Display bans on tobacco products limit freedom of expression, but justifiably so

R v Mader’s Tobacco Store Ltd, 2013 NSPC 29 (1 May 2013) (Nova Scotia Provincial Court)

Summary

The Nova Scotia Provincial Court has upheld the validity of a law prohibiting tobacco vendors from displaying tobacco products. The Court found that although the law limits freedom of expression, such limits can be demonstrably justified in a free and democratic society.

Facts

The decision concerns a provincial law prohibiting tobacco vendors from displaying tobacco products. Mader’s Tobacco Store breached the law by displaying tobacco products in a manner that failed to comply with the display restrictions. However, the store claimed that the display restriction constituted an unjustifiable violation of its freedom of expression, protected by the Canadian Charter of Rights and Freedoms.

The court had previously ruled that the display restriction did infringe the store’s freedom of expression. However, section 1 of the Charter allows rights to be limited to an extent that is “demonstrably justified in a free and democratic society.” The remaining question to be determined by the Court was thus whether the rights limitation was justifiable in the requisite sense.

Decision

The Court cautioned against applying a rigid formula when assessing the justifiability of a particular rights limitation. Whilst emphasizing the importance of a flexible, contextual analysis, the judgment sets out the general criteria a limitation on a Charter right or freedom must satisfy in order to be deemed reasonable and demonstrably justified.

The objective pursued by the rights limiting law must be substantial and pressing. Further, the means utilized to pursue the objective must be reasonable and proportionate. In assessing a rights limitation for reasonableness and proportionality, the court must balance the interests of society with those of individuals and groups. The court must assure that:

• the measures adopted have been carefully designed to meet the objective – they must not be arbitrary, unfair or based on irrational considerations;
• the measures must impair the right or freedom as little as possible; and
• the rights limitation must be proportionate to the objective it pursues.

The Provincial Court referred to a line of authority from the Canadian Supreme Court emphasizing that the level of protection to which expression is entitled under section 1 of the Charter will vary with the nature of the expression. The Provincial Court considered that the display of tobacco products was a form of commercial expression which, the Court reasoned, is not as protected as political expression.

The Court proceeded to examine the objectives of the legislation, the stated purpose of which was “to protect the health of Nova Scotians, and in particular young persons, by restricting their access to tobacco products and protecting them from inducements to use tobacco”. The Court found that this objective was clearly “pressing and substantial”.

The Court proceeded to examine the connection between the measures and the objective they pursue. The statistical data produced was inconclusive as to the impact of the display ban. However, the Court noted that because the ban is part of a comprehensive and multi-faceted strategy designed to reduce tobacco consumption, the effect of the display ban is not independently measurable.

The Court was also mindful of expert reports pointing to the fact that former smokers or smokers trying to quit can easily be triggered by cues such as tobacco displays, driving them to impulsively consume tobacco products. Paradoxically though, the Court also considered evidence that graphic health warnings placed on cigarette packages have some deterrence value, so removing cigarettes from display also removes health warnings from display and potentially undermines their deterrence value.

Despite this apparent conundrum, the Court found that on the balance of probabilities there was a rational connection between the rights infringing law and its objective of reducing tobacco consumption.

The Court then turned to consider the notion of minimal impairment; whether the display ban restricted the freedom of expression more than was necessary. The Court acknowledged that when tackling a complex social problem such as tobacco consumption, the requirement of minimal impairment is met as long as the legislature has chosen one option within a range of reasonable alternatives – in effect, the legislature is given some leeway.

In this instance, the law states that communication between vendor and customer is far from prohibited – a customer can still obtain information from the vendor directly, or by looking at a magazine or price list which states the price and brand of cigarettes sold. This legislation therefore pursues the objective of reducing tobacco consumption while still allowing for freedom of expression, even though that freedom has been narrowed in order to tackle a pressing and substantial issue.

Finally, the Court considered the related question of proportionality - whether the benefits of the rights limitation outweigh the deleterious effects. The Court observed that unlike other consumer products, such as alcohol, there is no safe level of tobacco use. Nicotine is a highly addictive poison that is unsafe when consumed as intended. Therefore when freedom of expression is used for the purpose of selling harmful and addictive products, its value is tenuous. The benefits of the legislation in pursuing the objectives of reducing disease, disability and death clearly outweighed, in the Court’s view, the deleterious effects of limiting freedom of expression.

On the basis of these considerations, the Court found that the limitation imposed on the freedom of expression by the tobacco display ban was reasonable and demonstrably justified in the sense required by section 1 of the Charter.

Commentary

The decision turned on the Court’s application of section 1 of the Canadian Charter, the terms of which are very closely reflected in section 7(2) of the Victorian Human Rights Charter. Section 7(2) requires a similar approach to questions of the proportionality and justifiability of rights limitations as that followed by the Nova Scotia Provincial Court.

The decision confirms the importance of assessing the proportionality and justifiability of rights limitations in context – the balancing exercise is complex and delicate and courts are required to closely examine the extent to which rights are limited and the extent to which such limitation further some important objective.

Also of note was the Court’s observation that the importance of freedom of expression varies depending on the nature of the expression sought to be protected.  It was the court’s view that ‘commercial expression’ warrants a lower degree of protection than other forms of expression, particularly political expression.

The full decision can be found at: http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html

Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.