2021 QCCA 1701, 2021 QCCA 1701

Unofficial English Translation of the Judgment of the Court Procureur général du Québec c. Gallant 2021 QCCA 1701 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-010034-194 (200-17-023732-167) (500-17-093397-167) DATE: November 15, 2021 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. GENEVIÈVE COTNAM, J.A. BENOÎT MOORE, J.A. ATTORNEY GENERAL OF QUEBEC APPELLANT – INCIDENTAL RESPONDENT – Defendant v.

VALÉRIE GALLANT CANADIAN VAPING ASSOCIATION RESPONDENTS – Plaintiffs and ASSOCIATION QUÉBÉCOISE DES VAPOTERIES RESPONDENT/INCIDENTAL APPELLANT – Plaintiff and THE CANADIAN CANCER SOCIETY INTERVENER JUDGMENT [ 1 ] The Attorney General of Quebec appeals from a judgment of the Superior Court, District of Quebec (the Honourable Daniel Dumais) rendered on May 3, 2019.

The Association québécoise des vapoteries has filed an incidental appeal. [ 2 ] For the reasons of Moore, J.A., with which Pelletier and Cotnam, JJ.A. agree, THE COURT: [ 3 ] DECLARES admissible the World Health Organization Report titled “WHO report on the global tobacco epidemic, 2019: Offer help to quit tobacco use”; [ 4 ] ALLOWS the principal appeal; [ 5 ] DISMISSES the incidental appeal; [ 6 ] Each party to pay its costs, except for the preparation of the joint schedules, the cost of which will be equally divided between the Attorney General of Quebec, the Canadian Vaping Association, and the Association québécoise des vapoteries.

FRANÇOIS PELLETIER, J.A. GENEVIÈVE COTNAM, J.A. BENOÎT MOORE, J.A. Mtre Jean-François Paré LAVOIE, ROUSSEAU Mtre Dominique A. Jobin Mtre Caroline Renaud DIRECTION DU DROIT AUTOCHTONE

For the Attorney General of Quebec Mtre Daniel Payette CABINET PAYETTE For Valérie Gallant and the Association québécoise des vapoteries Mtre Audrey Boctor IMK For the Canadian Vaping Association Mtre Geneviève Claveau Mtre Sean Griffin LANGLOIS LAWYERS Mtre Robert Cunningham THE CANADIAN CANCER SOCIETY For the Canadian Cancer Society Date of hearing: March 22, 2021 REASONS OF MOORE, J.A. Table of Contents I - INTRODUCTION .. 5 II- BACKGROUND .. 8 III - JUDGMENT UNDER APPEAL .. 12 IV - ISSUES .. 15 V - ANALYSIS .. 17 A.

Constitutional validity and operability of the 2015 Act 17 1) Did the judge err in concluding that ss. 2 and 3 of the 2015 Act , by equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” and “vaping” with “smoking”, are valid and operative under the division of powers ? . 17 2) Did the judge err in concluding that equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” is not invalid due to its constitutional vagueness ? . 31 B.

Compliance with the Charters . 32 3) Did the judge err in concluding that the equation of “electronic cigarettes” with “tobacco” and “vaping” with “smoking” in ss. 2 and 3 of the 2015 Act does not infringe on the rights to inviolability, security, and freedom of expression ? . 32 4) Did the judge err in concluding that paragraphs (1) and (12) of s. 2 of the Tobacco Act unjustifiably infringe on the right to inviolability of the person under s. 1 of the Quebec Charter (principal appeal) ? . 34 5) Did the judge err in concluding that the prohibition on the supply or distribution of products related to e-cigarettes free of charge under paragraph (1) of s. 21 of the Tobacco Act does not infringe s. 1 of the Quebec Charter (incidental appeal) ? . 56 6) Did the judge err in concluding that paragraphs (4), (8), (9), and the third paragraph of s. 24 of the Tobacco Act unjustifiably infringe on freedom of expression protected under s. 2(

b) of the Canadian Charter and s. 3 of the Quebec Charter (principal appeal) ? . 58 C. Remedy . 69 8) Did the judge err by refusing to award the AQV legal costs and partial reimbursement of the fees incurred to defend its constitutional rights and by suspending the declaration of invalidity for six months ? . 69 VI - CONCLUSION .. 70

I - INTRODUCTION [ 7 ] With the stated goal of protecting public health, in particular the health of youth, and based on the risk that e-cigarettes renormalize smoking and create a gateway effect to tobacco products, the Quebec legislature decided in 2015 to subject vaping products to its tobacco legislation, with a few exceptions. The basis of this policy is that while it is true that vaping is less harmful than smoking, the scientific uncertainty concerning this product warrants prudence. [ 8 ] The respondent associations see things differently.

