sales.
The state is not external to the tobacco industry; it is intimately bound up
with its operations. This suggests that, as a general principle, we should not
use the Charter to hold off the state from tobacco industry processes as we
would hold off the state from our private lives.
With this context in mind, I turn to the provisions of this bill that may
threaten the presumption of innocence.
The presumption of innocence is a fundamental legal right -- perhaps the
fundamental legal right. It entails that persons may be convicted of offences
only if the prosecution establishes guilt beyond a reasonable doubt. An accused
is entitled to an acquittal if, on all of the evidence, there is a reasonable
doubt respecting guilt.
Now, subclause 53(2) of Bill C-71 gives rise to some serious concerns relating
to paragraph 11(d) of the Charter. Subclause 53(2) imposes on an accused the
burden of proving that an exception, exemption, excuse or qualification
operates in the accused's favour. This provision is internally limited in that
it applies only to what might be called special statutory or regulatory defences
and not to general defences available to all accused.
Subclause 53(2) does, however, require an accused to prove a special defence on
a balance of probabilities. Ordinarily, an accused, absent a provision such as
subclause 53(2), would only be required to raise a reasonable doubt or would
only have to point to evidence raising a reasonable doubt to be acquitted. It
is fairly clear that subclause 53(2) appears to allow conviction despite the
existence of a reasonable doubt. It therefore appears to violate the presumption
Context does not dictate any diminution of an accused's right to be presumed
innocent in prosecutions under this bill. The bill sets out some very serious
penalties, as high as a maximum fine of $300,000 and two years' imprisonment
for certain offences. I should add that these fines and the possibility of
imprisonment are as high or higher than penal provisions relating to what might
be termed true crimes. I should also note that Chief Justice Lamer has
indicated that imprisonment is imprisonment whether it is imposed under a
regulatory statute or under a statute that creates a true crime.
The bill also relies fairly heavily on summary conviction offences and hybrid
offences. This might not seem significant but what this tactic does is deny
accuseds trial by jury, as well as trial in superior court and preliminary
inquiries in provincial court. Given the serious penalties that accuseds face
under this bill and the lack of procedural protection since summary conviction
procedures are relied upon, evidential protection such as the burden of proof
ought to be maintained in order to compensate.
I should note that there are some cases, even as high as the Supreme Court, that
hold that provisions similar to subclause 53(2) do not violate the presumption
of innocence; however, if these cases are right, they should be confined to
their special facts. We do have other indications from the Supreme Court that
are supportive of this argument.
If subclause 53(2) does infringe the presumption of innocence, it cannot be
sustained under section 1 mainly because it does not involve a minimal
impairment of an accused's rights. There are equally effective ways of allowing
an accused to establish special defences. In particular, an accused could be
allowed to point to evidence raising a reasonable doubt as to whether a special
defence is available. If it is available, the Crown could then rebut the
availability of the defence on its normal standard of "beyond a reasonable
doubt". In my view, the simplest way to correct the difficulties arising
from subclause 53(2) is simply to eliminate it from the bill.
Subclause 8(2) and clause 54 of the bill also impose burdens of proof on the
accused to establish defences on a balance of probabilities. I should note that
subclause (2) of clause 8 is not felicitously drafted. It has lost its
connection to the defence of mistake of fact, which it was presumably designed
to particularize. I should also note that there appears to be a typographical
error in clause 54 of the bill. There is superfluous language which is
confusing and ought to be eliminated.
On the last page of my brief, I have summarized my recommendations relating to
amendments to the bill, subclause 8(2) and clause 54 in particular.
Both subclause 8(2) and clause 54 violate the presumption of innocence. Both
allow for the conviction of an accused despite the existence of a reasonable
doubt. I suspect, though, that both provisions will be justified or could be
justified under the Charter given an accused's special knowledge of the
pertinent circumstances and the prosecution's lack of knowledge of those
circumstances. Moreover, there is some Supreme Court authority recognizing the
constitutionality of strict liability in regulatory statute contexts, which
appears to be the context in which we find subclause 8(2) and clause 54.
The forfeiture provisions of the Tobacco Bill involve a definite allocation of a
burden of proof to persons from whom goods have been seized. I should note that
the Tobacco Bill marks a conceptual shift from the forfeiture provisions of the
Tobacco Products Control Act. Under the Tobacco Products Control Act, the state
had to take positive steps to initiate forfeiture. Under the current proposals,
owners or persons from whom goods have been seized must take positive steps to
avoid automatic forfeiture. A person from whom goods have been seized has 60
days from the date of seizure to commence proceedings to preserve his or her
rights. The owner bears the burden of establishing entitlement to goods in
Comparable provisions in the Narcotic Control Act have been reviewed by the
Supreme Court, although under the Canadian Bill of Rights and not the Charter.
Under the Canadian Bill of Rights, the court did not find these provisions
comparable to the proposed forfeiture provisions of the Tobacco Bill. The court
did not find these provisions to violate the presumption of innocence, at least
so long as the only burden imposed on the owner was to establish civil
possessory rights to the goods.
Under the proposed forfeiture provisions, which again do provide for automatic
forfeiture in some cases, the burden appears to establish simple possessory
rights. Given the Supreme Court's indications on this issue, it is likely that
the forfeiture provisions will survive Charter challenge.
I shall now turn to issues relating to search and seizure.
Under section 8 of the Charter, everyone has a right to be secure against
unreasonable search or seizure. Context is vital in assessing the scope of
section 8 rights. There is ample authority supporting the position that
participants in heavily regulated industries, like the tobacco industry, have a
reduced expectation of privacy respecting their business activities and
premises. Nonetheless, participants in the tobacco industry still have rights
to be secure against unreasonable search and seizure.
The Hunter v. Southam case established that the reasonableness standard under
section 8 ordinarily requires search and seizure legislation to satisfy three
main criteria. The search and seizure must have received prior authorization,
typically through the issuance of a warrant; the authorization must have been
granted by a person acting in a judicial capacity possessed of the requisite
independence and discretion; and the authorization must have been based on
information provided on oath, establishing reasonable grounds for believing
that the place to be searched contained evidence relative to an offence.
The proposed bill contains two procedures which must be judged against the
reasonableness requirement of section 8. The bill provides for inspection of a
dwelling place with a warrant. The inspection powers, though, are fairly
carefully circumscribed. Not just any home is subject to inspection, rather,
only those dwelling homes having, on reasonable grounds, connection to the
tobacco industry. The inspection authorization procedures allowing for the
issuance of the warrant follow Hunter v. Southam relatively closely. The
procedures do require prior authorization. The prior authorization is granted
by a judicial officer. The authorization is granted on reasonable grounds
established on oath, though once again the drafting of the reasonable grounds
requirement could be improved.
The main departure in the warrant issuing procedures in the proposed bill from
the Hunter v. Southam standards is that the inspection need not concern any
offence. One might respond that that is the whole point of inspection. However,
before continuing with the justification of inspection, I will set out the
second type of search and seizure provisions in the proposed bill. This is
inspection without a warrant.
Once again, the inspection powers are circumscribed. Inspection cannot be made
of a dwelling place without a warrant. There must be reasonable grounds for
believing the place to be searched has a connection to the tobacco industry.
The inspection must take place at a reasonable time. The inspection is not a
full-blown search, although inspectors do have the right to go into computer
data bases, search for information and request the opening of items that may
contain tobacco products. Inspectors cannot use force to enter premises.
While these factors might tend to support the reasonableness of warrantless
inspection, there are some countervailing considerations. In the course of
inspection, inspectors may find evidence of offences. The bill does create
approximately 20 offences. The penalties may be very harsh, and there are also
penalties for non-cooperation and for obstruction of inspectors. One might
wonder whether warrantless inspection or inspection under warrant could be said
to be reasonable when it appears to put industry participants in fairly serious
penal jeopardy. In my view, both the warrantless inspection procedures in the
proposed bill and the warranted inspection procedures are reasonable.
The tobacco industry participants are not in the position of ordinary citizens
who are trying to keep the state away from their private lives. The state is
already inside the industry and already deeply involved with all of its
aspects. The tobacco industry deals with a dangerous product, and the safety of
Canadians demands that measures be taken to ensure regulatory compliance before
problems occur or before problems grow and become unmanageable. Without
inspection, pre-offence visits and examinations, the provision of information
and guidance by inspectors, the state would come upon the scene too late. As
under the criminal law, intervention would occur only after the damage has been
Those are my submissions.
Senator Kenny: I wish to raise a brief question with Mr. Gadbois.
After listening to your presentation, sir, I have come to the conclusion that
you and the people you represent do not want to undertake what seems to me to
be your fair share of obligations in protecting the youth of Quebec from the
dangers of tobacco. This concerns me inasmuch as 40,000 people die each year
from tobacco, 11,000 of them in the province of Quebec. Given your final
remarks, you seem to be assuming too many of the responsibilities in the
process of dealing with this issue belong to government. Are you advocating
that cigarettes should be distributed in the province by some agency like la
Societé des alcools du Quebec, which, for non-Quebecers, is how expensive
wines and liquor are distributed? It is managed by a government agency.
Mr. Gadbois: Is that it?
Senator Kenny: That is a start.
Mr. Gadbois: With respect to part one of your "fair share" question,
my only reaction is to ask: Where is the sharing? If we had a fair share,
someone else would be responsible besides ourselves. No one else is
responsible, not even the minor who smokes. Basically, you have a situation
where the law is dealing with secondary aspects of an activity which are
criminal but the main aspect is not.
We are responsible for not selling to minors, but minors are not being held
responsible for not buying or not consuming. We have two good examples here
with that question.
First, there is a law in Quebec on alcohol. There is an example where minors are
controlled or at least they incur some kind of serious penalty if they purchase
or consume the product. At that level, our track record is very good. We rarely
experience problems or are notified by la Société des alcools du
Québec, which is responsible for that in Quebec, that there have been
problems simply because we assume that placing a certain level of
responsibility on minors informs them that the act is deemed criminal, since it
is for us to sell.
Second, I am glad you raised the SAQ as an example. We are licensed to sell beer
and wine in Quebec. The state gave us the right and the permits to sell
alcohol. The responsibilities of alcohol purchase are shared with consumers,
which is not the case for the tobacco issue. In the case of tobacco, the person
who purchases the product does not share the responsibility.
We are not saying that we do not want the responsibility, because it is part of
doing business, but right now inspectors from the federal government are having
a field day in Quebec trying to entrap members in our organization for selling
to minors. They are doing a very good job. I can show you young men and women
that you would not believe are under 18. Do not forget that usually in the
business that we operate we have maybe five, six or ten clients waiting to be
served. It is sometimes difficult for us just to manage to serve them
correctly, never mind having to say, "I am sorry, I think you are a minor.
Could you please show me an identity card?"
By the way, it is unlawful for me to ask for the only piece of identification
that I would believe. I would be penalized for so doing.
Do you see the kind of Catch-22 in which we are involved? We are asking you to,
first, ensure that there is some kind of valid card for which to ask; and,
second, criminalize the act to minors. If you want to stop them, then it should
be clear to them that they may have rights, but they also have
responsibilities. Their parents, teachers and everyone else in society should be
held responsible -- if that is what we want -- for giving them cigarettes or
allowing minors to smoke. What kind of society do we live in where parents give
cigarettes to their children, but the only one penalized is the retailer? It is
also a burden in the economic sense because penalties are high enough for us to
lose our business.
Senator Kenny: Have you accepted or rejected the SAQ option?
Mr. Gadbois: I have rejected the SAQ option because we are dealing with it
already, and we are doing a good job of it.
Senator Kenny: Dealing with the substance of your argument, first, in this
legislation are penalties and restrictions that apply to manufacturers.
Mr. Gadbois: Yes.
Senator Kenny: They are restricted in a variety of ways.
Would you also agree that it is fair that the people who are making money from
this product that kills so many people should bear the burden of the
Mr. Gadbois: I would not phrase it the same way. I would say manufacturers have
a burden of responsibility which is equal to society's responsibility.
Senator Kenny: Let us look, then, at some of the other offences that a young
person might commit and how the courts tend to treat young people when they do
commit other offences. For example, a young person has stolen $800 from, say,
one of your stores. What sort of punishment would the courts hand out to that
individual? What would happen on a first offence?
Mr. Gadbois: It depends if it is stealing or using some kind of force to steal.
Senator Kenny: No force; they just took the money, but it is still $800. I am
saying that they are likely to get an absolute or a conditional discharge. Do
you really want to start criminalizing young people at this age? Are there not
other ways that we can be dealing with them?
Mr. Gadbois: You are raising a whole new set of issues.
Senator Kenny: Yes.
Senator Nolin: You should probably ask this question of a lawyer.
Senator Kenny: That is fair, but the witness is asking us to criminalize the
purchase of cigarettes by young people.
Mr. Gadbois: I am not saying that. At our age, we tend to forget how we were at
14 or 13. It is terrible, but that is how things are in society. Education has
done a great deal. Most young smokers today were dealers of contraband when the
taxes of 1991 were implemented. They were the dealers because no one could
touch them. We dealt with contraband in a hard way in Quebec. Do not forget that
when it was over, 80 per cent of the cigarettes sold in Quebec were contraband
cigarettes. The government realized that it was losing money hand over fist so
it lowered the tax, but it has started to re-introduce the tax.
Eventually, people stop smoking. They start young. They start probably younger
today for many reasons. Education is probably the best way for youngsters to
avoid starting to smoke. Coercion has never been the best way. You are asking
me if I am comfortable with criminalizing the purchase of cigarettes by
juveniles; I am not. However, if you are criminalizing one sector of society
then criminalize everyone, because everyone is responsible. Where is the logic?
Senator Kenny: This is the very point that I am challenging you on. I am
suggesting that it is fair and reasonable to criminalize you or the
organization you are representing, because you are profiting from it.
In terms of how we deal with youth, there are other ways to get them not to use
Mr. Gadbois: If government is really coherent, criminalize the product, period.
It is clear to me. You criminalize use of the product once and for all and you
will see whether or not society will live with it. I guarantee you that it will
not and everyone will be criminals.
Senator Kenny: We understand your position.
Mr. Gadbois: Government is not being thorough in its thinking. Government knows
it cannot cope. They say, "We will fine the retailer, and this guy or this
woman will be responsible because we cannot apply the law, or enforce law, or
control things. At least we will make someone responsible because he is linked
somewhere in the process by making money out of it." That is not the issue.
The issue is stopping people from smoking. You will not stop people from
smoking with that approach. All you are doing is touching our economic
well-being. Part of it is related to cigarettes, but you will destroy
We have had students who are 16, 17 or even 18 working in our stores at night
who are not observing the law because they know the youngster who comes in and
they sell to him. There are many ways for us to get caught in that system. We
are saying that the responsibility is not even shared by the one who asks for
the product, as is the case for alcohol. What is the reason for not doing it
with tobacco if you do it with alcohol?
I sympathize, sir, with the complications you describe. I think they are real
and difficult to resolve. I do not share your view that cigarettes should be
criminalized for young people, but I do respect the point that you have made
about how difficult it is for a clerk dealing with the situation at the time.
Having said that, I think that is part of the price that you and your
organization have to pay if you are going to sell cigarettes.
Senator Nolin: You indicated that you have some concerns about the age of your
workers, that is about those who pick tobacco. Are you concerned because of a
specific provision in the bill or simply because of the legislation's general
Mr. Ducharme: The bill includes prohibitions on posters and stickers on
automobiles. Apparently an 18-year old should not be exposed to advertising of
this nature. The bill is not clear on the issue. Will young persons be able to
work in the tobacco industry if they cannot be exposed to tobacco advertising?
That is what we are wondering. Overall, the bill would appear to indicate that
this is the case.
Senator Nolin: Therefore, it is not one clause in particular that has given you
reason to be concerned.
Mr. Ducharme: No, no single clause. We are concerned about the definition
provided at the beginning of the bill. Included in the definition of "tobacco
product" are tobacco, tobacco leaves and seeds and so forth. The minimum
age listed is 18 years. Combine these two elements and the result is that an
18-year old may perhaps not be allowed to work in the tobacco fields.
Senator Nolin: You mentioned the age of your employees. How many of the
employees who work for Alimentation Couche-tard are between the ages of 16 and
Mr. Gadbois: I could not tell you exactly. I have been told that the figure is
40 per cent.
Senator Nolin: Forty per cent of your workforce is between 16 and 18 years of
age. When these persons are on the job, are they alone or working with older
Mr. Gadbois: Mr. Bouchard will correct me if I am wrong, but generally speaking,
these youths work in the evening, often after 11 p.m. Many convenience stores
are open 24 hours a day. These jobs provide extra income for many students who
take advantage of their flexible class schedules at CEGEP or university. In
answer to your question, yes, they often work alone in these stores.
Senator Nolin: What steps have your store and others taken to train employees to
request some I.D.?
Mr. Gadbois: All prospective Couche-tard employees undergo a comprehensive
training program. The identification issue has proved to be a major problem. In
some cases, inspectors have deliberately brought in minors to put various
stores to the test. Couche-tard has not been spared. We contact our members on
a regular basis to remind them of the dangers and of the controls that they
must have in place. Retail outlets that belong to a chain are more organized.
Senator Nolin: What exactly do you mean?
Mr. Gadbois: I am referring to retail outlets that own a franchise and who
purchase most of their products from a group of distributors. Métro is
an example of a large chain store. In the category of smaller franchises, we
have Provi-Soir, Couche-Tard and Boni-Soir that operate across the province.
Unlike what we see in the rest of Canada, approximately 80 per cent of Quebec
retailers own their own business. They are independent owners who operate in
association with a supplier. Elsewhere in Canada, only 20 per cent of retailers
own their own businesses. The rest are owned by large corporations.
