Canada is not only one of the leading countries in prohibition of the smoking advertising, but is also a huge advocate of the second part of the tobacco problem - the health of the Canadian citizens. They are protected by the Tobacco Damages and Health Care Costs Recovery Act, which allows the government and lawyer to sue tobacco companies for breach of duty to recover costs on the health care system for people suffering from tobacco related illnesses. This act was found constitutionally valid in the Supreme Court of Canada decision on the British Columbia v. Imperial Tobacco Canada Ltd. case in 2005. This historic case had its first turning point on June 5, 2003 when the Supreme Court of British Columbia found that the Tobacco Damages and Health Care Costs Recovery Act violates the territorial limits of provincial law and was unconstitutional. The decision was overturned in May 2004 be the Court Of Appeal, on the basis that the pith and substance, ie. the dominant characteristic, of the canadian law fell under the property and civil rights provision of the Constitution Act, 1867. Imperial Tobacco continued the struggle and on June 22, 2004 the company appealed to Supreme Court of Canada. They were supported by four other tobacco companies and the Canadian Tobacco Manufacturers’ Council. The Supreme Court of Canada agreed to hear the case.
The Supreme Court reviewed three main issues:
1. Is the Act ultra vires the province by reason of extraterritoriality?
2. Is the Act constitutionally invalid as being inconsistent with judicial independence?
3. Is the Act constitutionally invalid for violating the rule of law?
The answer for all the three was negative and on September 29, 2005, the Supreme Court of Canada upheld the decision of the Court of Appeal. The Tobacco companies clamed that the Act was retrospective and retroactive and violated the rule of law by creating an unfair trial. They also felt that legislation should neither target a particular sector nor confer special privileges on the government. The Constitution protects the rule of law and so it does not require that Act ensures a fair civil trial or avoids giving the government advantages. The Supreme Court found this conception amorphous and claimed that accepting it would render several more narrowly formulated provisions of the Charter redundant. The Court dismissed the suggestion that a shift in burden to the accused or the unconventional rules of procedure and evidence created by the Act will have any effect on Judicial independence. The Head of Supreme Court found that pith and substance of the Act was within the authority of the province under section 92(13) of the Constitution Act, 1867. The subject of the Act, compensation for health costs, and the effect, suing companies who harmed those in the province, must be under the regulation of the provincial law. So find a lawyer for you if you require compensation for health costs.
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