Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Canadian Charter – Freedom of expression – Freedom of commercial expression – Commercial advertising relating to tobacco – Whether ss. 18, 19, 20, 22, 24 and 25 of Tobacco Act, S.C. 1997, c. 13, in whole or in part or through their combined effect, infringe s. 2(b) of Canadian Charter of Rights and Freedoms – If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society within meaning of s. 1 of Canadian Charter of Rights and Freedoms – Whether provisions of Tobacco Products Information Regulations, SOR/2000-272, governing size of required messages infringe s. 2(b) of Canadian Charter of Rights and Freedoms – If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society within meaning of s. 1 of Canadian Charter of Rights and Freedoms – Whether s. 22(3), when read in context of Part IV of Act, constitutes unjustified infringement of manufacturers' freedom of expression – Whether requirement that warnings occupy 50% of display surface violates manufacturers' freedom of expression and, if so, whether government has met its burden of justifying increase in size of warnings.

The Respondent tobacco manufacturers challenged the constitutionality of the Tobacco Act, 45-46 Eliz. II, c. 13, as amended in 1998 by the Act to amend the Tobacco Act, 46-47 Eliz. II, c. 38, as well as of the Tobacco Products Information Regulations, Canada Gazette Part II, Vol. 134, No. 15, SOR/2000-272, 26 June 2000, and the Tobacco Reporting Regulations, Canada Gazette Part II, Vol. 134, No. 15, SOR/2000-273, 26 June 2000.

These statutory and regulatory provisions were enacted by Parliament following RJR-MacDonald Inc. v. Canada (Attorney General), in which the Supreme Court of Canada ruled that the statutory scheme then in force, which, among other things, prevented manufacturers from engaging in information or brand-preference advertising and required them to endorse information that was not their own, was an unjustifiable infringement on their freedom of commercial expression under s. 2(b) of the Canadian Charter.

The Superior Court dismissed all the manufacturers' arguments. A majority of the Court of Appeal declared certain portions of ss. 18(2), 20, 24 and 25 of the new legislation to be of no force or effect. These provisions concern, more specifically, promotion disguised as scientific works, promotion "likely to create an erroneous impression," and the use of a manufacturer's name for sponsorship purposes.