In Quebec, there are 10,000 retail outlets, or twice as many per capita than
elsewhere in Canada. In addition to receiving general regulatory information
from us, the chain stores are the ones that provide training to their
Senator Nolin: Yesterday, we heard from a witness who told us about a proactive
program developed by tobacco manufacturers to help retailers carry out their
responsibilities in terms of identifying the age of cigarette. Were you
involved in this initiative?
Mr. Gadbois: Yes, but on an independent basis. We were already doing this.
Senator Nolin: No law required you to do so.
Mr. Gadbois: You may recall that approximately three years ago, we proposed that
the legal age be upped to 18 because this was easier for us to monitor.
However, this does not resolve day-to-day problems. It is crazy to think that
we will be able to prevent young people under the age of 18 from purchasing
cigarettes. No monitoring system is foolproof. It is not illegal for someone
else to buy the cigarettes, as it is in the case of alcohol. It is not illegal
to ask an 18-year old friend to buy cigarettes. That is what happens in most
cases. It is not difficult for us to correctly identify young people. The thing
is, a third party will be able to make the transaction. If 80 per cent of
cigarette sales involve smuggled cigarettes, imagine how futile this exercise
will be in the case of the small Canadian market of youth smokers. However, if
you do go ahead with this initiative, you should ensure that responsibility is
shared equally and that young people are taught that if the government says it
is illegal to sell cigarettes to them, it is also illegal for them to purchase
them. That is only logical.
I understand that this may appear excessive up to a point. However, follow
through on your convictions and ensure that the process is illegal.
There is one principle in our society that must be imparted to young persons:
with rights come responsibilities. One person cannot always be made to shoulder
all of the responsibility simply because that person stands to gain something.
What does this say? You know as well as I do that this will not resolve the
To have a clear conscience, the legislator has deemed that one person is
responsible and that that person is the retailer. Even the police's hands are
tied. Neither parents nor the school boards have a role to play. Even the youth
protection service supply cigarettes free of charge to minors housed in
Senator Nolin: Which service is that?
Mr. Gadbois: I am talking about the youth protection service which works with
youths under the age of 18. Instead of being sent to prison, young persons are
detained for a period of time in special residences, whether it be for 24
hours, a week or several months.
You can check for yourself, but I believe each resident who submits a request
receives an allowance. Many crazy things happen, but I am not here today to
talk to you about that. Crazy things happen in life in general.
We are here to defend ourselves. We are asking you to be reasonable and to have
all members of society share the burden of responsibility equally. That is the
logical thing to do. We have focused a great deal on clause 8. However, section
53(2), as the professor mentioned earlier, deals with offences and punishment.
In this particular case, the burden of proof has been placed on us.
Senator Nolin: It has become your responsibility.
Mr. Gadbois: Yes. The retailer is specifically mentioned. I cannot be held
responsible for a legal promotion designed by manufacturers, manufacturers
recognized by the government, who happen to come into my store. Where is this
going to end? I will be forced to spend my time inspecting and analysing. Do I
have the necessary tools to pass judgement? I will be forced to spend the better
part of my time acting as the government police and the government tax
collector. What happens to my business and my competitive position in the
Senator Nolin: The points you raise concerning the understanding business have
of the law, among others, are certainly valid. Have you conveyed your comments
to the health department? Have you been consulted in that regard?
Mr. Gadbois: Yes.
Senator Nolin: How and when did that consultation take place?
Mr. Gadbois: There was a process to question the use of identification cards. In
Quebec, the use of identification cards has been publicly discussed for a
certain time. The various organizations agreed to study the proposals submitted
to the parliamentary committee that is holding hearings at this time in Quebec.
In our brief, we recommended issuing universal identification cards as probably
the best way of settling the problem. The State may also decide that the use of
such cards is possible; there is the health insurance card with a photograph,
which is probably one of the easiest to monitor and one of the most serious;
the driver's licence for young people can vary, since they can obtain it at 16,
and not always 18 years of age. But it is very clear that it is forbidden to
ask for an identification card for a purpose other than the one for which it
was conceived. We propose two options: that the regulation be changed so that
we can ask for the cards, because we are liable for the payment of penalties,
there are certain preset monetary penalties; or that a universal identification
card be developed that we can use without having to fear that we are breaking
the law. We have appended the brief we presented to the parliamentary committee
to our document.
Senator Jessiman: Mr. Gadbois, in terms of sales to minors, are you saying that
the sale of alcohol is not as onerous on the retailer as is the sale of
Mr. Gadbois: That is correct.
Senator Jessiman: As retailers, what would you think if cigarettes were sold in
a similar manner to alcohol? Or what would you think if it were available in
every drug store and every corner store?
Mr. Gadbois: I do not represent pharmacies, but you can understand that I would
love to see drug stores not being able to sell the product, since they are
invading our territory whenever they sell food. I would make the joke that in
Quebec, as you know, at least wine and beer are sold in our stores. There is a
restriction as far as specific types of wines are concerned. If the situation
were the same with regard to cigarettes, where you have grand cru for a good
year and tabac jaune, I would say the prices would have to be high. Cuban
cigars would be in that category. Obviously, there are no such restrictions for
Yes, we still want to sell cigarettes. As far as we are concerned, it is a legal
product. What we are saying is that there are fewer instances of minors
purchasing alcohol in our stores because alcohol is illegal for minors. They
cannot be seen with it or holding it. If they are, the police are allowed to
arrest them. This is not the case with cigarettes. That is probably why we do
not have a high incidence of minors trying to buy alcohol products, which is
not the case for cigarettes. If it were illegal for youngsters to buy, purchase
or consume cigarettes, then, obviously, they would not just feel comfortable
buying it, leaving the store or even have someone buying it for them, like we
all did with beer when we were under 18. We had someone with facial hair in our
group and he would buy beer for us and we would drink it. I do not think I am
the only one who did that. Teenagers still do that today. With cigarettes it is
probably the same thing. Someone can buy cigarettes, give it to a minor inside
the store and they are scot-free. They can say, "Neither one of us has
broken the law."
The Chair: If someone over the age of 18, even though it is not the retailer,
sells to another person, they have committed a breach of this law.
Mr. Gadbois: Yes, but are they selling? When do you know a transaction has taken
The Chair: The bill states that no person shall furnish, which means to provide
a tobacco product to a young person. That is what the bill says. I want to make
sure we are talking about the law here.
Mr. Gadbois: The only problem is that that is the way it is done, and it will
continue to be done in that way.
The Chair: It is illegal.
Mr. Gadbois: Yes, but no one will arrest them.
The Chair: No more than they will arrest you, unless someone is in there when
the legislation passes.
Mr. Gadbois: They are.
The Chair: Then they will also arrest this person.
Mr. Gadbois: No. It is easier to do than to go on the street. Can you imagine
trying to do that on the street with people? Are they even allowed to ask a
minor for some form of identification?
We are affected directly by clauses pertaining to dwelling houses, because many
small stores are under the dwellings of individuals. Basically, when you enter
the store, you are entering the dwelling. I would say it is the case for about
2,000 dépanneurs in Quebec.
I am trying to make you aware of all the complications. Our business is to sell.
We have responsibilities. We respond to these responsibilities. We have done it
with alcohol. Now you are asking us to be responsible for promotion inside our
stores. You are asking us to be responsible for the nature of the product
within the package inside our store when we are buying it openly from well
known manufacturers. Finally, you are asking us to be responsible for
identifying the correct age of someone when, first, we are not even allowed to
ask for the correct papers from the person and, second, the person who is
buying is not precluded from buying legally.
Senator Jessiman: The tobacco companies yesterday said that they were spending
about $1.5 million a year to try to assist retailers in not selling to minors.
Are you familiar with that?
Mr. Gadbois: I do not know how they spend it.
Senator Jessiman: They said they are having some success with that program. You
are the people that they said they were trying to help, that is, retailers.
Mr. Gadbois: My members pay me to make sure that they are well informed, which
is what I do. I do not know how the manufacturers spend that $1.2 million. It
is probably related to some form of pamphlet or information that they publish
or put together. Frankly, I do not believe it is their responsibility. They
manufacture the product.
Senator Nolin: However, they have done it.
Mr. Gadbois: They have done it.
Senator Nolin: Without being forced to do it.
Mr. Gadbois: Bravo.
Senator Nolin: Exactly.
Senator Jessiman: Do you not think retailers should have some responsibility to
try not to sell to minors, even though you are saying they should not be the
only ones responsible? Surely you have some responsibility to the people to
whom you are selling the product, notwithstanding that it is all packaged when
you buy it. You should have some responsibility not to sell to minors.
Mr. Gadbois: That is what I said to Senator Kenny. I said yes.
He specifically mentioned fair share. I do not think it is a fair share. We want
to share. I feel a great deal of resistance to the fact that it should be
criminalized to sell to those under 18. I said, "Let's be logical here,
otherwise we'll never have our fair share." If it is the case for alcohol,
then it should be the case for tobacco, and other people should be concerned
with that issue. We should not be the only group involved. You might satisfy
yourself economically in linking us to that, ensuring that a responsibility is
there because we make money out of it. However, you will never solve the
problem. We must think as a community, beyond just ensuring that it is applied
and there is a logic there and it will be settled. We will have the same
problem in 10 or 20 years' time. If we want to solve it, we should do it
seriously and globally, or we should forget about it.
Senator Jessiman: Yesterday, counsel on behalf of the tobacco company said that
if this bill is not amended, there will be a court challenge. In particular,
they made reference to entry without warrant, seizure without warrant and the
reverse onus provision to which you referred. What is your view on whether they
will have some success in that regard?
Mr. Renke: Certainly they can litigate these issues. There is nothing stopping
them. My prediction is that they will meet with success on the general reverse
onus provision in subclause 53(2). My expectation is that they will not meet
with success on the warrantless inspection provisions of the act for the
reasons I have indicated.
In respect of the search with warrant provisions, the act does come fairly close
to the criminal law constitutional standards, with the exception that
inspections are not necessarily done for the purposes of determining whether an
offence has occurred. The main issue will be in relation to the regulations
Again, given some past decisions of the Supreme Court, there is a tendency of
the court to recognize that, in regulatory contexts, persons have a reduced
expectation of privacy. My view is that even the warrantless inspection
provisions will be sustained, though these are certainly arguable issues. I am
not saying these are obvious issues one way or another.
Senator Lewis: It is interesting to hear of some practical problems which may
Mr. Ducharme mentioned the problem of young workers under clause 8, I believe. I
would point out that there is nothing in that clause preventing a person under
18 from handling the tobacco products. As a matter of fact, there is no
prohibition against possession of tobacco products; it is only the selling or
furnishing where the penalty applies.
This leads to another point. Mr. Bouchard mentioned the question of shared
responsibility. Are you referring there to the shared responsibility between
the retailer and the purchaser?
Mr. Gadbois: We share a responsibility for the promotional material in our
stores, or what would be considered promotional material of products, ranging
from lighters to posters. We share that responsibility with the manufacturer.
Senator Lewis: This is my point.
Mr. Gadbois: On that issue, as we propose in our memorandum, we believe that
there should be some form of control. The product is already controlled, but we
should make it controlled by a board. Once we receive products and publicity
from recognized legal manufacturers, we believe we have a right to presume that
these products or materials are legal. If every retailer were required to check
the products and publicity, he would have to call his lawyer to verify whether
it is legal. It will never end. It is clear in the clauses referring to
promotional activities in our stores that we are also responsible.
We are saying that we do not know the best way to deal with it, probably a
control board of some kind, but please, retract or take away the word "retailer"
so we are not held responsible for those products or that material. The
manufacturers are legal or recognized entities with licences, et cetera. We
presume that there should be a control there. They should know whether what they
sell or give us as material is legal.
Can you imagine a corner store where the owner and his wife had to check every
piece of material related to tobacco or publicity of tobacco and ensure that it
Senator Lewis: Some of these things will probably be covered in the regulations
when they come forth.
Mr. Gadbois: Instead of waiting for regulations, why not take us out of the
application of the clause itself? We do not see the logic of our sector being
responsible for legal products that we are receiving, especially if they are
promotional products or what have you.
Why must I check to see if the match box that I get is legal or not? If it has a
Players or a du Maurier logo on it, how can I check if it is too big or too
small? I should not even get it if it is not legal.
Senator Lewis: I presume that the same thing applies under the Food and Drugs
Act. I do not know if this comes under that, but chocolate bars, breads, and
pies must have certain ingredients, I believe.
Mr. Gadbois: That is mostly based on the make-up or the contents of the product
Senator Lewis: You cannot go and check all that. You must accept that when you
get the product.
Mr. Gadbois: Again, in clauses 15(1) all the way to 33(f), it is clear that we
are held responsible. We are saying, "Please take retailers out of the
list of people responsible for those products." This is not an amendment,
but we are suggesting that if you want to have some form of control, you might
want to form a control board. If you have a control board, we might have
something to say about what is correct and incorrect for retail because it
affects our business.
Senator Lewis: Just following along from that point, we heard from
representatives of the manufacturers yesterday. They seemed to take the view
that they manufacture the noxious substance and do the promotion and the
advertising in order to make sales, but it is then up to the retailer.
Mr. Gadbois: I should talk to them because we are their clients.
Senator Lewis: Do you think there should be more responsibility on the part of
Mr. Gadbois: I presume that all the material that is produced, made or created
by manufacturers or their agencies should be subject to some norms, and they
should follow them. If they do not follow them and I receive their products in
my stores, what can I do? On a daily basis I cannot ask each of the 10,000
retailers in Quebec to check with their lawyers to see if what they are getting
complies with the law. Basically the clauses in the bill are very clear on that
point. I am as responsible as the manufacturer once I put these products, the
promotional material, or what have you on display.
Senator Lewis: Regarding shared responsibility between the retailer and the
buyer, do you feel that a penalty should be placed on the buyer where it is
determined he is under age? Would you go so far as to say that there should be
a complete ban on possession of tobacco by young people?
Mr. Gadbois: If you want our fundamental position, I refer you to our memorandum
on page 4, which is basically a judgment from Judge Brassard. I will read it in
French because I am more comfortable in French:
Parliament may not criminalize the secondary aspects of the principal activity
if it has not criminalized that activity.
That means basically that the main activity here should be illegal and that is
buying the product. It is considered criminal for us to sell the product. That
is what they mean by saying that the secondary activity is criminal while the
principal activity is not.
We are saying you either criminalize it or you do not. We are in the secondary
activity here, even with the promotion and so on. The main activity is not
considered criminal because youths are not criminals if they smoke the product,
own the product or buy it, so why is the secondary activity considered
criminal? Obviously, this point is the underpinning of our whole principle. We
believe that the Senate will take into consideration all these issues, because
they are fundamental commercial, economic and, to a certain extent,
constitutional. However, if the bill passes as it is, we intend to go to court
with these issues, because we think there are rulings that say that the clauses
I mentioned cannot apply. It is very clear that they cannot apply. We want to
support whatever the Senate will put together to make sure that there are
shared responsibilities, that we are not singled out as being the only ones
responsible, and that the clauses in the bill do not interfere with what we
would say is reasonable business.
Those of you from Quebec will probably have seen our organization in the past.
We were very active when we fought against contraband. For us, this is a
dangerous series of clauses, and we will have to be much stronger in our
interventions. We have followed the process to make sure that we understand
exactly what the clauses mean. We believe, having done the work and identified
which of these clauses will have negative effects for us, that you will amend
them in such a way that they are reasonable and that they attain their
objectives. If not, then that process will be ended as far as the Senate is
concerned and we will have to get involved in other ways, and very strongly, as
we did in the contraband issue. This issue affects our livelihood.
The application of some of the clauses, such as clause 53(2), will cause many
businesses to close because of the burden. If the government is very strict in
applying not regulations but the clauses here, many businesses will close, and
that is not the purpose of the law.
Senator Lewis: You mentioned the question of displaying cigarette packages in
the store. I am looking at an information sheet that has been issued by Health
Canada, which says that in the government's consultative document, "Tobacco
Control, a Blueprint to Protect the Health of Canadians", it was proposed
that only one packet of cigarettes per brand be exposed for sale at retail. The
purpose of the proposal was to reduce the inducement to youth to purchase
tobacco products while at the same time providing adult customers with
information regarding brand availability. During consultations with the retail
sector on the blueprint, it became apparent that this proposal would not be
practical and would involve additional expenses for retailers. As a result of
the concerns expressed during consultations, the blueprint proposal was not
carried forward into Bill C-71. Apparently you are not restricted to displaying
just one package.
Mr. Gadbois: No, not at the moment. You have to understand the process that goes
on in a retail store. Usually people who purchase cigarettes are already
smokers. When they come in, they already have a need for their cigarettes. They
do not make the choice inside our store to smoke or not to smoke.
Senator Lewis: Would you go so far as to say that cigarettes are addictive?
Mr. Gadbois: I would not say that. I smoked myself and I stopped. It depends on
the type of addiction you are talking about. You could be addicted to many
things. That is not the issue. We believe that, just as with other products,
basically it is a selection between products, and marketing gives information
specific to differences between products. That is what is on the cigarettes or
on the displays of those cigarettes. That is the same as for other products. It
could be a marketing ploy or whatever, but basically, you have smokers who come
in who decide they want a milder cigarette on that day or a menthol cigarette
because they have a cold, or they see there is a new type of filter and decide
to try it. There is presently publicity on a filter that makes the cigarette
less rough or easier to smoke. It is a great element of marketing. I was asking
myself, if it is so rough, why do you want to smoke? Often people have made the
choice that they want to smoke and they want a different type or brand of
Our business is to offer to the consumer the selection that is on the market
today. It is similar to the situation with yogurt, although many may find the
comparison ridiculous. If someone comes in the store and does not want to buy
yogurt, there is a good chance that the variety of yogurt that I offer him will
not influence his choice because he is not interested in it. We are fighting to
sell within a market, and I wish to distinguish myself within a market of
people who are already smokers.