They argue that e-cigarettes are socially positive because, while not harmless, they offer smokers an effective way to quit smoking and, primarily, contribute to tobacco harm reduction.

A legislative policy that denies this reality by submitting the remedy – e-cigarettes – to the same scheme as the disease – tobacco – infringes the security and inviolability of smokers by limiting their effective and safe access to this product, and freedom of expression by imposing a message that falsely suggests that vaping is as dangerous as smoking. [ 9 ] Is the perfect, i.e., the eradication of tobacco and vaping, the enemy of the good, i.e., the use of vaping to reduce the effects of tobacco? Above all, who should determine this?

That is the essence of this case. [ 10 ] In the principal appeal, the Attorney General of Quebec (“AGQ”) contests the declaration of invalidity concerning paragraphs (1) and (12) of s. 2, paragraphs (4), (8), and (9) of s. 24, and the third paragraph of s. 24 of the Tobacco Control Act [1] (“ Tobacco Act ”), as well as paragraph (2) of s. 6.4 of the Regulation under the Tobacco Control Act [2] (“ Tobacco Regulation ”). [ 11 ] In its incidental appeal, the Association québécoise des vapoteries (“AQV”) argues that the Act to bolster tobacco control [3] (“ 2015 Act ”), in particular ss. 2 and 3, are ultra vires the jurisdiction of the Quebec legislature and infringe the rights to security, [4] inviolability, [5] and freedom of expression. [6] The AQV considers that the invalidity of both these provisions, which, for the purpose of the Tobacco Act , equate e-cigarettes with tobacco and vaping with smoking, affects the 2015 Act in its entirety. [ 12 ] In the alternative, the AQV asserts that paragraph (1) of s. 21 of the Tobacco Act infringes the rights to security and inviolability and that paragraphs (1) and (3) of s. 6.4 of the Tobacco Regulation violate freedom of expression. [ 13 ] It is helpful at this stage to reproduce the wording of the legislative and regulatory provisions whose validity is challenged in the principal or incidental appeals. [ 14 ] Sections 2 and 3 of the 2015 Act :

Section 1 of the Act is amended by inserting “, electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine, including their components and accessories,” after “containing tobacco”.

Section 1.1 of the Act is replaced by the following section: “1.1. For the purposes of this Act, unless the context indicates otherwise, “smoking” also covers the use of an electronic cigarette or of any other device of that nature; “tobacco” also includes the following accessories: cigarette tubes, rolling paper and filters, pipes, including their components, and cigarette holders.” 2.

L’article 1 de cette loi est modifié par l’insertion, après « qui contient du tabac », de « , la cigarette électronique et tout autre dispositif de cette nature que l’on porte à la bouche pour inhaler toute substance contenant ou non de la nicotine, y compris leurs composantes et leurs accessoires, ». 3. L’article 1.1 de cette loi est remplacé par le suivant : «1.1.

Aux fins de la présente loi, à moins que le contexte ne s’y oppose, le mot : « tabac » comprend également les accessoires suivants: les tubes, papiers et filtres à cigarette, les pipes, y compris leurs composantes, et les fume-cigarettes; « fumer » vise également l’usage d’une cigarette électronique ou de tout autre dispositif de cette nature. ». [ 15 ] Paragraphs (1) and (12) of s. 2, paragraphs (4), (8), and (9) of s. 24, as well as the third paragraph of s. 24 of the Tobacco Act :

2. Subject to sections 3 to 12, smoking is prohibited in the following enclosed spaces: (1) facilities maintained by a health and social services institution governed by the Act respecting health services and social services (chapter S-4.2 ) or the Act respecting health services and social services for Cree Native persons (chapter S-5 ), and premises where services are provided by an intermediate resource referred to in the Act respecting health services and social services , except if the premises are situated in a dwelling; … (12) all other enclosed spaces to which the public has admittance. 24.

