News release

February 19, 2007

British Columbia has it right: Tobacco advertising should not be considered ‘free speech.’

(Ottawa) – Physicians for a Smoke-Free Canada (PSC) today praised the British Columbia government for being the only government to argue before the Supreme Court that tobacco advertising should not be a form of protected speech under the Charter.

On February 19th, 2007 the Supreme Court of Canada hears arguments in the decade-long challenge of tobacco companies against the 1997 Tobacco Act, a law which restricts but does not ban tobacco advertising. 

"The federal government as well as the other 5 provincial governments and the Canadian Cancer Society which are intervening in this case have strongly defended this legislation, but have not sought the court's guidance or permission to strengthen it, said Callard. "Only the government of British Columbia has argued that tobacco advertising is so clearly intended to encourage Canadians to engage in harmful activities that it is not appropriate to class it as a type of free speech envisaged by Canada's charter." 

The British Columbia government is the first and only provincial legislature to pursue claims against tobacco companies for the damages caused by their products.  While the legal reforms adopted by British Columbia to pursue this case have been copied by several other governments, none other has yet taken the legal plunge into actual litigation.

The arguments filed with the Supreme Court by the British Columbia government are all the more important given the context with which this hearing is taking place, says PSC.

"There are two reasons why we hope that the court will listen closely to B.C.'s arguments,"  explained Callard.  "The first is that the legislation is out-dated, inconsistent with scientific evidence, and a breach of Canada's international obligations to impose the most stringent advertising ban constitutionally permitted. The second is that the tobacco companies self-imposed restraints on tobacco advertising can be expected to end the moment this court case is resolved."

Clearing the legal air about the constitutionality of a comprehensive ban

"The popular belief that Canada's constitution does not allow tobacco advertising to be banned is not an interpretation of the 1995 Supreme Court ruling with which we agree," said Callard. "The Court did not rule that there could never be a total ban on tobacco advertising, only that it had to be justified with evidence. Moreover, the narrowness of the court decision at that time showed that there was significant support for a ban should evidence be produced. The Supreme Court was split 5-4 in its 1995 ruling against a total ban.

Although Health Minister Diane Marleau promised, in 1996, to re-introduce a total ban and provide sufficient evidence to satisfy the court, her successor, David Dingwall, under great pressure from Quebec arts and sporting events, backed down and introduced a weaker bill.

Now, ten years later, the evidence in favour of a total ban on tobacco advertising is stronger and more voluminous.  The new evidence led Judge André Denis in his Quebec Superior Court decision in favour of the Tobacco Act in December 2002 to state, "A close reading of all the opinions handed down by the Supreme Court in the first case, together with the evidence introduced at this trial indicates that a total ban on tobacco advertising would be much more easily defended now than in 1989."

Canada accepted an international obligation to clarify whether it had the constitution authority to comprehensively ban advertising when it ratified the FCTC on November 26, 2004, says PSC.  The FCTC states, "Each Party shall, in accordance with its constitution or constitutional principles, undertake a comprehensive ban on all tobacco advertising, promotion and sponsorship." The treaty obliges the Canadian government to adopt a comprehensive ban on tobacco advertising before February, 2010 if this is within its constitutional authority.

''Only British Columbia is providing the Supreme Court with an opportunity to clear the legal air in time for this obligation to be met," said Callard.

Many other countries which similar constitutional principles as Canada have now adopted comprehensive bans against tobacco advertising -- including all the members of the European Union, New Zealand, Australia, India, South Africa.

Paving the way for renewed tobacco advertising.

PSC cautions that a court victory for government in this particular case will not be a loss for big tobacco.  That's because the law which is currently before the courts allows for many forms of tobacco advertising.

"The major tobacco companies that are before the courts are refraining from using the forms of advertising that are still legal in Canada because doing so would harm their argument before the court," explained Callard. "However, other smaller companies which are not to part the court action, are placing advertisements. These actions signal the weaknesses in the current law and the vulnerability of Canadians to future advertising by the major companies once this court case is settled."

 An example of recent legal tobacco advertising in Canada are the campaigns by the National Smokeless Tobacco Company for its Skoal, Bandit and Access brands. Canada is one of the very few modern democracies outside of the United States and Japan which continues to allow tobacco advertising.

"British Columbia is the only Canadian government  seeking to move the legal and constitutional questions beyond 1995 and into the 21st century" said Callard. "We hope the judges will be similarly forward-looking."


To assist the media and the public who might be interested in this case, PSC is providing web access to the arguments filed in court.  (Additional documents can be obtained by calling the number below).

Available are:

Federal government:

Provincial governments

Tobacco companies

The Canadian Cancer Society

For further information, contact Cynthia Callard or Neil Collishaw at 1 613 233 4878