I treat it like any other product, as far as publicity or marketing is
concerned. I want to make sure that I have the same variety of choice as my
competitor next door because that is what keeps me in business.
The person who wants to purchase a bottle of milk, his newspaper, or whatever he
buys on a daily basis, can do so. Half the population of Quebec goes through
our stores in half a week. Basically, I want to make sure that they come back
and they will continue to have a choice. One element that we put in our
memorandum is that we are quick. No one wants to lose time buying food or
whatever product it is. Often customers are in a hurry because it is a burden
for them. We must be quick. Imagine what will happen when we have to line up
people and we say, "We want to see IDs here." It will become a
problem with certain stores and a source of competition with other stores.
Senator Beaudoin: My question is addressed to the professor at the Faculty of
Law, University of Alberta and concerns what you said about clause 53. We have
heard in the last few days that when there is a reversal of the onus of
presumption of innocence, it is illegal or unconstitutional. This is not so. We
may have a reversal of the onus of the presumption of innocence that is quite
acceptable. If I am not mistaken, that is exactly what the Supreme Court did in
the Laba case of 1994.
In other words, if the accused is obliged to establish beyond any reasonable
doubt that he is not guilty, of course it would go against the Charter. Likely
it would not be justified under section 1 of the Charter. However, if the
accused is under the obligation to offer, present or invoke an excuse, or as
stated in clause 53, some other "exception, exemption, excuse or
qualification," then of course it is justifiable under section 1 of the
Do you as an expert agree or disagree with my statement?
Mr. Renke: I agree with your analysis. Perhaps I disagree in your application of
the analysis to this particular provision.
Senator Beaudoin: You mean clause 53(2)?
Mr. Renke: Yes, and I shall explain what I mean.
First, you are absolutely right. If a statutory provision required an accused to
prove a defence beyond a reasonable doubt, that would violate section 11(d) of
the Charter, of that there is no doubt. However, keep in mind that there is not
one burden of proof under the criminal law, but three. The "beyond a
reasonable doubt" standard applies to the prosecution, the Crown, and the
Crown must establish its case beyond a reasonable doubt before this conviction.
A second possibility is that a statutory provision may provide that an accused
must establish a defence on a balance of probabilities. The defence or the
accused must establish that his or her position is, on balance, correct. My
suggestion is that clause 53(2) imposes that type of burden. It is what is
sometimes referred to as a "persuasive burden", where the accused is
required to establish a position on a balance of probabilities.
A third possibility, though, is where the statutory provision finds some fact to
be the case, unless there is some evidence to the contrary. In that kind of
case, the fact presumed under the statute is not presumed so long as the
accused can point to some evidence which raises a reasonable doubt.
In the case of a persuasive burden, there seems to be strong authority that
persuasive burdens do violate the presumption of innocence. This is because
persuasive burdens allow a person to be convicted despite a reasonable doubt.
How can that be? If an accused has the obligation under the statute to prove a
point to the balance of probabilities, the accused may only have been able to
establish a reasonable doubt. That is not good enough because the statute
requires proof on the balance of probabilities. Despite the existence of the
reasonable doubt, the accused can still be convicted; therefore, violation of
However, that is not the end of the story. There is then a balancing under
section 1 of the Charter. It may well be that a statutory provision that
imposes a burden on an accused of establishing a point on a balance of
possibilities is justifiable in a free and democratic society. As an example,
there is a presumption in the Criminal Code relating to impaired care and
control of a motor vehicle. This statutory provision is along the lines that a
person found in the seat normally occupied by the operator of the vehicle is
deemed to have care or control unless that person establishes that he or she did
not enter the vehicle for the purposes of setting it in motion. It imposes a
persuasive burden on an accused, it violates section 11(d) of the Charter and
is sustained under section 1 of the Canadian Charter of Rights and Freedoms.
The difficulty with clause 53(2) is that because it imposes a persuasive burden,
it prima facie violates section 11(d) of the Charter. We then have to look to
section 1 of the Charter to see whether this violation of section 11(d) is
justifiable. The main difficulty that I have with clause 53(2) is that it is
not necessary for the purposes of enforcing this bill that an accused be
required to prove his or her defence on a balance of probabilities. It ought to
suffice for an accused simply to be able to point to some evidence which, if
believed by the trier of fact, would raise a reasonable doubt. The accused
either has some evidence that there is some regulatory exemption or not. If
there is no evidence of such an exemption, the person will be convicted. If
there is some evidence, then let the accused point to that evidence and let the
Crown take on its normal burden of proving the case beyond a reasonable doubt,
showing that the defence, in the circumstances, does not apply.
Senator Beaudoin: This is perhaps where we disagree. I would go along with the
general principle and with the Laba case. On the question of it being
persuasive and a question of presentation, we also agree. Obviously, clause
53(2) goes against section 11(d) of the Charter. You disagree that that is
established under section 1 of the Charter.
Mr. Renke: I disagree with that because clause 53(2) is drafted so broadly. We
do not even know exactly what legislative purposes it is serving. One
qualification to my position in my presentation was that there are other
reverse onuses imposed under this bill. I did not say that those were
unconstitutional. It may indeed be justifiable for the accused person to prove
his or her provision on a balance of possibilities.
With all due respect to the practical difficulties retailers might have in
determining whether or not someone is a young person, if a retailer is charged
with furnishing a tobacco product to a young person, the bill provides for a
defence of due diligence. In effect, though, the drafting of the current
provision is not good.
The legislation provides for a defence of due diligence. In this particular
circumstance, it is appropriate for the accused to bear a burden on the balance
of probabilities. The accused is in possession of all the facts. The accused
was there. The Crown will probably not be able to call anyone on the retailer's
side to be a witness against the retailer; the person who purchased the material
may not cooperate. This is evidence solely in the hands of the accused. Let the
accused prove it. In the particular circumstances, my opinion is that the
reverse is permissible, but not in a general matter.
Senator Beaudoin: Is it only in that case that you are inclined to disagree?
There are some other reversals, but you are not concerned with them?
Mr. Renke: No.
Senator Beaudoin: The one you are concerned with is clause 53(2).
Mr. Renke: Yes.
Senator Beaudoin: It is a debate. Do you not think it is justifiable?
Mr. Renke: My reason for concluding that is that the clause is simply too broad.
It does not specify the present problem.
Senator Beaudoin: The court will decide.
Mr. Renke: The court will decide, yes.
The Chair: Thank you to all of our panellists. We learned a great deal this
We will begin with a presentation from the Alliance of Sponsorship Freedom,
followed by the Artists for Tobacco-Free Sponsorship.
Mr. M. Max Beck General Manager, Ontario Place: Good morning and thank you for
allowing us to come here to make a presentation today and participate in your
review of Bill C-71.
My name is Max Beck, and I am the executive committee member of the Alliance for
Sponsorship Freedom. Michelle Létourneau is with me and we also have Mr.
Rick Dearden, who will be pleased to join us and answer any technical questions
you may have regarding Bill C-71's proposed restrictions on sponsorship
promotion and specifically to outline how Bill C-71 infringes section 2(b) of
the Canadian Charter of Rights and Freedoms.
The Alliance for Sponsorship Freedom is an association of over 250 arts, sports,
fashion, entertainment and cultural organizations, events and corporate
sponsors which was formed last August to protect sponsorship rights.
I will say at the outset that the alliance supports the government's health
objectives in Bill C-71 and we are not opposed to government promotions. We
have lived with those objectives for a number of years, and as long as those
objectives are reasonable, we are prepared to continue to live with them.
In the alliance's view, however, the proposed restrictions and absolute
prohibitions in Bill C-71 are extreme and unreasonable since they amount to a
virtual ban of tobacco company sponsorships.
According to a study commissioned from SECOR, a respected management consulting
firm, just 20 key events across this country with tobacco company sponsorships
contribute approximately $240 million to the Canadian economy and create 5,000
jobs, which are certainly needed. These events generate about $66 million in
direct income to individuals and $18 million to governments each year in the
form of taxes. In SECOR's view, these numbers represent a small fraction of the
overall contribution of the events and organizations that receive financial and
in-kind support from the tobacco industry, since over 370 organizations in
Canada receive tobacco company sponsorship each year.
A great deal of the debate surrounding Bill C-71 is focused on the issue of
replacement funding or the myth of replacement funding. I say "myth"
because the vast majority of the $60 million at stake cannot be replaced by
other corporations and Bill C-71 will force many events to be cancelled and
most to be downsized significantly.
In response to Mr. Dingwall's challenge to Canada's major financial
institutions, most revealed that they would be unprepared to replace these
sponsorships, and they are the people that seem to have the most money
As an event organizer in Canada who is in the business of asking corporations
regularly for sponsorship funding, this does not surprise me, nor does it
surprise any of the event organizers who are members of the Alliance for
Sponsorship Freedom. I have a book here which is a small sample of the reject
letters and the refusal letters that some of our members have received on a
regular basis from people who are trying to acquire additional sponsorship. We
are all facing government cuts and we are looking for sponsorships. To subtract
a further $60 million from that budget is untenable.
There must be no misunderstanding that Bill C-71 will not lead to event
cancellations. The organizers of the Molson's Indys in Toronto and Vancouver
have already announced that 1998 will be the last year for those races in
Canada because of Bill C-71.
We do not want to have to cancel our events and Canadians do not want these
events cancelled. In fact, according to a survey by Insight Canada, 84 per cent
of Canadians agree that tobacco companies should be able to sponsor events
under a reasonable set of restrictions given the economic impacts that our
The members of the Alliance for Sponsorship Freedom firmly believe that events
should be able to associate with and appropriately recognize their tobacco
company sponsors. We believe that organizations should have the right to seek,
accept or reject sponsorship funding from Canada's tobacco companies.
The alliance does not believe that tobacco company sponsored events influence
smoking decision, since our events are about jazz, fireworks, film, motor
sport, theatre, tennis, comedy, golf, music and dance. Our events are not about
When Mr. Dingwall appeared on March 19, he conceded that young people do not
start smoking because they see a poster of Jacques Villeneuve wearing a
Rothman's logo. Yet in almost every circumstance, the same poster will be
illegal under Bill C-71.
Other promotional materials that are prohibited include offsite signage which
recognizes tobacco company sponsors, and promotions for sponsored events on
television or radio, regardless of whether these programs have an adult
leadership. Brochures, flyers and programs displayed in any public place, such
as tourism kiosks or hotel lobbies; equipment used in sponsored events, like a
race car and event merchandise and official souvenirs sold at events, which are
an important part of our revenue, would be prohibited. Direct mailouts of
tobacco company sponsored events would also be effectively prohibited because
there is no way to guarantee that those mailing lists include adults only.
It will be illegal to publicly thank our tobacco company sponsor for sponsoring
an event. I have brought a series of brochures that alliance members have, and
all of these will be illegal after this bill comes into effect. I have looked
through this list, and most of them are tasteful and not offensive to the
public. I can show you my own brochure for fireworks, and it does not have
anything telling young people that they should take up smoking.
While we do support the intent of the act to generally protect the health of
Canadians, it is clear that we will not be able to promote our events as they
need to be promoted both within Canada and, all important, internationally. It
is obvious to me that I will not be able to replace the Benson & Hedges
sponsorship of my particular event which brings 2 million visitors to Toronto's
waterfront. We have a contract with them. We have $5 million a year over a
ten-year period, and it is probably one of the biggest sponsorships in this
country. I do not believe that I can replace that $50 million.
To give you an example, my next largest corporate sponsor is General Motors of
Canada, a large corporation, and General Motors provides us with $250,000, a
long way short of $5 million.
We believe that Bill C-71 can be amended to advance both the government's health
objectives and to protect the hundreds of tobacco company sponsored events,
including the economic, tourism and employment benefits that these events
generate. We believe our amendments are workable and reasonable. The alliance
submits these amendments to the Senate with the hope they will be seriously
considered and passed back to the House of Commons.
I will now turn it over to Michel Létourneau who can elaborate on our
Mr. Michel Létourneau, Director General, Festival d'été de
Québec (Quebec summer festival): Thank you, Madam Chair, for having
agreed to meet with us. I am the Director General of the Festival d'été
de Québec du Maurier. I am proud to tell you that over the past two weeks
our event was awarded two prestigious prizes, that of cultural enterprise of
the year for job creation, and that of tourist event of the year in Quebec.
Our festival lasts 11 days, and employs over 800 artists in one or the other of
the 400 different performances that are offered. The honorariums and expenses
paid to artists amount to approximately $2 million. The Festival d'été
de Québec injects or generates $39 million in economic spinoffs in the
City of Quebec, creates 72 jobs a year, and allows 750,000 festival-goers to
attend every summer, 60,000 of whom are from outside Canada.
A large part of the debate surrounding Bill C-71 has to do with young people and
their smoking habits. Allow me to specify again that we are in perfect
agreement with the health objectives of the government, but we have some
reservations about the means used to reach them, and more specifically about
clause 4 of Bill C-71.
It has been said on several occasions that the problems Bill C-71 causes for
sponsorships are generally related to economic reality in Quebec and also only
to large events. With your permission, I want to demystify those statements.
The problems involve organizations everywhere in Canada: large and small, large
artistic organizations as well as small costume designers, large and small
festivals, and international sports events. Just seven sponsored events in
Ontario, according to the results of a December 1996 SECOR study, produce a 115
million dollar impact and create close to 2,400 jobs. In British Columbia, three
events alone inject $23 million into the economy and create 450 jobs. As you
can see, we are not only dealing with a Quebec phenomenon.
The Molson Indy races in Vancouver and Toronto inject $60 million into the
Canadian economy and create hundreds of jobs. The organizers of those two
events have already announced that 1998 would be their last year, because of
the restrictions contained in Bill C-71. You will have the opportunity of
hearing them tomorrow.
The Alliance for Sponsorship Freedom believes that Bill C-71 goes much too far.
The restrictions it contains make the sponsorship of events by the tobacco
industry commercially non-viable.
Moreover, any violation of the law makes those responsible liable for fines of
$300,000 and prison sentences of two years for each day the law is broken. Who
could afford such luxury?
As everyone knows, it is a reality in Canada that events such as ours cannot
survive without the support of private partners. As one of the workers in this
cultural industry, I can tell you that developing such partnerships with
Canadian corporations is not an easy task.
Some people believe that the amounts we receive from the tobacco industry
sponsorships are insignificant and can easily be replaced. I want to show how
groundless some of those biases are, biases that are bandied about by
individuals who no doubt do not have the experience I do and have not sought to
Fifty per cent of the overall sponsorship budget of my event, for instance,
comes from its partner du Maurier. The Tennis Open receives 80 per cent of its
sponsorship portfolio from du Maurier. The Craven A Just for Laughs Festival of
Montreal receives 50 per cent of its sponsorship budget from a tobacco company,
the Montreal Jazz Festival, 45 per cent, and the Benson & Hedges
International, 100 per cent.
Moreover, the sum of $100,000 that the 25th Street Theatre of Saskatoon receives
is just as vital to that organization as the thousands or hundreds of thousands
or millions that larger organizations receive. As a whole, those sponsorships
amount to over $60 million per year and I assure you that replacement funds are
not easy to find.
As a result of the partial or total loss of those sponsorships, the scope of our
events will be reduced, and some of them may disappear. This will happen
throughout Canada, in large cities as well as in smaller communities.
As I said earlier, Bill C-71 goes too far and should be amended. The amendments
we recommend can be found in part 4 of the document we tabled this morning and
rest on the following principles: the main purpose of sponsorship is to promote
the event, activity, person or entity involved, and not the sponsor. Further,
only events that are not aimed at a clientele of young people would be
authorized to use tobacco industry sponsorships.
Within these two broad principles, reasonable restrictions would apply to these
sponsorships. Allow me to mention some of them: the representation of a tobacco
product or of a tobacco product package is prohibited; tobacco product
trademarks may only occupy 10 per cent or less of the surface of any
promotional material, nor take up more space than the space taken up by the name
of the events; sponsorship advertisements may not appear in any publication
with a readership made up of less than 85 per cent of adults, or be broadcast
on radio or television when less than 85 per cent of the viewers are made up of
adults; sponsorship advertisements cannot be put up within a 200-metre radius of
a primary school or high school; sponsorship advertisements cannot use
professional models of less than 25 years of age, and, finally the promotional
material of sponsorship advertisements can only be posted outside during a
relatively circumscribed period surrounding the event.
We believe these amendments are reasonable. Practically speaking, they impose
reasonable restrictions both on sponsors and those who benefit from
sponsorships. We are almost convinced that both sponsors and sponsored events
would be able to live with them, and thus we would keep the millions of dollars
in spinoffs in tourism, the economy and cultural and sports events.
As you no doubt know, according to a study done by Insert Canada Research which
is appended to our brief, that Canadians do not want our events to be crippled
or cancelled. They support us in quite a consistent way in wanting to see
events continue to be sponsored by the tobacco industry.
The 36,266 signatures collected in a few days on a petition that was only
circulated for a few hours, 18 to be precise, in Montreal and in the streets of
Quebec bear witness to the support of the population for our events. It is an
appeal to reason. Allow me to point out that 70 per cent of those people were
In closing, may I remind you that we are submitting these amendments to the
Senate in the hope that you will consider them seriously and send Bill C-71
back to the House of Commons.
May I also add that in France, in spite of the Evin Act which has banned
sponsorships and tobacco industry publicity totally since 1993, there has been
a 13 per cent increase in smoking among young people, which shows that certain
excessive measures can be totally ineffective.
We are at your disposal to answer questions. Thank you.