All direct or indirect advertising for the promotion of tobacco, a tobacco product, a brand of tobacco product or a manufacturer of tobacco products is prohibited where the advertising … (4) contains testimonials or endorsements; (8) is disseminated otherwise than in printed newspapers and magazines that have an adult readership of not less than 85%; (9) is disseminated otherwise than by means of displays visible only from the inside of a tobacco retail outlet; … Advertising disseminated in printed newspapers or magazines that have an adult readership of not less than 85% must include the warning attributed to the Minister and prescribed by regulation concerning the harmful effects of tobacco on health.

The advertising must be forwarded to the Minister on being disseminated.

Sous réserve des articles 3 à 12, il est interdit de fumer dans tous les lieux fermés suivants: 1° les installations maintenues par un établissement de santé et de services sociaux visé à la

Loi sur les services de santé et les services sociaux (chapitre S-4.2 ) ou à la

Loi sur les services de santé et les services sociaux pour les autochtones cris (chapitre S-5 ) et les locaux où sont offerts des services d’une ressource intermédiaire visée à la

Loi sur les services de santé et les services sociaux , sauf si ces locaux sont situés à l’intérieur d’une demeure; […] 12° tous les autres lieux fermés qui accueillent le public. 24.

Toute publicité directe ou indirecte en faveur du tabac, d’un produit du tabac, d’une marque d’un produit du tabac ou d’un fabricant de produits du tabac est interdite lorsqu’elle: […] 4° utilise des attestations ou des témoignages; 8° est diffusée autrement que dans des journaux et magazines écrits dont au moins 85% des lecteurs sont majeurs; 9° est diffusée autrement que par de l’affichage qui ne peut être vu que de l’intérieur du point de vente de tabac; […] Une publicité diffusée dans des journaux ou magazines écrits dont au moins 85% des lecteurs sont majeurs doit comporter la mise en garde attribuée au ministre prévue par règlement et portant sur les effets nocifs du tabac sur la santé.

Cette publicité doit être déposée auprès du ministre dès sa diffusion. [ 16 ] And paragraphs (1), (2), and (3) of s. 6.4 of the Tobacco Regulation :

6.4. The operator of a specialized retail outlet for electronic cigarettes is not subject to the application of

section 20.2 of the Act for electronic cigarettes and other devices of that nature that the operator sells, including their components and accessories, to the extent that the following conditions are met: (1) the operator of the retail outlet sells only electronic cigarettes or other devices of that nature, including their components and accessories; (2) the operator displays the electronic cigarettes or other devices of that nature, including their components, accessories and packaging, so that they are visible only from the inside of the retail outlet; (3) no other activity takes place there. 6.4.

L’exploitant d’un point de vente spécialisé de cigarettes électroniques n’est pas soumis à l’application de l’article 20.2 de la Loi à l’égard des cigarettes électroniques et des autres dispositifs de cette nature qu’il vend, y compris leurs composantes et leurs accessoires, dans la mesure où les conditions suivantes sont respectées: 1° l’exploitant de ce point de vente n’y vend que des cigarettes électroniques ou d’autres dispositifs de cette nature, y compris leurs composantes et leurs accessoires; 2° l’exploitant étale les cigarettes électroniques ou les autres dispositifs de cette nature, y compris leurs composantes, leurs accessoires et leurs emballages, de façon à ce qu’ils ne soient vus que de l’intérieur du point de vente; 3° aucune autre activité ne s’y déroule. [ 17 ] For the following reasons, the AGQ’s principal appeal should be allowed and the AQV’s incidental appeal dismissed.

II. BACKGROUND [ 18 ] An e-cigarette is an electromechanical or electronic device that produces vapour users can inhale through the mouth. This vapour is usually flavoured, for example, it tastes of tobacco or fruit, and may or may not contain nicotine.

In this last case, e-cigarettes are one way to consume nicotine without burning tobacco. [7] [ 19 ] It is generally acknowledged that smokers smoke for the nicotine, but it is the tobacco, and especially its carbonization, that kills, which explains why many see e-cigarettes as a less harmful way to consume nicotine. [8] Harm reduction theory is based on the premise that, regardless of whether e-cigarettes are an effective way to treat tobacco addiction, it at least reduces the harmful effects of this addiction.

This new mechanism – which appeared around 2010 – and the perspectives it represents for some could but be of interest to governments in their fight against smoking. [ 20 ] The scientific community is divided however. Advocates of e-cigarettes see them as an effective harm reduction method.

