Court of Appeal of Quebec

Procureur général du Québec c. Gallant

Pelleter, Cotnam, Moore

Application for leave to bring new evidence. Granted. Appeals from a judgment of the Superior Court declaring paragraphs 1 and 12 of section 2, subparagraphs 4, 8 and 9 of section 24, and paragraph 3 of section 24 of the Tobacco Control Act (CQLR, c. L-6.2), as well as paragraph 2 of section 6.4 of the Regulation under the Tobacco Control Act (CQLR, c. L-6.2, r. 1), to be constitutionally invalid. Principal appeal allowed and incidental appeal dismissed.

The respondents challenged the constitutional validity of certain provisions of the Act to bolster tobacco control (S.Q. 2015, c. 28) or the Tobacco Control Act it amended. On the principal appeal, the Attorney General of Quebec (AGQ) challenges the declaration of invalidity of the provisions of the Tobacco Control Act and the Regulation under the Tobacco Control Act. In its incidental appeal, the Association québécoise des vapoteries (AQV) argues that sections 2 and 3 of the 2015 Act are ultra vires the jurisdiction of the Quebec legislator and infringe the rights to security, inviolability and freedom of expression. In the alternative, the AQV argues that subparagraph 1 of section 21 of the Tobacco Control Act violates the rights to security and inviolability, and that paragraphs 1 and 3 of section 6.4 of the Regulation violate freedom of expression.

Sections 2 and 3 of the 2015 Act are valid and operative from the perspective of the division of powers. The intrinsic and extrinsic evidence shows that the purpose of the 2015 Act is to protect public health, particularly that of young people. The Act does not concern only electronic cigarettes, and their regulation is merely one element of the reform of Quebec legislative policy on tobacco control. Equating electronic cigarettes with conventional cigarettes or tobacco is one aspect of the anti-tobacco strategy. The legal effect of the 2015 Act is to associate electronic cigarettes with the same risks as cigarettes, in terms of both the dangers of the product itself and its potential incidental effects on the use of tobacco or the normalization of smoking, not to supress electronic cigarettes by introducing a new offence. The area of health is an aggregate of subject matters that fall sometimes within federal jurisdiction, and sometimes within provincial jurisdiction. The impugned provisions can therefore be connected to both the criminal law and to any purely local or private matter, based on the common objective of protecting public health. The trial judge rightly found that the Quebec legislator could intervene in its own areas of jurisdiction. The Tobacco and Vaping Products Act (S.C. 1997, c. 13), like the 2015 Act, seeks to strike a balance between the protection of non-smokers and the potential benefits of electronic cigarettes to their users as a means to stop using tobacco or to reduce the harm it causes. There is therefore no conflict between the federal statute and the 2015 Act, and they may co-exist.

The trial judge erred in finding that the prohibition against testing electronic cigarettes in stores and clinics constitutes an infringement of section 1 of the Charter of human rights and freedoms (CQLR, c. C-12). The state of the law and the judge’s own observations did not support a finding that the right to inviolability is infringed. It fell to the respondents to establish that the lack of testing is an impediment that interferes with smokers’ inviolability. The judge’s findings do not establish an "insufficient causal connection" within the meaning of Canada (Attorney General) v. Bedford (S.C Can., 2013-12-20), 2013 SCC 72, SOQUIJ AZ-51029079, 2014EXP-30, J.E. 2014-21, [2013] 3 S.C.R. 1101, between the measure and the infringement is not evident from the judge’s findings. Had there been an infringement, it would have been justified under section 9.1 of the Quebec Charter. The judge, faced with contradictory and uncertain evidence as to the risks of electronic cigarettes and their effects on the health of users, erred by failing to allow the legislator room to manoeuvre or to grant sufficient deference to the strategy it had adopted. There is a rational connection between the prohibition against testing in stores or clinics and the legislative objective sought, notably the protection of non-users. The prohibition against testing also meets the minimum impairment test. This test does not assume that there is only a single least intrusive solution, and the legislator has room to manoeuvre to manage uncertainty. Finally, the assessment of the deleterious effects of the testing prohibition on smokers, compared to its salutary effects of neutralizing or eliminating the risks associated with electronic cigarettes to users and third parties, weighs in favour of upholding the legislative measures.

In this case, it is admitted that subparagraphs 4, 8 and 9 of section 24 and paragraph 3 of section 24 of the Tobacco Control Act violate freedom of expression. The debate concerns the analysis of the justification. The purpose of the first three provisions is to prevent electronic cigarettes from reaching a public other than smokers, particularly young people, which constitutes a justified infringement of freedom of expression. As for subparagraph 3 of section 24, the judge did not really analyze the impugned provision, which merely requires that a warning be placed on vaping products. Rather, he considered the contents of the warning set out in a regulation that was not challenged. Because this content was amended in 2019, the judge’s conclusions can no longer stand.

Paragraphs 1, 2 and 3 of section 6.4 of the Regulation concern the conditions under which an operator of a business may display electronic cigarettes visibly to the public. The judge found that paragraph 2 of section 6.4 infringes freedom of expression, and that this infringement is not justified because it is possible to display products in a way that targets only smokers. The different fates of paragraphs 1 and 3 on the one hand and paragraph 2 on the other results from the meaning the judge gave to the notion of "expressive activity". Although this notion must be give a broad interpretation, it must be applied to an activity which conveys a meaning. The AQV has not established that the purpose or effect of paragraphs 1 and 3 of section 6.4 is to limit the freedom to convey a message or a meaning, and the judge was right to find that they do not violate freedom of expression. As for paragraph 2 of section 6.4, product display is a promotional activity protected by freedom of expression, and there is infringement in that case. However, the obligation to ensure that product displays are not visible from outside the store is justifiable and serves in particular to avoid circumventing subparagraph 9 of section 24 of the Tobacco Control Act. Paragraph 2 of section 6.4 of the Regulation is valid, and there is cause to intervene on that point.

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