Dr. Alain Poirier, Host, Radio-Canada Television: I will first present our
group. I will explain how sponsorship sells cigarettes and also make some
comments about why we think no further concessions can be made. After that,
Andrew Cash will show you how the tobacco industry targets young people through
the sponsorship of rock and roll.
Artists for Tobacco-Free Sponsorship is an alliance of over 300 Canadian artists
from all branches of the arts and from both English and French Canada. Our
group includes such prominent Canadian performers, artists and writers as Anton
Kuerti, the well known pianist; singer-songwriter Nancy White; writer and
journalist June Callwood; Governor General award-winning author Charles
Montpetit; and Marc-André Coallier, a well-known television animator.
Our group came together to counter the false impression the tobacco industry has
tried to create that the arts community is united in support of its
sponsorship. There are in fact many members of the arts community who are
fundamentally opposed to tobacco sponsorship of the arts and arts events. Our
group comprises those artists who have chosen to go public with their beliefs.
There are many other artists and art organizations who, while they have not
taken a public stance on this issue, do not support or accept tobacco
I will now switch to French for the core of my presentation. First, I want to
tell you where my information and knowledge come from. I was the host of two
television programs who received over a million dollars in sponsorships each
year. That was more than 50 per cent of our budget. Of course, since they were
TV programs, there was no tobacco sponsorship. Looking for sponsorships is not
easy work, and our producer used to spend a large part of his time doing that.
That is part of the myth that it is possible to find funds. You will recall
that when tobacco products publicity on television was banned in 1972, we were
then supposed to witness the apocalypse; people claimed that television
stations and programs would disappear. How many television stations and programs
do we have now? Their number has increased significantly. The same thing
happened in France. When sponsorships were forbidden in 1992, the Fédération
internationale du sport automobile, which organized the Grand Prix, stated
before the French Senate that the Grand Prix would be withdrawn from that area
in 1993. That threat was made when the French Senate was studying the Evin Bill
a few weeks before the law was to come into effect. Once again, people cried
that the sky was falling. And yet, the French Grand Prix took place in 1993,
1994, 1995 and 1996. We could also mention other countries.
It is easy to claim that the apocalypse is imminent, but after bills are passed,
their actual impacts are not always equal to the claims. We have an excellent
example with television in Canada.
My information is also derived from my other profession; I am a physician with a
specialty in public health. After taking my medical degree, I spent another
five years studying behaviour modification and various preventive strategies
including legislation -- you have an important role to play here -- to modify
Among other things, I took courses on sponsorship, because there is not much
money available for health promotion. I studied with a prominent Montreal
specialist, Mr. Vincent Fisher, who has published books on this topic. We
learned a lot in his classes. I am coming now to the link between sponsorships
and tobacco consumption. First of all, there is virtually no difference between
publicity -- the means are different, but there is virtually no difference --
We showed you one or two of these ads, but there are a whole series of them; if
you ask a child what they are about, in 80 per cent of cases, the child will
answer that they are cigarette advertisements. That is the first answer they
give most frequently. So when a child sees this type of ad and all of the
others like it, he sees cigarette publicity.
So, young people and adults do not see the difference between cigarette
advertisements and ads for events. One Formula I event is advertized in tiny
letters as taking place on June 16, 1996. The ad for the event takes up less
than 1 per cent of the whole surface of the ad. So, publicity and sponsorship
are the same kind of process.
And what does modern publicity offer? Think of all the examples you know. There
is no information on the product; the only result that is being sought is to
create a favourable image. Publicity specialists say that the less useful the
product, the more it depends on its image. One can see why a favourable image
has to be created around a product such as tobacco, in order to influence
consumption. That was to explain the image concept.
As concerns effectiveness, I always quote Vincent Fisher, the sponsorship
specialist, who says that sponsorships are at least as effective as
conventional publicity. Contrary to an ad which interrupts a good film, for
instance, the sponsor reaches the public in a favourable environment. The fact
that the consumer is at leisure, enjoying a pleasant activity makes him very
receptive, and youngsters are even more susceptible, since marketing studies
show that young people are three times more easily influenced by publicity than
adults. The consumer is thus in a favourable environment, and very receptive.
Events are constantly mentioned in articles and news reports, so the media
spinoffs of this visibility are calculated very carefully. Mr. Fisher explains
that they are very important, more so than any publicity. Thus, the funds spent
to reach 1,000 people are more effectively spent in sponsorship than through
publicity. For $1 invested one obtains more media spin-offs than through direct
publicity. So, it acts in a different way, but it is certainly just as
The other advantage of sponsoring events, and you have a good example of that
here, is that it creates a pool of grateful beneficiaries, which is quite
significant. I do not need to say more about that.
Why do young people start to smoke, and what role does the sponsorship play
specifically? The most important thing is to be aware of a danger. All young
people know that tobacco is dangerous. But since the risk is likely to affect
them when they are 35 or 40, they quickly forget about it. There is a problem
that arises when smokers are questioned, specially young smokers; they say that
if it is dangerous, why is it not forbidden, and why is it possible to
advertise it? Even though they are aware of the risk, the risk is diminished
and health-related concerns are lessened when a government does not act as
responsibly as it should, for instance with regard to publicity and
But beyond sickness, death and statistics, that do not impress young people,
emotion holds much greater sway. Emotion has a role to play in peer pressure,
and is important; the whole notion of a favourable or unfavourable attitude
toward a product comes into play here. Publicity and sponsorships and events
create a positive attitude. We know that 20 years ago one could smoke anywhere,
but now this is more circumscribed. But we also know that in countries where
tobacco advertising is authorized, when adolescents are questioned they think
that there are more smokers than there are in reality, if their answers are
compared to the ones given in countries where there is no promotion. The social
norm is thus distorted by publicity and sponsorships. That is another example
where a link can be drawn between sponsorship, publicity, and promotion of a
product and consumption. So, these do have an effect on knowledge and
Tools have been devised and used to measure one's susceptibility to smoking
uptake. If young people are asked whether they are smokers, the results may be
biased, and we do not know what the effect is. There are ways of asking about
susceptibility to smoking uptake, and that is a good predictor of whether young
people will actually begin to smoke. When they are asked, those who have been
exposed to campaigns and events promotions are twice as likely to take up
smoking in the future. This can be measured ahead of time during adolescence,
before they smoke; you can see that exposure doubles their risk of taking up
smoking. That is not the only factor, and we do not claim that it is the only
determining element; price is an important factor, but it is not affected by
this particular bill. There are other factors, but I wanted to insist on the
links between sponsorship and publicity.
But has this been measured? There are many studies which I have quoted that are
somewhat peripheral to the phenomenon. Have we been able to measure whether or
not a link exists? It is difficult, because there are always other measures
possible in a society aside from forbidding sponsorships. There are more than
20 countries that have passed such measures, not Third World countries, but
France, Germany, Australia, New Zealand; comparable developed countries. In some
countries, where they could not isolate, analyze and measure the effect of
sponsorship, an influence has nevertheless been noted; depending on the
studies, some note an effect that reaches 20 per cent in some cases. But
generally speaking, the most serious studies point to a decrease or a decline in
smoking overall, from 5 to 10 per cent. That is not extraordinary, but it is a
step forward, simply due to prohibiting sponsorships and publicity.
Finally, one can see that this has an effect on beliefs, attitudes and social
norms; there is a certain effect, which is not absolute, but it is real.
Perhaps I should tell you exactly why we think no further concessions should be
made. Your committee may be thinking of extending the phase-in period to longer
than 18 months. If the time period were extended, the government would not be
doing arts groups any favours. It would be allowing the dependency to continue.
It would make it even harder for successive governments to ban sponsorships or
even to hold to the restrictions of this bill.
In fact, last week, the person in charge of tobacco control at the World Health
Organization reminded us that the theme last year for World No Tobacco Day was
Sports and the Arts Without Tobacco. As he told us, everyone is looking at what
is happening here in Canada in light of the many successes we have had in the
past. It is certain that when he goes to different countries he will be awaiting
your decision and that of the Canadian government in terms of what can be done
in the tobacco industry. As I said, many countries already have such laws, and
this bill is a good example. A longer phase-in period will allow the tobacco
industry more time to exploit the potential loopholes in the legislation to
their benefit. This is the main reason we think you should adopt the proposal as
Andrew Cash will now show you how the tobacco industry targets young people
through the sponsorship of rock and roll.
Mr. Andrew Cash, Rock Musician and Juno Award-winning Songwriter: Madam Chair, I
have been a musician, songwriter, record producer and journalist in Canada for
over a decade now. Over the last few years, I have also worked quite frequently
in high schools running media literacy workshops.
I am here today because there are few institutions of meaning to which young
people respond. It has been well documented over the last two decades that
religion, education and, with all due respect, government and family life are
institutions that we have seen fracture in our culture. One of the most
consistent and solid institutions of meaning for young people is rock and roll.
Being a musician in rock and roll, I began to notice in late 1994 or early 1995
that the tobacco industry was starting to run sponsorship programs for rock and
roll. I have always been aware of the jazz programs and racing car races, but I
started to take very particular notice of the tobacco industry in rock and roll
because of the clear connection. Rock and roll equals young people; we all know
that. It has not changed in the last 25 years. There are few things that young
people will listen to, respect and acknowledge as much as rock and roll. As sad
a statement as some here may think that is, that is the case. All one needs to
do is go to any high school for a few minutes to understand the full impact
that rock and roll has on youth culture.
In early 1995, Export "A" started to run a program called the Export "A"
Plugged New Music Series. Most of these bands were unheard of at the time. They
offered these bands $500 a night to undercut the costs of their tours, so $500
a night for a tour of 15 cities. This is quite a big country, and, for rock and
roll, it is actually a difficult country to tour. In a sense, it is fertile
ground for sponsorship. Export "A" offered bands $500 a night to do
club tours. In exchange for that, all the band needed to do was put up a
poster, a large banner on the stage, which said Export "A" Plugged New
Music Series. To be honest, you had to look closely to see "Export "A'"
anywhere on the poster. It was done very well.
The key point of the sponsorship program for Export "A" had nothing to
do with the on-site posters. The key point for Export "A" was the
radio advertisement that now could be done: Export "A" New Music
Series Presents blah blah blah at Banff or wherever. Then there was the print
advertising. This was before the Supreme Court decision. Suddenly we saw
advertising in the print media for this Export "A" Plugged New Music
When tobacco manufacturers are targeting young people in night clubs, one must
remember that, of course, you can only be 19 to get into a club. However, in
the shifting sands of rock and roll right now, there is a large movement to do
what is called all-ages shows. Many bands will do two shows in one day. They
will do an all-ages show in the early evening, and then they will do a licensed
show later on. However, the advertising is still the same. On the radio, it
will say, "Export "A" New Music Series presents such and such a
band appearing here, all ages show at 7, licensed show at 9." It is still
the same show. The posters and the banners do stay up at the show. They are
there for the all-ages event as well. This is a real way in which a sponsorship
program directly focuses on young people.
In the first year of the Export "A" Plugged New Music Series program,
$400,000 was funnelled into the program. The following year, the budget
expanded to $1 million, which included a very large tour bus which had the
Export "A" Plugged New Music Series logo emblazoned in quite a
dramatic style. The program increasingly drew more and more into its net. Fewer
and fewer people are willing to speak out on the issue as they take more and
more of the money. We say that the sponsorship itself is as addictive as the
I have known some rocky roads. There is no doubt that it is a difficult grind
for many musicians, and no doubt it is the same for dancers and playwrights. It
is a rough go. However, in rock and roll, prior to the tobacco sponsorship,
things did happen. There were bands, and they did tours. People found out about
them. It was a thriving community. In some ways, sponsorship subverts the
process in rock and roll, because suddenly bands no longer know how they could
tour without Export "A" money because they have become used to it.
That has clearly been the case because we see many bands which could never have
demanded $500 a night to play their shows, and suddenly they are getting $500 a
night. I hear right now that the Export "A" program is not actually
running. I am not sure that is confirmed. However, now you have bands used to
the money no longer getting the money. It is an inflated situation.
I shall leave plenty of time for questions, but I should also state that the
Artists for Tobacco-Free Sponsorship have never advanced the idea that
sponsorship works like this: You go to the du Maurier jazz festival, then you
come home and buy cigarettes. That is, quite frankly, an outrageous idea that
no one from our side has ever put forward. Sponsorship works in its selling of
cigarettes in a much larger way, creating a climate of acceptance. In rock and
roll, there is a direct relationship. You have young people at a very
vulnerable time in their lives, an age when most people start smoking, by the
way. Advertisers are just drooling over themselves to capture sovereignly the
imaginations of young people. That is why advertisers are mediating almost
every event in a young person's life. That is part of the culture in which we
live. However, we are dealing with a product that is well documented as a
Senator Doyle: Mr. Beck, you talked a bit about your venue, which I understand
is Ontario Place. I remember when it was built. They dug the foundations for
the Dominion Centre, dumped them in the lake, and created an amusement park.
One of the first attractions at the park was the weekly jazz and symphony
concerts held outdoors on the hill in a band shell. At what time did the
cigarette companies enter the scene as sponsors? Were they there in the
Mr. Beck: The cigarette companies entered approximately 10 years ago. In the
early days, almost all the funding came from government. The government now
gives less than 10 per cent of the funding to comparable events. These events
get a very small amount of money from government. We are almost entirely
self-reliant. In this approximately $60 million a year business, we get $4
million from the government. We get less from the government now than we get
from the cigarette companies, to be frank.
Senator Doyle: Would it not be true that these are far more expensive events
that are now featured at Ontario Place?
Mr. Beck: They are far more expensive events. They are very big and draw a
tremendous number of people. We do far better as an organization. We contribute
much more to the economy. We get a tremendous number of tourists that come up
to see the fireworks, for example. Between Ontario Place and the fireworks, we
have about 4 million visitors a year. Roughly 25 per cent of them are tourists
who come in from out of the country and bring their dollars to spend in Canada.
Senator Doyle: It is therefore not an entirely cultural consideration.
Mr. Beck: A number of years ago, when government funds were cut, for example, we
had to cancel the symphony. The symphony, unfortunately, does not play there.
One of the banks used to help us sponsor the symphony. We lost that
sponsorship, too, but I have been working in the last year or two to try to get
corporate sponsorship to bring the symphony back, but the government funds are
not there as they once were to do those things.
Senator Doyle: Is it either the government or tobacco companies?
Mr. Beck: No. We do have other sponsors. I get about $3 million from other
sponsors. We work very hard. I have not been successful in even replacing the
cuts to government funds. In terms of the new funds , however, we have a pretty
good record of getting corporate sponsors and we work very hard at it. All
sponsorships together are $8 million, and about $5 million of that would be from
the tobacco companies. The other $3 million comes from about 50 different
Senator Doyle: You said that the rules laid down in the bill we are dealing with
are extreme and unreasonable. What purpose do you think is behind the
sponsorship by the tobacco companies of the various concerts and other grand
events that they are so willing to underwrite?
Mr. Beck: Name recognition and product recognition. Whether or not anyone else
takes up smoking from here on, there are still about 7 million Canadians who
smoke. I am sure this is a battle for brand preference. When an airline company
sponsors Cirque du Soleil at Ontario Place, I do not believe anyone goes out
that day and buys an airline ticket. However, when they do buy an airline
ticket, I assume that Air Canada hopes they will buy their ticket.
Senator Doyle: There is nothing on the poster in front of you to suggest that
that product is any better than any other tobacco product.
Mr. Beck: That is correct. All it does is put the name of the event on there.
There is no product advertising. There has never been product advertising. We
have never been allowed to do anything that promotes products. We would not
want to do that, frankly. We have only been able to promote the event. In that
case, it is a title event. They own the event. It is not my event. We host the
event, just as we host the Indy and other events. It is their event. They could
move it to Buffalo tomorrow if they wished.
Senator Doyle: Would you agree with Mr. Poirier and Mr. Cash that sponsorship
also buys respectability?
Mr. Beck: It probably does buy some respectability. It creates some sense of
goodwill on the sponsor's behalf. That happens with many sponsorships.
Senator Doyle: Would that kind of goodwill translate into product acceptance?
Mr. Beck: I am not sure that link is there. I have asked the minister to provide
us with information in that regard, and we have tried to look carefully at
ourselves as an organization to see if we can find a link between product
acceptance, product use and that advertising. There are many factors that
contribute to a young person deciding to take up smoking, for example. Clearly,
this could play some part in it, but it would be a very small part.
When I was on an open-line program, I remember a caller who said, "Listen,
if anybody should be a tobacco user, it should be me. Since I have been five
years of age, I have been collecting Player's racing memorabilia." He felt
he had one of the best private collections in the country. He started
collecting it at about five or six years of age. His parents were racing fans.
When he got to be 14, he tried smoking, as do many people. He did not stay a
smoker and to this day he is still a Player's racing fan. He has his collection
but he did not become a smoker. Obviously, that is an individual case.
Advertising is probably a factor in smoking, but it is probably one of the least
important factors in terms of young people taking up smoking.
Senator Doyle: How do you react to the point that Mr. Cash made about young
musicians becoming addicted to the sponsorship?
Mr. Beck: I do not know. Much entertainment business nowadays is sponsored by
other companies. In our case, we have a big amphitheatre built by Molson
Breweries, the Molson amphitheatre. Molson Breweries sponsors a tremendous
number of touring entertainers in this country. The fact is corporations are
funding many of these activities.
Sponsorship does have an impact on economics, and, as a whole, we have become a
much stronger country as a result. Our arts have become stronger. Certainly
without the support that we have had from Player's in auto racing, we would not
have a Jacques Villeneuve winning all the Formula 1 races. Whether we like it
or not, or whether we are totally supportive of tobacco sponsorships, they have
done much good work.
