The case has two appellants: the first appellant is RJR Macdonald Inc and the second appellant is Imperial Tobacco Ltd. The defendant is the Attorney General of Canada. The two motions of appeal were consolidated and heard together in the Quebec Supreme Court.

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The provisions of the Tobacco Act that came into force in 1989 prohibited all forms of advertising and sale of tobacco products in Canada unless the package of the cigarettes included a list of chemical composition and toxic constituents. The legislature mainly targeted advertising, labeling and promotion. The regulations also required cigarette manufacturing companies to provide visible health warnings on the dangers of cigarette smoke. This negatively affected the business operations of tobacco companies who sought a declaration that the Tobacco Act was a violation of the constitution. This is because of the feeling that their profits would reduce since they could not engage customers on new products and services. The provisions would also make it difficult for the companies to operate because the environment was constricted.

History of the Action
The appellants first presented their matter before the Quebec Superior Court. The Superior Court ruled that the Tobacco Act was ultra vires the Parliament of Canada. The Superior Court found that the act was not enforceable and was an infringement of the right of self expression. The Attorney General appealed this ruling in the Quebec Court of Appeal. The matters of determination in the Supreme Court included: whether Parliament had the power of enacting the act under the criminal law power or the peace order and good governance power; whether the Tobacco Act was an infringement on freedom of expression; and if it infringed on freedoms, whether this infringement was cured. The Court of Appeal entertained this appeal and found that Parliament had legal competence to enact this act under the powers that were questioned; the court also found out that the infringement of the act to freedom of expression could not be demonstrably justified. It was after this ruling that the appellant filed an appeal in the Supreme Court of Quebec.

The issue is whether the Tobacco Act infringed on freedom of expression and if yes, then was this cured by Section 1 of the charter. The second issue was whether ban on cigarette advertising was valid under criminal law.

The court ruled that ban on advertising was indeed valid under criminal law. On the question of whether the act infringed on the freedom of expression, the court found that some sections including sections 4, 8 and 9 infringed on the freedom of expression and this infringement was not cured by section 1 of the charter.

The reasoning of the court was that the purpose of the act was not to regulate the tobacco business. Rather, the act is limited to advertising of tobacco products. The act was therefore valid under criminal law. The sections 4, 8 and 9 violated provisions of freedom of expression. The right to freedom of expression includes the right to say nothing.

Regulation of public health is an important government concern that falls under the purviews of criminal law. This means that criminal law is very broad.

Federal laws prohibiting tobacco advertising and requiring visible health warnings on tobacco labels are an infringement on the freedom of expression. This infringement cannot be cured by section 1 of the charter.

Valid criminal law bans a harmful activity. For this case, tobacco advertising was controlled and regulated to reduce the harmful effects of cigarette smoke on Canadian citizens.

  • RJR Macdonald Inc V. Canada (Attorney General) 1995 3 SCR 199, Vanlii 64 (SCC)