The International Fireworks Exhibition held at Ontario Place is
world-recognized. We have people coming up to Canada and spending good money to
see that event. We have worked very hard and we have built it into a major
event. We will do everything we can to maintain that event, but I am afraid the
minute this bill comes into effect, we will be on a downhill slide. We may be
able to save it, but I do not think we will able to sustain the kind of growth
and momentum that has made it such a big success.
Senator Doyle: Are you suggesting that Molson Breweries is responsible for
40,000 Canadian deaths every year?
Mr. Beck: No, I am not. However, there are problems associated with drinking,
too. We work with Molson Breweries on programs such as the Take Care driving
program. We have always tried to have responsible programs to encourage
responsible use of alcohol.
The Chair: I want to ask a brief supplementary question on something Senator
Doyle asked, and that is with respect to the year. You said you thought it was
about 10 years ago that the tobacco interests came in. Were you aware at the
time that that was exactly the time that they had been basically banned from
all other kinds of advertising?
Mr. Beck: I am not sure it was a ban. I am of the opinion that the government of
the day had some wisdom in saying, "If indeed there is to be some sort of
tobacco advertising at all, then let us at least funnel it through arts and
event organizations where it will do some good." Indeed, many of us have
taken advantage of that, made some good out of it and built some incredible
events across this country. The 370 groups that I, amongst others, represent
have done a lot of good with those dollars. I do not think that the government
of the day was thinking when they did that. I assume they did it with some
purpose. I was not there at that time. My staff looked around for opportunities
to form an alliance and to put on some event and promote some event with a
Senator Kenny: I have a lot of sympathy with Mr. Beck and his group. I think
that you are the meat in the sandwich. I think that governments have
systematically cut back on funding for arts and culture. I think that tobacco
companies have craftily moved in and addicted you to their funding. It makes me
angry to see you in a position of acting as a front man for Benson & Hedges.
I think that is an unfortunate position for you to be in and I do not envy you
Do you really believe, Mr. Beck -- and I am tilling some of the same ground as
Senator Doyle -- that tobacco companies are so altruistic that they are
supporting you because they love arts or sports or the Symphony of Fire, or
that they are doing it to sell a product that kills people?
Mr. Beck: I certainly recognize that they receive benefits from their
sponsorship. They get name recognition from it. The difference between a
sponsorship and a charitable gift is that in a sponsorship, the sponsor usually
expects some kind of name recognition. That is what it is all about.
Senator Kenny: Yes, something in return.
Mr. Beck: Absolutely. There is usually some kind of name recognition,
advertising value, or good will by being associated with your organization, et
cetera. Clearly, I do not think we have ever denied that there is a benefit and
a name recognition for tobacco company products.
Senator Kenny: Has it ever occurred to you that the tobacco companies have
systematically organized groups like yours right across this country for just
this occasion? They saw it coming. They knew that they would need support. They
knew that instead of having you folks up here -- because you are the good guys
-- if we had the CEOs of the tobacco companies up here, we would not do a half
hour session. We would spend the whole day, and we would beat them up. Instead,
you are here. You are putting on an event that thousands of Torontonians like.
Other events will go on in Montreal, Toronto or Vancouver that everyone thinks
are terrific. These people have co-opted you to come up here on their behalf,
and they have done it in a systematic way. They planned it ahead of time so
that you would come here on their behalf to put pressure on us as politicians
not to pass legislation to protect the lives and the health of Canadians.
Mr. Beck: That is simply not so. First, I believe that the genesis of a lot of
this was federal legislation which allowed this opportunity. It was not just
cigarette companies being aware that there was an opportunity here. Lots of us
saw an opportunity to work in and develop and promote events.
When it comes specifically to why and how we are here, when the government came
down with the blueprint on tobacco smoking back in Diane Marleau's day, I wrote
immediately asking for a meeting because we were one of the biggest events to
be affected. I was not granted a meeting. A new minister was then sworn in. I
wrote to the new minister asking for a meeting. I wrote and called for months.
There was no dialogue at all with us. I phoned around to other organizations
asking, "Are you being stonewalled?"
I used to work for the federal government. In my day, the federal government was
consultative. They would have brought in groups and organizations and tried to
work something out for both parties. We were absolutely stonewalled. I got on
the phone saying that we must put together some kind of group. If they will not
meet with us as individuals, let us see if we can get together as a group and
maybe they will listen to us then. That was the genesis of it. It was not
initiated by the tobacco companies. We did turn to the tobacco companies and
asked for help because they are our partners, but the tobacco companies did not
come to us and say, "Why do you not get there?" No one from the
tobacco companies called and asked me to do that.
Senator Kenny: They did not have to do that. They knew you would come anyway.
Mr. Beck: Mr. Dingwall probably gave me as much incentive as anyone because I
was totally stonewalled in terms of a meeting. I think it is unconscionable for
an organization this size not to consult with groups given the impact that this
Senator Kenny: I am not trying to let governments off the hook. If it was a
perfect world and if I was king, I would have a transition program. I would
have government funding. I would tax the tobacco companies another buck, not
let them do any promotions, and give you the money to carry on for two or three
years so that you could find other sponsors.
Let me ask you for a minute to be a senator. Come on over and sit on this side
of the table with us. On the one hand, you have given us a case that you are
putting on terrific events everyone likes. Canadians just love the Jazz
Festival and the Festival of Fire. They like all of these things. They cost $60
million. You gave us statistics earlier about what they bring into the economy.
Put that on this side. Remember, you are sitting over here on my side of the
table. Now, put on the other side the $3 billion in direct health costs and
another $7 billion in indirect costs. Add on top of that 40,000 Canadians dying
each year because of the product.
If you were sitting on our side of the table, how would you handle that balance?
Mr. Beck: I would do two things. First, we have provided to you a set of what we
believe would be reasonable restrictions dealing with some of the excesses and
extremes of promotion. It still regulates promotion. We have always been
regulated. It would tighten the regulations a lot from what they are currently,
but it would not be Draconian and virtually stop sponsorship. It would allow
some sponsorship to continue. That would not involve a cost to the government.
Second, I would work with either the government to take some of its funds or the
government to mandate the tobacco companies to take some of their funds and put
them into more education programs. Earlier, there were discussions that
prohibition-style things are over with. You have to be careful that some of
these things are not doing more right now. In certain ways, I think that Mr.
Dingwall has heightened the awareness of this as a forbidden thing. He may be
contributing to the problem right now by the kind of attention he has brought
These arguments are complex, but if you work with young people and launch some
programs, you could have very effective programs like the alcohol companies
do.I think we could have programs that work at reducing the number of new
people who take up smoking.
I am a non-smoker. I tried. My daughters are non-smokers. My mother will turn 80
in a couple days and she smoked all her life. She has tried to stop a few times
and has been able to stop. The doctor tells her all the time to give up
smoking. I have given up trying to tell her. I am not sure if she smokes Benson
& Hedges or not.
Life is like that. A lot of people will not stop, but perhaps we can stop young
people from smoking. Good programs can be developed, and the government can
help steer dollars toward that if it is done well.
Senator Kenny: Thank you, Mr. Beck. You were a very helpful witness.
Senator Nolin: Maybe Senator Kenny could tell us how much money the government
is saving because those 40,000 Canadians are dying every year.
Senator Kenny: Is that a case you would like to make?
Senator Nolin: You should make that case too.
Senator Nolin: Mr. Poirier, there is a small debate going on here in Ottawa
about your membership. You claim to have 300 members; do your 300 members all
agree with what you have told us this morning?
Mr. Poirier: I do not know the exact number, or the names of all 300 members.
However, I can tell you that some received calls from the other party to
pressure them and to find out whether they really were members. I know people
who said no at that time because they saw that there was a problem, and yet
they agreed with the ideas we put forward. But when they had to say: yes, I am
acting in such and such a play, they preferred to say no. I received a call
myself; they were all called, I do not know by whom, and they were asked
whether they really were members. They were asked whether they agreed with what
we were saying. So there have been some very subtle pressures exerted, just as
there were many other subtle things in this whole debate, to know whether the
300 members -- and I have not committed the list to memory -- were active.
Those I know are active. I participated in other activities in the past, so I
cannot tell you exactly.
I asked some friends personally and they said no, they were there in 87, 88.
Since then, there have been some extraordinary investments and they became
members, as we said earlier. They joined for all kinds of reasons, to take part
in plays and various other activities. They are always in the media sportlight
aside from promoting their products, if they are singers -- those whom I am
thinking of -- for all kinds of jazz events. They are always dealing with the
media, they are always close to spokespeople for events that are well known in
the media. It is a small world and it becomes quite difficult to speak against
your neighbour. This debate is not an easy one. As Senator Kenny said, everyone
wants these events to survive, everybody is sympathetic to that cause. Many
artists are as well and need to be told certain things they won't hear
Senator Nolin: You said in your testimony, and Mr. Cash said the same thing,
that there was a well-documented relationship between sponsorships and an
increase in smoking. What studies are you referring to, since we have been
hearing since we began studying this bill that there is only one study -- and
we will be discussing it this afternoon with an expert witness -- that
establishes a link between sponsorship and increased smoking and that if all of
the promotional means are ranked, sponsorship is the weakest, the least
important. You seem to have other information. It is easy to say that something
is well-documented. But in what way? What studies can you point to?
Mr. Poirier: I quoted some earlier. It is difficult to isolate one event.
Senator Nolin: Experts can do that, and psychologists also. We will be hearing
them. Perhaps you are not the best witnesses to give us that information.
Basically, you are saying that there are events that are unfortunately
sponsored by tobacco companies, and others, fortunately, that are sponsored by
beer companies. Mr. Cash did not tell us that the Laurentide rock concerts were
sponsored by the Molson company. That is another debate. There are only 16,000
Canadians a year who die from alcohol consumption as opposed to 40,000 from
tobacco consumption. That is not the issue.
How many Canadians will lose their jobs if tobacco companies stop sponsoring
your events? We will ask others whether there is a psychological link between
smoking uptake and the fact of seeing Benson & Hedges advertise fireworks
in Montreal and Toronto.
Mr. Poirier: Studies look at things from different angles, and it is not easy to
establish a link. Those who have managed to isolate the effect of publicity say
that publicity and sponsorships are interchangeable. It is the same mechanism
that creates an image. If you see an ad for MacDonald's or anyone else, it does
not explain how a BigMac is made. It creates a favourable image about a product.
All publicity functions that way. So do sponsorships. The studies we have come
from countries that have prohibited publicity and sponsorship. Four succeeded
where others could not isolate the effects of publicity and sponsorship. The
results vary between 4 and 10 per cent, and some reach 20 per cent. The best
study that reviewed all of the countries where these measures were introduced is
the Ash report, an English study that reviewed results in different countries.
Senator Nolin: Can you provide us with a copy of these documents?
Mr. Poirier: Of course, it will be a pleasure to send one to you.
Senator Nolin: Studies show that in countries where all tobacco publicity and
promotion was prohibited in the best case consumption remained stable, and in
the worst case, in Norway, unfortunately tobacco consumption increased by up to
45 per cent. It was at 30 per cent before this measure was taken. I'd like to
see your studies.
Mr. Poirier: There are other factors involved in tobacco consumption. If
sponsorship is forbidden as it was two years ago, publicity rebounds. Among
young people in Quebec consumption was at 19 per cent in 1991. When smuggling
was finally brought to a halt -- we know who was behind it, encouraging it --
the figure had reached 29 per cent among young people. I am referring to Quebec.
Those are the figures I am familiar with. A study carried out last spring which
has not been published yet shows that the 19 per cent figure from six years ago
has doubled to reach 38 per cent consumption among young people of less than 18
years of age.
There is of course another factor, which is price, and it played an important
role. However, when we had a general policy to restrict publicity and increase
prices gradually, we noted in countries where such measures were introduced
that there was a decrease in consumption. That is an example at the level of
countries, of course. There are so many factors that come into play that anyone
can say no, there is no impact, in fact it goes the other way.
The more a company invests in publicity the greater its market share among young
people. In all countries where that was measured, the result was the same. When
Marlboro launched its cowboys and independence campaign, it had no market
Senator Nolin: We want to do serious work. We want our opinions to be based on
fact. If you make statements, you have the right to express an opinion, but if
you claim that your opinion is supported by studies, you have to give us a copy
of those studies.
Mr. Poirier: It will be a pleasure to provide them.
Senator Nolin: You talked about smoking in Quebec. I would like to see your
figures, because the statistics we have from Statistics Canada show that among
young people, there has been almost no change, including the period when there
was no publicity.
It is easy to give an opinion. We need facts, opinions based on serious studies.
Mr. Poirier: The Quebec Department of Health carried out a study last year
showing that the consumption rate had reached 38 per cent among young people in
Quebec. In 1991, the same question was asked and the result was 19 per cent.
Those are not my figures.
Senator Nolin: Provide us with documents. We asked the Quebec government, like
all other provincial governments, to appear before the committee to enlighten
us in our debate. No one has yet taken us up on our invitation. It will be a
pleasure for us to study your documents but if your opinion is based on
anything but facts, I am sorry, but that is not how we will be working. We
really want to work using scientific data, valid analyses. That is why we asked
experts to come and testify.
Mr. Poirier: In the documents I gave you you have a copy of the article I wrote
where I quote some of the studies I referred to, which you have not heard
about, obviously, where the four countries that measured the effect of these
prohibitions noted a reduction of 4 to 9 per cent. I will be happy to send you
the source of that data. I quote the study. I will send you the study.
Senator Nolin: I have one last question. Have you read the amendment proposed by
Mr. Poirier: The amendments, the voluntary agreements, the publicity codes, the
programs to reduce illegal sales, all of that is smoke and mirrors. The
voluntary agreements, the recommendations, all belong to the same tobacco
industry strategy: Delay the passage of the bill, and once it is passed, go to
court. That is the first strategy with regard to your role.
The second is to attack the credibility of the messengers and to call them
ayatollahs, or this, that, and the other thing; those are the two universal
strategies. The third one is: never get involved in the debate directly, but
send spokespeople instead. As we said earlier, they are never actually there.
Senator Nolin: The answer to my question is no. You have not read it.
Mr. Poirier: Yes, I did read it, and its purpose is to delay through any
amendment; the bill will be brought back, there will be elections, all the
better if there are amendments and if it is not passed, they will return with a
bill in 10 years, bravo, we will have gained 10 years in Canada. That is the
strategy behind these amendments.
Senator Nolin: It is not the amendment we have before us. It proposes an
amendment to clause 24.1. That is the clause that deals with sponsorship
promotion. I will tell you frankly, during the second round of questions I am
going to put questions to this gentleman to find out what the difference is
between his amendment and the bill because it seems just as restrictive. I will
ask him later. I want to know whether there is any way of arriving at an
agreement on sponsorship.
Mr. Poirier: I did not receive their amendment. What I am saying is that this is
the classic strategy, which is to propose all kinds of amendments constantly.
Can you read clause 24.1 to me?
Senator Nolin: In my opinion, a compromise could be found that would suit
Senator Kenny: Madam Chair, I was trying to do a cross-benefit at the end of my
questions and Senator Nolin jumped in. I want to clarify his position. Is he
really making the case of cigarette companies that smoking is a good thing
because it kills people earlier and reduces health costs?
Senator Nolin: No, no.
Senator Kenny: Let us be clear. What is your position?
Senator Nolin: You are talking about 40,000 Canadians dying each year. I am just
asking how much money we save.
Senator Kenny: Because they die?
Senator Nolin: Yes. That is probably documented somewhere.
The Chair: With the greatest of respect, senators, we should pursue this at
another place and time. Let us concentrate on our witnesses at this time.
Senator Nolin: The minister will tell us that when he appears at the end of our
Senator Beaudoin: You are fighting, quite rightly so, for freedom of expression,
and I agree with you entirely. There is a basic distinction to be made, when
you talk about freedom of expression, between absolute prohibition and relative
prohibition. It is one thing to say that you cannot do something, and it is
another to say that freedom of expression is being restricted somewhat. I would
like you to provide us with some practical examples.
For instance, we are saying: Yes, you cannot use large or very visible print,
but you can still advertise a product. That distinction is important to me on
the legal level because if the prohibition is absolute, certain legal
principles will apply. If the prohibition is relative, or if you are imposing a
restriction, the question has to be asked. This is a societal debate. Is this
acceptable in a free and democratic country such as Canada? Does it run counter
to freedom of expression, does it restrict freedom of expression, but is it
still acceptable? Concerning festivals or artistic events, I would like to hear
some examples from you where you feel restrictions are unacceptable,
unreasonable, et cetera. Can you submit one or two cases? I suppose you can,
since you have proposed amendments.
Mr. Létourneau: Since I am not a lawyer but an events promoter, I would
invite our lawyer to reply. There are certain restrictions contained in clause
24, subsections 1, 2, 3, 4, paragraphs (a), (b), (c) and (d), et cetera. I will
use clause 33 as an example. Clause 33 states that I cannot officially, as the
director general of an event sponsored by a Canadian industry, refer to the
Festival d'été de Québec du Maurier without exposing
myself to a prison sentence. That is unacceptable. Du Maurier will also be
forbidden from presenting the cheque publicly to the Festival d'été
in the presence of journalists. That is unacceptable and impinges upon
corporate and individual freedom of expression.
Senator Beaudoin: If the name appears somewhere in any case?
Mr. Létourneau: I will go back to what Mr. Andrew Cash was saying
earlier. Mr. Cash gave an overview of the major exaggerations on tobacco
products sponsorships. Such exaggerations are made about many other
sponsorships, but we are talking about tobacco this morning.
The amendments we are proposing will for the most part solve the problems Mr.
Andrew Cash highlighted in the majority of cases he quoted this morning. This
bill is divided into four parts: the first one concerns the product, the second
the packaging, the third the accessibility of the product, and the fourth,
sponsorship and promotion.
We do not intend to intervene concerning the first three parts. We are not
specialists. Yesterday you met tobacco industry representatives, and perhaps
you will see them again next week, I do not know.
In clause 24, a clause that concerns us, all the effective restrictions have
been included that could have a negative impact on the value of a sponsorship,
without reducing it to nothing.
Senator Beaudoin: You are ready to accept certain restrictions for reasons
acceptable in a society.
Mr. Létourneau: Of course, we agree with the public health objective, and
we agree that young people have to be protected. Each one of us, the different
events I mean, have to come to terms with this moral issue in one way or
I am the director general of a non-profit organization where 17 members of the
board of directors support me in the work that I do to obtain funds from
private businesses, and they are extremely sensitive to this public health
issue. At the Festival d'été, our young clients, children, will
not find the Festival d'été de Québec du Maurier logo on
T-Shirts, stages, banners, or any other place like that. That is an important
effort that shows that we are sensitive to that objective involving public
health in Canada. Du Maurier has the main stage, it is the title sponsor of the
event, but it sponsors it with relative discretion. Of course, it reaches its
commercial objectives, as Mr. Beck explained earlier. Perhaps there have been
abuses in putting up Mediacom billboards next to a school door. We would
propose that that no longer be possible. Basically, we are asking the government
to police the voluntary code of an industry denounced by Mr. Poirier. If we
need policing services, let's assign them to the right people, in a reasonable
Senator Beaudoin: Mr. Poirier, do you have something to say on this?
Mr. Poirier: You have to have followed this file for a long time to see all the
little holes in the dike and the loopholes, such as sponsorship itself, which
has been forbidden for years. When this debate took place several years ago
with the government, the tobacco industry was asked whether it would not create
companies that would not be called du Maurier, or show cigarette packages, and
whether it did not think that would be one way of going about things. They
answered: No, no, we will not do that. We have the quote, we can provide them
to Senator Nolin.
Senator Nolin: There are no quotes about that in your text.
Mr. Poirier: They answered: we would never do that, create front companies, that
would be immoral. Does the public know that for du Maurier tennis events, or
Player's events, cigarette packages are in no way involved, but non-profit
organizations handle sponsorships? There is an example. In all the countries we
mentioned, in France, for instance, do you know that cigarette advertisements
are forbidden? Now you look at advertisements and you cannot see the
difference. Marlboro advertises a lighter. You have to look very closely to see
that they are advertising a lighter or a pack of matches. If you give them an
inch, they will take a mile. They will never leave the industry with the opening
they are being given. They will never disappear, they would lose their
spokes-people. When the issue was smuggling, would they have left for the
United States? Oh no, this was their issue, cigarettes produced jobs, they have
this many employees. They always say that they are going to withdraw and that
the sky will fall. They cannot leave and stop sponsoring. On the contrary, if
you leave a crack in the door, they will inject even more money in order to
create more allies and be able to better justify what they do, which is sell
tobacco. As far as I am concerned, tobacco industry sponsorships should be
completely forbidden and the money they provide could easily enough be replaced
by a fund as someone suggested. We could have done that. That is not what is
being proposed, for the moment we have decided to try and control freedom of
expression. I know that they will find other means of getting their advertising
out to reach young people.
Senator Beaudoin: Of course, we could have another bill before us. But we have a
role to play as parliamentarians and legislators. We take a bill, we accept it,
amend it, or reject it, and we study it in any event. Many points of view have
been expressed concerning Bill C-71. Opinions are expressed on the bill that is
before the Senate. It is interesting to wonder whether we could do something
else, but that is not what is before us. I asked the question, your answer
enlightened me somewhat, but the task is not an easy one.
The Chair: I have one question specifically to do with the recommendations that
you made for change. I find it somewhat difficult to take you seriously when
you recommend, for example, that no sponsorship promotions can be produced
depicting a professional model under 25 years of age.
If I look at the sports world, I cannot think of a single one that I would want
to use in a promotional sponsorship who is not 25 or more. Elvis Stojko turned
25 last week. Several of our athletes have yet to reach 25 years of age. Where
did you come up with this age?
Mr. Létourneau: I do not know if you saw that on page 2 of the
amendments, they do not talk about publicity aimed at those of less than 25
years of age, but about models or professional actors of less than 25. Why do
not you think that this is a serious measure? We want to avoid any confusion.
The Chair: If I were an advertiser and I wanted to hire someone to promote my
product, I would want a name brand person. Most people have to be at least 25
to have acquired that name recognition.
Mr. Létourneau: There are very young artists who are well known at 19 or
20 years of age. Johnny Lang is a rising star, he is 14 and is all the rage in
the United States, so, theorically, he could be a spokesperson for this. It
says that public spokespersons who are used in advertising should be more than
The Chair: Are you saying it is perfectly okay for sports figures or rock and
roll musicians or anyone else with any prominence in the community to go about
promoting smoking cigarettes?
Mr. Beck: Only if they want to. All the way through this we are concerned that
there be a choice. We are certainly not demanding that people do that, but if
the person were to chose to, yes.
Mr. Poirier: Remember that the Marlboro man, when he was first introduced,
looked 40 years old. He was constructed to give an image of autonomy and of
someone who could take risks and live by himself.
Everything was fine in his life. He was at least 40 or more. Of course, we are
never told that he died of cancer at the end of his life, and that finally he
regretted having done that his whole life. The Marlboro man was not a
well-known figure, not a skater. He was an image created for the product.
I just came back from a country called Albania which we hear about for other
reasons. The Marlboro man is a new one now. He has the same look, is about the
same age, 40 to 45, and is on billboards everywhere. This strategy had been
conceived to get about 1 per cent of the youth market share, and in a few years
they had got most of it. It is the most important company. So there is an
example of a voluntary code that does not work, because what they want to
create are images. You can fill young people's heads with images, whether you
are 26 or 28, it does not matter.
Mr. Cash: I have one response to this whole idea of choice. What we also have to
entertain is the idea that with an onslaught of this kind of sponsorship, the
choices become narrower for artists and arts groups, sports groups and theatre
groups that do not want to take this kind of sponsorship. We see this in rock
and roll with the breweries.
In the early 1980s, there was much activity with the sponsorship of beer
companies and, as an artist, if you did not want to get involved in that kind
of thing, you had the choice. What sponsorship does by its very nature is
eliminate that choice. What we have now in rock and roll and other areas of the
entertainment industry is a situation where the breweries are omnipresent. You
cannot play a rock and roll show in this country without some level of beer
sponsorship. That is a real concern when we start talking about choice.
The Chair: I want to thank all four of you for providing us with valuable
information this morning.
I would invite our next group of witnesses to come to the talk.
Mr. Michael Merrall, Managing Director, Vice-President, Event Marketing,
International Management Group: Madam Chair, members of the committee, thank
you for the opportunity to appear before you this morning in these important
My name is Michael Merrall, and I am the managing director and vice-president of
event marketing at IMG Canada. I would like to talk to the sponsorship market
in Canada and help clarify the ongoing public debate concerning the effects of
a possible withdrawal of tobacco company sponsorship from major events and
sports and the arts.
Let me begin by indicating that I agree with the health objectives of Bill C-71,
particularly as they relate to youth smoking. I am here today, however, to
address the consequences for Canadian event promotions of an effective ban on
tobacco company sponsorships. As I read Bill C-71, it is clear that these
sponsorships will most certainly be jeopardized and hundreds of arts and sports
events will be negatively affected. Many will be cancelled all together.
In order to put my remarks in context, I would like to tell you about a little
bit about my company. IMG is the world's largest and most successful
sponsorship company. I am part of an organization that employs over 2,200
people in 64 offices in 29 countries around the world. We are experts in the
business of athlete representation, sports television and event marketing. We
own, manage, televise, represent the commercial sponsorship rights or consult
to over 2,000 events each year, an average of six per day worldwide. Our office
in Toronto has been operating for 22 years. We have a staff of 25. We are by
far the largest independent sponsorship company in Canada.
Our annual sales are measured in the tens of millions of dollars here in Canada.
We professionally manage the sponsorship sales campaigns for some of Canada's
leading events, including Chrysler "Stars on Ice", the Toyota
Canadian Pro Figure Skating Championships, the Bell Canadian Open, the Export "A"
Skins Game and the du Maurier seniors golf event. We are also a television
consultant to many of Canada's leading organizations, including Tennis Canada,
the Royal Canadian Golf Association and the Toronto Maple Leafs.
In our opinion, it is simply not realistic to believe that most major events
will be able to secure replacement funding from industry categories other than
tobacco companies if Bill C-71 is passed in its current form and tobacco
companies sponsorships are effectively banned. This will lead to the
cancellation of the vast majority of events in Canada that rely on tobacco
This is not idle speculation. This is the qualified opinion of a company that is
in the market 365 days of the year. Allow me to quote some statistics that I
believe will help illustrate my point.
IMG Canada has assembled a database of over 1,000 companies we believe represent
the total universe of event sponsors in Canada. In the past five years, we have
conducted business with 200 of those companies and formed relationships with
literally hundreds of others. We have 10 executives and a sales organization
with full-time staff out in the market every day pursuing sponsorship
The single largest expenditure that any single non-tobacco company has made with
an IMG owned or represented property in the past 22 years is $550,000. I
contrast this figure with the Export "A" Skins Game for which RJR
Macdonald budgets over $2.5 million.
To the best of my knowledge, most of the major events that face cancellation
have operating budgets well in excess of $1 million and many operate with far
The obvious question is why? Why can tobacco companies outspend virtually any
other company ten to one? The answer is that corporate sponsorship of events is
not philanthropy. Companies look for appropriate recognition for the level of
funding they provide.
Tobacco companies have been highly restricted in the ways they can advertise and
promote their brands. We all know that. In virtually every other industry where
these restrictions do not exist, there are numerous other advertising and
promotion options. Consequently, return on investment is compared against any
and all of these traditional means of advertising.
For companies outside the tobacco industry, given prevailing market conditions,
major event sponsorships do not provide adequate recognition for investments of
$1 million and more compared to the recognition that can be accrued from these
other forms of advertising and promotion.
When looking at the $60 million in event annual expenditures made by the tobacco
industry, you must remember a generally accepted rule of thumb in the Canadian
sponsorship industry. For every $1 a company spends on purchasing a sponsorship
property or aligning themselves with an event, they must spend an additional $3
leveraging the event. By that, I mean the companies must reinforce their
association with the event through sales promotions, public relations, ancillary
advertizing campaigns, corporate hospitality programs, employee incentives and
the like if their business objectives are to be met. If they choose not to
spend these additional funds, they run the real risk that their investment will
have been wasted. Stepping back, it means that a $2 million property buy
actually means a company should be budgeting in the neighbourhood of $6 million.
A $3 million buy obviously requires a $9 million budget. It is not hard to see,
at least from my perspective as an individual working in this industry every
day, that these numbers are unrealistic when you take a look at the relative
size of marketing budgets here in Canada.
I remind you again that the largest sponsorship we have ever secured by a
non-tobacco company in 22 years is $550,000. In comparison, we have heard that
Benson & Hedges provides $5 million per year to Ontario Place for the
Symphony of Fire events, and du Maurier provides $10 million per year for
Tennis Canada to run the two national open championships.
By IMG standards, Canada is a small market. Corporations cannot typically sell
enough products here to justify $1 million plus in expenditures. The situation
is far different in the United States and most European countries where the
consumer markets are many times the size of ours. In those countries, companies
in any number of industry categories have the resources and the budgets to
spend at the same level as tobacco companies, and they do.
Unfortunately, Canadian event promoters compete in a world market for
world-class talent, whether it be golfers, tennis players, race car drivers,
musicians, dancers, even comedians. As such, the requirements for fees and
prize money are no different than they are in the U.S., a market 10 times our
size. This makes world-class events astoundingly expensive, and the sponsorship
expenditures it takes to support them are beyond the means of almost every
company in Canada, outside of the tobacco companies.
Although the Canadian market is smaller in comparison to the U.S., there are
many companies here with the financial resources to invest millions of dollars
in sponsorship if they were so inclined. As we all know, for example, the six
major chartered banks all reported 1996 profits in excess of $1 billion. I
would stress, however, that these banks and indeed most major companies are
savvy marketers. They subject event sponsorship proposals to the same rigorous
criteria that they apply to all possible marketing options at their disposal.
Again, their decisions are based on garnering appropriate recognition, and our
experience is that major event sponsorships with budgets of $1 million plus are
simply not supported.
I can tell you that my company has invested many hundreds of hours in the past
16 months on behalf of the Royal Canadian Golf Association -- the RCGA --
seeking sponsorship for the Canadian Senior Open, a highly prestigious new
event on the Senior PGA Tour. We contacted over 150 companies, most of them
Canada's largest companies, and all six major banks. The sponsorship
opportunity was declined each and every time. When all possible alternatives had
been exhausted, the RCGA turned back to du Maurier for the support they needed,
and their contribution enabled the event to be held.
As a sport governing body, the implications for the RCGA are profound. They
count on their profits from large events like this to find the grass roots
development of the sport. If the funding cannot be replaced, the whole sport
As you can see, there are complex issues below the surface.
Now, imagine a market where 370 organizations and 20 major events are all forced
to replace tobacco funding simultaneously. Even if they had the resources of an
IMG to help find the support, the vast majority would fail and there would be
complete chaos in the market. Competition would drive prices down, and the
event industry, at least that part that counted on tobacco company support,
would be decimated.
For those larger, higher profile events, they might find a way to survive. I
stress the word "might". There would likely be a five- to seven-year
transitional period before a new sponsorship structure could be created and
funding could be maximized from replacement sponsors. This was certainly our
experience in 1992 when the RCGA again sought to replace Imperial Tobacco's
money with non-tobacco corporate funding for the Canadian Open. It took the
better part of six years to build a coalition of 14 companies, including Bell,
which is now title sponsor, to replace the former level of financial support.
In this case, we were working to secure sponsorship funding for only one event,
not competing with 20.
The event survived in the meantime only because annual ticket sales exceeded
100,000 per year and brought in millions of dollars of non-sponsor funding.
Unfortunately, few events in Canada have that kind of safety net. Nonetheless,
from a sponsorship point of view, this event is the exception rather than the
rule. Few other events combine the same kind of customer hospitality
opportunities with 105 years of tradition, history and prestige.
I would like to conclude my remarks with a point of view concerning a suggestion
I have heard that tobacco companies will continue to invest in major Canadian
events regardless of the restrictions of Bill C-71. Sponsorship prices are set
according to quantifiable benefits, things such as tickets, hospitality,
signage, television ads, and all the various benefits that come in a package.
These benefits normally account for anywhere between 10 per cent and 25 per
cent of the value. The rest of the price is determined by the promotional value
of the sponsorship, something we call the intellectual property right. Those
kinds of things are image transfer, good will, prestige and positive public
According to the proposed legislation as it currently stands, tobacco companies
will lose the right to advertise their affiliation with an event in almost all
circumstances and hence lose the promotional value and recognition, the
intellectual property value I mention moments ago. What company would proceed
with a seven figure investment in a major Canadian event and then only accrue 10
per cent to 25 per cent of the value? I personally know of no corporation that
would agree to sponsor an event under these restrictions.
Thank you very much for your time. I would be happy to answer any questions you
might have after my colleagues have spoken.
Mr. Rupert T.R. Brendon, Chairman pro tempore, Coalition for Commercial Freedom
of Speech: Good morning, Madam Chair and senators. My name is Rupert Brendon. I
am President of the Institute of Canadian Advertising, one of the founding
members of this coalition. Together with our sister organization, known as the
Association of Quebec Advertising Agencies, our combined membership of
advertizing agencies collectively account for 90 per cent of all advertising
revenue in Canada.
I appear before you today as the Chairman pro tempore of the Coalition for
Commercial Freedom of Speech. Our organization currently comprises the
following advertising associations and media: The Outdoor Advertising
Association of Canada; Canadian Magazine Publishers Association; CTV; Maclean
Hunter; the Toronto Sun; and both the Institute of Canadian Advertising and the
Association of Quebec Advertising Agencies, to which I referred.
It probably would have been less trouble if we and the other intervenors did not
object to Bill C-71, did not criticize it and simply let it become law.
However, if the 1995 Supreme Court of Canada decision in RJR-Macdonald v.
Canada has any validity, the coalition cannot sit back and let Bill C-71 pass
without a challenge.
We believe Bill C-71 is fatally flawed in at least three respects. First, it
unreasonably limits the number of media permitted to carry tobacco brand
advertising and tobacco sponsorship advertising. The selection of permissible
media is arbitrary and unjustified. The exclusions are arbitrary and
Second, the bill creates criminal offences. However, by crafting the bill in
language that, at worst, is almost impossible to understand and, at best,
highly obscure in its meaning, the advertisers, their agencies, and the media
are severely handicapped and prejudiced.
Third, if indeed the government is sincere about permitting, not banning,
tobacco brand and sponsorship advertising in Canada, Bill C-71 adopts the worst
kind of restrictions and disregards advertising pre-clearance, which is the
most sensible approach to regulation.
We have all been told not to worry about the obvious deficiencies in Bill C-71,
that regulations to the act will clear up the ambiguities and eliminate the
problems and contradictions in the underlying statute. However, one must be
sceptical that this is not just a smoke screen to deflect legitimate criticisms
which need to be taken seriously. If the basic blueprint, namely the statute, is
significantly flawed, then the regulations cannot make it right. A leopard
cannot change its spots.
To the members of our coalition, the key question following the demise of the
TPCA was never whether there should new tobacco advertising legislation to
replace the TPCA, and our coalition does not oppose a regulation of tobacco
advertising or tobacco sponsorship advertising per se. The principal objectives
of Bill C-71 are decent and eminently supportable.
To the coalition's members, the legitimate questions to ask are these: What kind
of legislation will Bill C-71 be? Is this bill a fair and reasonable way to
accomplish its stated purpose? One is tempted to ask: Is it equitable? By what
mechanism will Bill C-71 be implemented? Finally, are its deficiencies curable
before the patient dies?
When the Honourable David Dingwall, the Minister of Health, appeared before this
committee on March 19, he referred several times to the 1995 Supreme Court of
Canada decision in RJR-Macdonald v. Canada. As the honourable minister
observed, the Supreme Court determined that restrictions on the promotion of
tobacco products are a legitimate means to achieve the government's health
objectives. With that premise, our coalition totally agrees.
However, the minister went on to say that such curbs are an appropriate response
to the health impact of tobacco. With the latter very broad statement, one can
hardly agree. What curbs could the honourable minister be referring to? The
Supreme Court of Canada has not yet officially seen, let alone ruled on, Bill
C-71, so the Supreme Court of Canada cannot be blessing Bill C-71 in advance.
How the Supreme Court of Canada would react to this bill remains to be seen. At
most, the words "such curbs" can only refer to reasonable laws as in
the statement, "Reasonable laws are an appropriate response to the health
impacts of tobacco."
The honourable minister also said that 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' right of
freedom of expression, but that such arguments do not stand up because the
proposed legislation does not ban tobacco promotion but actually allows product
Honourable senators, let us question these declarations to see whether they
actually stand up. Is it reasonable or necessary to prohibit newspapers, the
majority of magazines, point of sale, billboards, and other outdoor media for
use in tobacco product advertising? Does anyone acting reasonably know for
certain what advertising content will not appeal to persons under 18 years of
age? Is it fair or reasonable to impose severe criminal law sanctions if,
without guile or intent, one makes the wrong guess? Does anyone know with
certainty what is meant by the phrase "tobacco product and its
characteristics"? Can anyone feel more sanguine after reading in an
official government document that certain government officials doubt the
legitimacy of some factual informational statements about lower yields of tar
in cigarettes, a statement which, though absolutely true, is, according these
government officials, deceptive and therefore actionable under Bill C-71 if
expressed in advertisements?
How often does one come across an advertisement which does not associate the
advertised product with a way of life -- for example, a way of life that could
include glamour, fashion, recreation, sailing, eating, excitement, or risk and
daring such as snowmobiling, skiing, or snorkelling? Putting the question
another way, has one ever seen an advertisement for any consumable product that
does not evoke a positive or negative image of a way of life or that does not
evoke a positive or negative emotion about a way of life?
Lifestyle advertising as divined in clause 22 is really a definition of brand
advertising in general, and to prohibit it, as it is prohibited in Bill C-71,
is, in effect, to ban tobacco product advertising. That is the very same thing
the Honourable Minister of Health told you would unreasonably violate the
tobacco companies' right of freedom of expression, if it were doing it as we
allege. This is the very principle, the most fundamental of rights, that the
Supreme Court of Canada said must not be violated.
Let us say we have not totally convinced you that the effect of this advertising
is to ban tobacco product advertising. We ask you: Is it fair and reasonable to
require tobacco product advertisers and tobacco sponsorship advertisers to be
in doubt about the propriety of their advertising? Would a reasonable person
gamble his freedom and a $300,000 fine on the possibility he is right but he
might be wrong? Would it not be fair and reasonable, would it not be prudent,
would it not be cost-effective, and would it not produce an all-around better
result if tobacco advertising were pre-cleared under a review procedure which
paralleled the U.K. system of tobacco advertising pre-clearance? That, in
Canada, has been blessed by the same ministry of health as being appropriate and
desirable for food and drug products and is used for a host of other products
and services that are regulated in the interests of maintaining the good health
of all Canadians.
Senators, our coalition put Part IV of the bill to the test. We wanted to know
what kind of tobacco product advertisements were possible given the constraints
of Part IV. We asked three prominent Canadian advertising agencies to create
tobacco brand advertisements that met the requirements of Part IV or that at
least did not appear to run afoul of clauses 19, 20, 21, and 22. We reported on
this test in the written brief we filed with you. The bottom-line result was
that there was no unanimity of opinion amongst the group as to whether the ads
did or did not comply, nor was any member of the agencies and coalition
convinced that any of the ads were safe from prosecution under the bill. They
agreed that they could not recommend to their clients that the ads were safe to
run, especially since the consequences of error of being found criminally wrong
were so severe. The only agreement amongst us concerned the few ads that we
thought would not fly. You might be surprised at the ads we turned down using
the provisions of Part IV as our only yardstick.
On behalf of the coalition, I have now highlighted some of the issues which we
refer to in more detail in our filed brief. With your permission, I would like
Mr. Engle to take the questions that will be directed at me. He is an
advertising regulation expert and the coalition's legal advisor. He can respond
to the senators' questions at the appropriate time. Thank you for granting this
The Chair: Thank you, Mr. Brendon. It is acceptable that your legal counsel take
Mr. Pénisson, please proceed.
Mr. Nicholas Pénisson, President, Société d'affichage
Flashmédia: I represent Flashmédia, a business my father and I
founded in 1986 in Montreal.
Our publicity displays can be found in retail businesses that sell candy,
groceries, magazines and cigarettes.
In ten years, our display network has expanded throughout the country. We now
have 13,000 signs that can be seen from Quebec to Vancouver. Those 13,000
display signs provide work for 25 employees who contribute to the income of our
various suppliers. Those 13,000 signs, developed over the past ten years, have
cost us $1.5 million in investments.
An important percentage of those who use our publicity supports come from the
tobacco industry. I would like to mention that we still owe the tidy sum of
$1.4 million. We strongly hope that our banker will continue to be
understanding once Bill C-71 has been passed.
This very strict bill would have, as you can imagine, very damaging consequences
What I find deplorable in this bill, and this is why I am here today, is not the
government's objective to reduce smoking among young people of less than 18,
but the lack of consistency in the means it intends to use to reach its
Nothing has to date proven a cause and effect relationship between tobacco
publicity and an increase in cigarette consumption among young people. On the
contrary; allow me first of all to give you some statistics and facts:
In British Columbia, tobacco publicity has been regulated since 1972, and yet
the percentage of smokers there is no different from that in other Canadian
The previous law on tobacco products control in 1988 completely eliminated
tobacco publicity, and yet, in the seven years that followed, the number of
smokers increased considerably among young people.
Finally, five European countries imposed a total ban on tobacco advertisements,
and in each of those countries there has since been a slight increase in the
overall consumption of tobacco.
Where are the scientific references that allow the government to state that
controlling tobacco advertisement will contribute to decreasing consumption?
I would like to draw your attention particularly to a point that clearly brings
out the ambiguity and contradictory nature of this bill. Still under the
pretext of preventing young people from taking up smoking, publications whose
readership is made up of 85 per cent or more of adults could continue to
publish tobacco advertisements.
That minimum number of adult readers leaves us somewhat skeptical about the
remaining 15 per cent, which would be made up of non-adults. I conclude that it
would be made up of young people of 18 years or less.
In any case, what does readership mean when a company publishes a full-page ad
on the back cover of a magazine? That page, you will admit, is accessible to
hundreds of people who have never read a single line of the magazine or daily
Paradoxically, in the waiting rooms of dentists or doctors, the same magazines
can be found. Are those places reserved for adults only? What can we do about
Will we have to force health professionals who rent such places to destroy the
controversial advertisements in the magazines they put at the disposal of their
Let's imagine that Bill C-71 applied to another sector of economic activity,
such as the automobile industry, for instance.
The text of the bill would say to manufacturers: from now on, you will be
forbidden from publishing advertisements where people appear. We will censure
any reference to luxury by forcing you to cover your vehicles. You will from
now on have to warn the consumer that driving an automobile is dangerous, and
can provoke serious accidents leading to severe injuries or death. No more test
drives, and you are forbidden from advertising your prices. The government will
control everything by imposing excise taxes that will triple or quadruple the
sale price of your product.
And the same analogy could be applied to the beer, wine and spirits industry,
To summarize, the bill as it stands now can only lead to consequences that will
be catastrophic for some, while not necessarily allowing you to reach your
Will forbidding the display of cigarette advertisements not have the opposite
effect, that of attracting young people to cigarettes even more than before?
Temptation is that much stronger when you are dealing with a forbidden product.
While we agree that we should take steps -- we already have done so by
scrupulously respecting the self-regulation of cigarette manufacturers that
forbids posting ads within 200 meters of schools -- we oppose the total ban on
tobacco advertisements in this bill because the bill is much too vague and
ambiguous, and contains an ill-thought-out list of superficial measures that
mask the real problems that cause young people to take up smoking.
It is essential to ensure that this law is fair for everyone.
Mr. David C. Pigott, President and Chief Executive Officer, Eddy Match Company
Limited: Madam chair and honourable senators, my name is David Pigott. I am
President of the Eddy Match Company as well as co-owner of the firm. I know
little about legal and constitutional issues and will leave those to my more
knowledgeable fellow panellists. However, it might be helpful for you to have
some appreciation for the collateral damage that the legislation might
unintentionally cause, and so I will restrict my comments to something I do
know a bit about: the economic impact on a single company like Eddy Match. In
order for you to appreciate what Bill C-71 means to us at Eddy Match, I want to
tell you a little bit about our company and what we have been going through in
our fight to stay in business.
Eddy Match was founded 146 years ago just behind Parliament Hill in Hull,
Quebec. In the 1920s our operations were moved up the Ottawa Valley to
Pembroke, Ontario, and at approximately the same time the business was sold to
British interests. The company remained in various foreign hands until two
years ago when the former owner called me to tell me he had had enough of the
match business and Canada and would I please find him a buyer for the company.
The obvious choice was to sell out to our American competitors who would have
immediately shut the factory and moved the business into their plants south of
the border. My partner, the company CFO, and I negotiated an alternate deal
which saw the two of us buy the company, and in doing so we have managed to keep
not only our own jobs but those of 123 other people who would otherwise be out
The vast majority of these people would likely have gone on UIC and then
welfare. For the most part, these are workers skilled at making matches but
little else, and they live in an economically depressed region in the upper
Ottawa Valley where jobs are scarce. Many are older workers who have had little
experience outside Eddy Match. Their average age is 48 and over one-half our
employees have more than 25 years with the company. I am fond and proud of these
people but, realistically, given their skills, their age, and the location in
the upper Ottawa Valley, they are unlikely to be retrained for anything more
than counter help at McDonald's or Becker's.
The economic climate of the past decade, combined with municipal bans on smoking
in restaurants and bars, have resulted in a relatively dramatic decline in our
customer base. If you cannot smoke in a restaurant or bar in Toronto or New
York or Los Angeles, the operators do not bother to reorder their matches. We
suffered another major hit with the influx of very inexpensive plastic
disposable lighters from the Far East, primarily from mainland China. Due to
the export of those cheap lighters from the Far East, we closed a plant and
laid off 56 people in 1995, about the hardest thing I have ever done. This year
over 60 million plastic lighters will enter Canada to be used and thrown in the
garbage. You cannot recycle them. That represents approximately 600 jobs that
used to exist in the Canadian match business. Finally, since the new year, we
have been hit with a price war in the grocery store match market as cheap
product is now flooding in from Chile under free trade and as American
manufacturers try to drive us out of business in order to gain a larger piece of
the declining market.
Through all this, the employees of Eddy Match have not given up and we have
continued to fight to keep our jobs. The one market that has kept us alive has
been tobacco-related advertising, especially with the resurgence of orders from
Canadian tobacco companies following the elimination of TCPA. These orders are
either in the form of advertising matches given to retailers directly by tobacco
companies or the sale of advertising space on matches which we then sell to the
retailers. If we had not had that tobacco-related business over the past year,
I would not be here today. When the TPCA banned tobacco advertising last time
out, we laid off approximately 25 people -- about $1 million in payroll in
Pembroke, Ontario. If it is banned again or if matches are effectively
eliminated as an advertising medium, I will be laying off 125.
Tobacco companies like match-based advertising because it is very focused. It is
directed right to their consumer group of existing smokers, and with match
advertising they get a large number of advertising impressions for a relatively
low cost. It is a terrific vehicle for brand-to-brand competitive advertising.
Given that it is such a useful means of advertising directly to smokers, we
have even offered the advertising space to the federal government so that they
can get their health message out to Canadian smokers. Unfortunately, we have
made no sales to date. Non-smokers, on the other hand, rarely pick up matches
at convenience stores counters. From our perspective, when non-smokers need a
match, they generally buy our branded and private label product from grocery
and hardware stores -- that is, the wooden matches, not book matches.
My company's concerns with Bill C-71 relate primarily to clauses 29(a) and (c),
which state that no tobacco manufacturer or retailer shall offer or provide any
free gifts, premiums, et cetera, to encourage the purchase of a tobacco
product; nor can they furnish an accessory, such as matches, that bears a
tobacco product-related element -- I think that means a brand -- without
consideration. In other words, you must charge for the matches. Retailers are
often in the habit of allowing customers to take matches which have been
supplied to the retailer by the tobacco companies as a convenience to the
customers buying the cigarettes.
It is unclear whether clause 29 makes it a crime to leave matches on the retail
counter space for any customer to take whether or not they buy a pack of
cigarettes. It is clear, however, that a retailer allowing only purchasers of
cigarettes to take matches would be in violation. It seems ridiculous. We are
talking a penny match here. In light of threats of $50,000 fines and prohibition
from selling tobacco products for one year, it is unlikely that retailers will
take the chance of offering matches free to customers who want them, thus
exposing themselves to prosecution under Bill C-71.
The fear and confusion over this issue has already begun to cost us orders even
before the legislation is implemented. Some store owners have refused
product-bearing tobacco advertising because they do not want to take any
chances that they might get hit with the proposed fines should these products
still be in inventory in their stores. While it seems ludicrous that the corner
store owner could be fined tens of thousands of dollars because a counter clerk
did not collect a penny for a match, many store owners will not risk it. They
are too frightened of the legislation. Tobacco companies are also being
extremely careful as they are unsure if they can give matches to those stores.
Since this legislation was announced, we have seen large numbers of tobacco
orders cancelled or put on hold as tobacco companies debate back and forth as
to whether it is an allowable form of advertising and whether they can give
matches to corner store tobacco retailers. Approximately 25 per cent of those
tobacco-related orders are for sponsorship events such as auto racing,
finishing, tennis, golf, music or whatever. If the legislation kills tobacco
advertising related to sponsorship at retail, you automatically kill that
business for our company.
Our major concern is the vagueness of Bill C-71 and the uncertainty that is
created as a result. Given that uncertainty, and in light of the severe
punishments that the legislation threatens, I believe my customers, the tobacco
companies and the tobacco retailers, will err on the side of caution and not
buy my product. Therefore, I am asking that clause 24, which bans matches at
retail that promote sponsored events, and clause 29, which prevents a retailer
from giving away a pack of matches with a purchase of cigarettes, be either
eliminated or redrafted to clearly allow the free provision of this advertising
I am not arguing that there is not a legitimate need to control tobacco
advertising, just that the proposed legislation is in need of more work so
that, in controlling how tobacco is advertised, you do not unnecessarily harm
businesses like Eddy Match. I can quite bluntly tell you that if we lose our
tobacco advertising sales, we will not survive, and one of Canada's oldest
manufacturing companies will cease to exist.
The Chair: Honourable senators, our final panellist today is Mr. Gallop, who
asked if he could appear this morning because he had something to contribute
that would not be addressed by other individuals on this panel.
With that restriction in mind, Mr. Gallop, please make your representation.
Mr. Peter Gallop, Chairman and CEO, Gallop & Gallop Advertising Inc.:
Honourable senators, I am here today representing 1,100 colleagues in the
Outdoor Advertising Association of Canada, an organization founded in 1903 and
representing 40 companies that operate in 275 communities across Canada with
over $200 million in annual revenues. Like many others, we agree with the
purpose of Bill C-71, but we believe it can be improved without detracting at
all from its stated purpose.
You have now a copy of our OAC brief. I will not review it in total but would
like to draw your attention to a few points that are unique to our unique
Incidentally, the coalition covered part of our presentation. We will not be
repeating that, or I will try not to do so. Basically, the coalition was
concerned with content of advertising; we are concerned with the form of
advertising. We are the media. We are being asked to place the adds. It is quite
a different situation.
First, many provisions of the bill relating to our industry are unclear. For
example, the terms "advertising" and "promotion" are
defined broadly while the terms "signs" and "publication"
are not defined at all. We do not know which term applies to our medium, to the
Minister Dingwall said to this committee that details would be all spelled out
in future regulations. He also said Treasury Board requires that affected
parties be consulted, but we have not seen these regulations and we have not
been consulted. He also assured this committee that the proposed regulations
will be debated by a future Commons committee, but it is not clear how this will
allow us any input.
Second, on page 4, paragraph 14 of our brief, we make the point that except for
sponsorship, there are no transition periods or proposed proclamation date. It
is physically impossible for our industry to achieve immediate compliance with
Bill C-71. We are not a printing press that can be turned off. We have
long-term obligations to fulfil. We suggest a transition period for outdoor
advertising to October 1, 1998, the same as has been granted to sponsorships.
Third, on page 5, paragraph 15, we make the point that outdoor advertising is
totally banned by Bill C-71, not restricted. Outdoor advertising is one of the
very best and most economical ways for events to promote ticket sales by
reminding people of the dates and locations of the event and by attracting
tourists, visitors, and others who are unlikely to know about the event
When Minister Dingwall presented to this committee, he asked you the following
questions: "How much is enough? How many billboards, banners, flags,
posters, bus panels, street-level kiosks and newspaper and magazine ads bearing
the tobacco brands are required to ensure the commercial viability of sponsored
We do not know the correct answer to the minister's question, but zero is surely
not the correct one. Bill C-71 prohibits entirely all billboards, banners,
flags, posters and street-level kiosks for tobacco-sponsored events,
notwithstanding the fact that the event sponsor's name can only appear on the
bottom 10 per cent of the copy area and will be therefore virtually illegible.
Surely, total prohibition is excessive and contrary to the Supreme Court's
Fourth, page 7, paragraphs 23 to 25, and also in Appendix E, concerns a new
research study about billboards that was published a month ago. Billboards are
located on heavy traffic roads and commercial areas designed to reach people in
automobiles. The recent independent Canadian research study done throughout
1995 and 1996 provides an accurate measurement of the billboard audience.
Actually, this is the first time this has ever been done. I might add that it
was not done for the purpose of this bill. The results show that 94 per cent of
potential viewers of billboards are adults -- that is, 94 per cent of all the
people passing all our billboards are over 18 years are of age. Bill C-71
allows tobacco advertising to run in print media having an 85 per cent adult
readership. Billboards greatly exceed that threshold and should be included in
the exemptions to this bill. To accomplish this, we suggest that outdoor
advertising be treated with the same rules and definitions as all other
publications or print media.
Finally, the big question, since outdoor is the only medium that is essentially
being totally banned by Bill C-71, the big question is: Does outdoor
advertising influence the decision to begin smoking? The Minister of Health
said to this committee, "We are not dealing with the Girl Guides of Canada;
we are dealing with the tobacco industry, which is one of the most
sophisticated you will find anywhere in the world, comparable to the Pepsis and
Coca Colas and Nikes". I found this remark somewhat demeaning to the Girl
Guides of Canada, an organization that should be on the minister's front line
of defence against tobacco. He should be supporting the girl guides with the
same kind of money that he spends to support the Non-Smokers Rights Association
-- it would probably do him more good.
Also, I regret to disappoint the minister, but Coke, Pepsi and Nike collectively
spend less than 4 per cent of their advertising budgets on outdoor advertising,
precisely because they want to target youth, and outdoor advertising reaches
Throughout the debate on Bill C-71, different opinions have been offered
regarding what really influences people to take up smoking, but opinions are
not sufficient. The onus should be on the government to provide proof, and
Senator Nolin made that point again this morning.
You also heard yesterday that after 70 days of Supreme Court hearings, there was
no proof that advertising does in fact create a basic demand to begin smoking.
The government's own 1994 youth survey offers no mention of advertising,
sponsorship advertising or billboard or outdoor advertising as reasons why
youth start smoking, and neither does the government's November 1996 background
document on youth smoking, behaviour and attitudes. This is included in Appendix
C of our brief.
We have also included, in Appendix D of our brief, the summary of the study of
22 countries done by U.K. researchers over 27 years which determined that in
those countries with full tobacco advertising bans, consumption of tobacco
products actually increased slightly. The same, as you heard yesterday, applies
to Canada during the TCPA from 1989 to 1995. Incidentally, the same has been
true in British Columbia since 1972. There has been a total prohibition on
advertising on billboards, in newspapers and in all media except national
magazines, and smoking in British Columbia has essentially remained the same as
in other parts of Canada since that time.
Many experts think that smoking by young people may increase as a result of
prohibitions on advertising, which tends to make smoking more clandestine. You
have heard that opinion expressed. A second theory is that the health warning
lines are also eliminated when ads are banned and perhaps their constant
presence does discourage some young people from smoking.
I have a third theory, and that is that maybe some of the advertising is so bad
that it puts people off; it removes the curiosity factor for young people
because they are not enticed to try that product.
I am sorry to say that to the advertising industry, but it is a fact.
The bottom line is that there is a lot of evidence that smoking will not decline
as a result of banning outdoor advertising or sponsorship for tobacco products,
and if smoking does not decline, the argument that this is purely a health bill
also disappears, as does the argument that it may not do any good, but it will
not do any harm because we know, as we have heard from many witnesses, that it
will do harm. It will cost the economy jobs and money.
Finally, the OAC sought a legal opinion from Teplitsky, Colson, barristers. It
is an eight-page opinion found at Appendix B of our brief. It is also
summarized at page 2, paragraph 9, of our brief.
It will not surprise any senators that the opinion of our legal counsel is that
Bill C-71 does infringe the Charter in many areas. It also, I hope, will not
surprise you that they say it can be easily fixed. Of course, that is our
objective in coming here today.
In summary, we ask senators to consider fully all the amendments offered, in
particular the following: First, support the amendments of the Alliance for
Sponsorship Freedoms as guidelines for sponsorship promotion because their
guidelines conform closely to the Charter provisions. Second, provide for equal
treatment of outdoor advertising with other print media. Third, establish a
firm date for Part IV of the bill to come into force. We are recommending
October 1, 1998. Fourth, in the conclusions of our brief, on page 9, we
recommend strongly that the government spend considerably more than it now does
on anti-smoking promotions, especially as part four of the purpose of this
brief is "to enhance public awareness of the health hazards of using
We do not think the sole responsibility for this should be left with the tobacco
companies themselves. If Minister Dingwall admires Coke, Pepsi and Nike, he
must be prepared to spend on anti-smoking promotions the same amount of money
that they spend to promote their products which, incidentally, was $78 million
The $5 million to $10 million that the government has been spending or proposes
to spend annually is a pittance for a problem of this nature. It represents
less than 0.002 per cent of the money the government collects from tobacco. To
put it another way, it also represents less than 30 cents per year per Canadian
on anti-smoking education programs. It should be, in our view, $3 per Canadian
at least, which would be $90 million. We believe that every Canadian would
agree with that, even Paul Martin. Of course, it would also help other
companies at this table, such as Eddy Match.
The Globe and Mail reported two weeks ago that Minister Dingwall recently spent
twice the amount he is planning to spend on anti-smoking promotion, i.e., $20
million, to create 300 jobs in his riding of Cape Breton. Unless Bill C-71 is
amended, he will be destroying thousands of jobs without reducing smoking one
Please amend Bill C-71.
Senator Nolin: Have you been consulted by the Department of Health? Have you
asked to be consulted? Have you offered your help?
Mr. Brendon: We have not.
Mr. Pigott: I am not an advertising agency, a coalition or a lawyer. I just run
a small company. I tried many times over the past months to see someone in the
minister's office or the department or the minister himself. I was stonewalled;
I got nothing. I was really surprised that I was invited here. It is very
Mr. Brendon: We applied to appear before the Senate committee as the Institute
of Canadian Advertising as well as the Coalition for Commercial Freedom of
Speech. We were accepted as the coalition and that is what we are appearing as.
Senator Nolin: In Bill C-71, the government has made an immense effort to
explain legally what you are doing, but have you been consulted?
Mr. Brendon: Not at all.
Mr. Gallop: We did ask to be allowed to appear before the House of Commons
committee on health.
Senator Nolin: I am talking about before the bill.
Mr. Pigott: We knew nothing about the bill until it surfaced about the end of
November. We did request a meeting at that time with the Minister of Health. We
got a meeting with one of his assistants on this file. It was interesting to
note that she sent dossiers to all the other people we were meeting with that
day, telling the other side of the story. I guess she was doing her job. That is
all we can say about that.
Senator Nolin: Mr. Brendon, your members are probably producing the government's
anti-smoking advertising. Do you know what effect that advertising has?
Mr. Brendon: I am not sure who is creating that advertising, and I am not aware
of any studies that say it has been effective. On the contrary, everything I
have heard in the last two days suggests that the prevalence of smoking is
Senator Nolin: You agree with me, do you not, that members of your coalition are
receiving huge advertising contracts from all governments trying to inform
young Canadians that starting to smoke is bad?
Mr. Brendon: Absolutely.
Senator Nolin: Do you agree with me on that?
Mr. Brendon: Yes.
Senator Nolin: But you have no data telling us whether that money spent by the
government is effective.
Mr. Brendon: I have no information on that. I have no evidence that it is
effective or that it is even being measured. I cannot explain anything about
Senator Nolin: My last question is probably to Mr. Engle.
Reading your brief, you say you did an experiment with your members.
Mr. Brendon: Yes, sir.
Senator Nolin: With all the conditions that were given to the ad agencies to
prepare some print advertising, where is the real problem? What is not clear in
Mr. Rafe Engle, Legal Counsel, Coalition for Commercial Freedom of Speech:
Reducing it down to its simplest element, I suspect the real problem is in the
definition of "lifestyle advertising". There is a lack of certainty
over how far it should go and what it catches within the net. As well, there is
a concern that you cannot create advertising effectively, or if you can create
advertising at all, it will offend against that definition in the bill.
As we said in the submissions this afternoon, both written and oral, there was
no consensus. We did not know how we could succeed. We came to the consensus on
clear evidence of samples of advertising that would fail.
Oddly enough, even an advertisement that featured a health warning on the bottom
of a package and nothing else, in the general opinion of professionals
regarding the proposed statute, would have been offensive and therefore created
a liability, which is nonsense. We agreed it was nonsense.
There are many issues and problems. You have heard them paraded before you, and
you will hear more before the week is out. Essentially, the problem we have is
a lack of certainty and a tremendous amount of confusion about the ambit and
the extent of the prohibition. We are particularly concerned about issues
arising in connection with lifestyle advertising and the added notion that
lifestyle advertising, as it may on some reasonable interpretation, apply or
become interesting to kids.
Senator Nolin: More specifically, you are talking about the definition in clause
Mr. Engle: Yes. We were also concerned about a lack of certainty, clarity, or
predictability about the combination, for example, of clause 20 with some
apparently innocuous references.
When you consider that the advertising agencies may well be caught up in the net
of culpability and that their concern is, like the media, that there is a
responsibility which they do not deny, they want to ensure that before they
start to venture into the lion's den, they can acquit themselves of
responsibility for their own work and their clients who pay their bills.
Senator Nolin: What is your opinion of the catch-all clause 19?
Mr. Engle: Enormous concern. If you do not get us coming, you will get us going.
This is not a question of catching.
The direction to all of the advertising agencies was, "Look, our
responsibility is to act responsibly, to create effective but measurable
advertising that does the job and satisfies the requirements of law." When
we were presented with a proposed bill that wanders in so many different
territories, the limits of which are not clear and certain, we find ourselves
not only confused but concerned.
If that were the beginning and the end of it, if there were no other answer, we
would try to make recommendations to you about how particular clauses might be
modified, adapted, clarified or made more certain. However, better systems are
available. That is what provoked the coalition to assemble as a coalition and
the ICA to make representations about borrowing from existing experience
elsewhere in Canada and abroad in search of a better system of regulation.
Senator Nolin: Does the coalition support the objective of the bill?
Mr. Brendon: Yes, absolutely.
The Chair: Mr. Pigott, like you, I am not a lawyer. When I read clause 29, I
want to assure you that I have the same understanding of clause 29.
My reading of that clause is that tobacco companies cannot advertise on matches.
However, hotels and restaurants could advertise on matches, as well as stores
or anyone else selling a tobacco product. Is that how you interpret that
Mr. Pigott: Yes. The minister has clarified and stated that the legislation
would not prevent a restaurant or hotel from advertising on matches. The
problem is, they do not fit the bill any more; the tobacco companies keep us
going. If I lose that, I am toast.
Senator Lewis: I presume you are all familiar with the Tobacco Products Control
Act which was passed in the 1980s and upon which the Supreme Court passed
judgment on certain sections thereof. That act maintained a total ban on
advertising of tobacco products. Are you all familiar with that?
Mr. Gallop: I am to a certain degree.
Mr. Brendon: Yes.
Mr. Merrall: To a certain degree.
Senator Lewis: That act must have had quite an effect on you, the same as the
present bill might have. You must have all been concerned about that act when
it was passed.
I get the impression this morning that you seem to be surprised by this
government's initiative in Bill C-71, whereas the former legislation was
probably more Draconian.
Did you make any representations at the time that act was presented as a bill? I
believe it was in Parliament for some time before it was actually enacted.
Mr. Brendon: That was before my time.
Mr. Gallop: In many ways, Bill C-71 is more Draconian because of the catch-22s,
because of the various clauses that do not work with one another, because of
the vague wording of the lifestyle requirements and because of the ban upon
sponsorship as well as advertising. As I mentioned in my presentation, there is
no transition period. We tried to appear before the House of Commons committee.
As you may know, it was a very shortened hearing. They tried to race it through
in two days, and only about five or six witnesses received a chance to appear.
A year before that, while they were drafting the legislation, why did they not
call Mr. Brendon and say, "Given that you represent 90 per cent of all the
advertising agencies in the country, what would you like to see in these
regulations"? Why did they not speak to our industry that represents 99 per
cent of all billboards in this country and ask us for some input? We would have
given the input.
We would like to see specific and clear-cut restrictions. As other people have
said, we agree with the objectives of the bill. We believe there should be some
restrictions and regulations on tobacco advertising but not total prohibition.
Being in the industry, we know how to control those things better than some
government officials working in a vacuum, but they do not seem to want to talk
to us in this industry. Just as you heard yesterday, they do not want to
consult with the tobacco manufacturers themselves.
Senator Lewis: You did testify on the previous act.
Mr. Gallop: We were called as witnesses at the Commons health committee and
again at the Senate committee. I believe a different Senate committee reviewed
the previous legislation, but very few changes were made. The only thing we got
was a two-year transition period as a result of those representations.
Senator Lewis: Over the years, you must have been aware that various governments
were very concerned about this situation.
Mr. Gallop: Yes, I was very aware of that.
Senator Jessiman: Mr. Merrall, of the 64 offices in the 29 countries, which of
those countries have bans on tobacco advertising? Is it true that the United
States will place a ban on tobacco sponsorship of both the arts and sports?
Mr. Merrall: I am not equipped to provide an answer to that question. My
responsibility within IMG is the Canadian market. I am not actively involved in
our businesses in the United States or Europe. It would be very difficult for
me to answer that, as much as I would like to.
Senator Nolin: Maybe you could get that information for us.
Mr. Merrall: I would be happy to.
The Chair: If you can, we would be delighted to receive it.
I want to make it clear to those of you who are assembled as to why you were
selected to appear. As you can imagine, some individuals were accepted to be
witnesses before the Senate committee. The steering committee, comprised of
Senator Lewis, Senator Nolin and myself, wanted to ensure that every point of
view be represented, not that the same point of view be represented 15 times.
That is why we are pleased, Mr. Gallop, to have you appear today because you
seemed to say something much different from what other panelists have said.
That is the basis upon which the witnesses were chosen.
As you know, our hearings will continue the rest of this week and into next
week. We will try to hear from all points of view, and we thank you for
presenting your points of view today.
Senator Nolin: Mr. Gallop, I will say to you what I said to Mr. Poirier. When I
read page 7 of your brief, in paragraph 24 you state, "...although
advertising is an adult print medium." Who says so? You?
Mr. Gallop: No, this is independent research study.
Senator Nolin: Tell us. My kids see those billboards.
Mr. Gallop: That is a good question and a fair question because I did not have
time to cover it in detail.
The study was done by Trend Search Group Inc.They were retained by the Canadian
Outdoor Measurement Bureau. It was done for other purposes. It was done to find
out the demographics of our audience for our general purposes. It had nothing
to do with this bill. The study was done on week days, prime-time traffic,
non-prime time traffic -- that is, rush hour traffic and non-rush hour traffic
-- evening traffic on week days and weekend traffic. It carefully balanced all
of those different things.
Senator Nolin: Have they surveyed pedestrians?
Mr. Gallop: Yes. We have surveyed pedestrians as well. This study did not survey
pedestrians, but pedestrians only account for about 2 per cent of our total
audience. The survey of pedestrians suggests that about 15 per cent of
pedestrians are youths or under 18 years of age. If you take the 94-per-cent
figure in the automobile traffic and add that to the 15 per cent of pedestrians,
you would still be at 93.35 per cent.
That is one of the restrictions we would be prepared to make, senator. We know
which panels have heavy pedestrian traffic. We would be prepared to say that we
will not post any tobacco advertising on pedestrian-type panels, just as we
have agreed not post anywhere near schools or 200 metres from schools. That is
the kind of thing we are talking about.
The study looked at 88,500 cars in 12 different cities across Canada, so it is
an extensive and major study. The researchers stand by the road at randomly
selected points in each city. They is a computer random selection process. Then
they write down the number of occupants in the car and make a visual
observation on whether the person is over 18 or under. Of course if somebody is
35 or 25, it is very easy to do. In fact, they broke it into more age groups
than that, but the only one we are concerned with here is over and under 18. We
think it is very accurate. In fact it is probably plus or minus 1 per cent in
degree of accuracy. You could check with the group that did the study or with
the Canadian Outdoor Measurement Bureau, or I could get more information for
Senator Nolin: Your contention is that that is the reason why Coke and Pepsi are
not billboarding. They are not doing that because it is not reaching their
Mr. Gallop: It is not reaching their target audience.
The second thing is they have an advantage that the tobacco companies do not
have of being allowed to use the broadcast media, particularly television. They
can selectively target programs which are more oriented to youths, and so it is
more efficient for them.
The Chair: The study measured vehicle occupants. Why did it not measure school
buses? If you want to see kids and take a look at what they are doing, why
would you only study vehicle occupancy, 95.6 per cent of which are adults?
Mr. Gallop: Very few school buses go by billboards, senator, even if you include
all of the school buses.
The Chair: I beg to differ. As a former teacher, I know that a lot of school
buses went by billboards. They had an enormous influence on the youngsters.
Mr. Gallop: They are not looking at them.
If the Department of Health would consult with us, we would gladly restrict or
allow for a complete prohibition on transit advertising because we know kids
ride in buses and on subways. That is an example of the kind of thing we would
like to sit down and be part of. We are an affected party. As I said in my
prepared comments, we would like to interact with people on those kind of
things, but we do not know who to talk to.