There are also those who fear it for its intrinsic risks – nicotine addiction and aerosol dangers – and extrinsic risks, i.e., an eventual renormalization of smoking and a gateway toward tobacco, particularly for youth. [ 21 ] Those against also remark, rightly or wrongly, that the harm reduction argument raised by e-cigarette advocates is the same as the one used by the tobacco companies when filters or the use of various descriptions related to “light cigarettes” were introduced. [9] They note – contested by others – that the tobacco companies have been gradually taking control of the e-cigarette market.

This makes them concerned that e-cigarettes will ultimately undermine tobacco-control efforts, [10] the highlights outline of which it is useful to recall. [ 22 ] In 1986, the Quebec legislature enacted the Act respecting the protection of non-smokers in certain public places , [11] followed by the Tobacco Act [12] in 1998, which became central to Quebec’s anti-smoking policy.

This law has been amended many times and is based on three broad objectives: 1) prevent the use of tobacco products, particularly by youth; 2) encourage and support those who want to quit smoking; and 3) protect non-smokers from exposure to second-hand smoke. [13] [ 23 ] In 2012, the National Director of Public Health, Dr.

Horacio Arruda, published a warning asking the population to refrain from using e-cigarettes because little was known about this product. [14] [ 24 ] In May 2013, the Institut national de santé publique du Québec (“INSPQ”) tabled a report also stating that little was known about e-cigarettes and warning of the risk that it might undermine anti-smoking efforts by renormalizing smoking and creating a gateway effect to conventional cigarettes. [15] [ 25 ] In September 2014, the World Health Organization (“WHO”) published a similar report that also raised the “gateway effect” risk.

This report clearly describes the challenge e-cigarettes pose for public decision-makers: [16] 2. ENDS are the subject of a public health dispute among bona fide tobacco-control advocates that has become more divisive as their use has increased. Whereas some experts welcome ENDS as a pathway to the reduction of tobacco smoking, others characterize them as products that could undermine efforts to denormalize tobacco use. ENDS, therefore, represent an evolving frontier, filled with promise and threat for tobacco control.

Whether ENDS fulfil the promise or the threat depends on a complex and dynamic interplay among the industries marketing ENDS (independent makers and tobacco companies), consumers, regulators, policy-makers, practitioners, scientists,

and advocates. [ 26 ] How did the government respond? [ 27 ] In 2015, the Quebec legislature amended its tobacco-control legislation by enacting the 2015 Act . It introduced a significant number of amendments to the Tobacco Act , primarily the prohibition on smoking in cars in which children under 16 years of age are present or on selling flavoured tobacco.

Central to this reform, however, was the regulation of e-cigarettes by equating them with tobacco and vaping with smoking. [ 28 ] Federally, Health Canada, responsible for enforcing the Food and Drugs Act (“ FDA ”), [17] issued an advisory in March 2009 against the use of e-cigarettes. It read: [18] Nicotine is a highly addictive and toxic substance, and the inhalation of propylene glycol is a known irritant .

Although these electronic smoking products may be marketed as a safer alternative to conventional tobacco products and, in some cases, as an aid to quitting smoking, electronic smoking products may pose risks such as nicotine poisoning and addiction.

Please visit the Health Canada website for further information about nicotine and addiction. [ 29 ] Until 2018, Health Canada issued only one other advisory about e-cigarettes, on a specific point. [19] In 2018, Parliament in turn amended its tobacco legislation, [20] which became the Act to regulate the manufacture, sale, labelling and promotion of tobacco products and vaping products (“ Federal Act ”).

Since this amendment came into force, the manufacture, access to, labelling, and promotion of e-cigarettes has been regulated. [21] [ 30 ] It was in this context that the trial judge had to determine the applications for judicial review, the subject of this appeal. * * * [ 31 ] Valérie Gallant has been smoking since she was 13 years old. In 2014, she discovered e-cigarettes and has not smoked since.

Convinced of the benefits of vaping, she opened a vape shop that she closed in 2016, however, after the 2015 Act came into force and, she claims, caused the decline of the vaping industry. [ 32 ] The AQV is a non-profit organization established by Ms. Gallant that groups approximately 20 owners of vape shops. Most are former smokers who converted to e-cigarettes. Linda Boyer-Fawcett has been president of the AQV since February 2018.

A former smoker, she owns two vape shops. [ 33 ] The Canadian Vaping Association (“CVA”) is a national association bringing together vaping advocates and e-cigarette and vaping product retailers and manufacturers. [ 34 ] On February 25, 2016, Ms. Gallant and the AQV filed a first application for judicial review, in the district of Quebec. In April 2016, the CVA did likewise, this time in the district of Montreal.

On August 21, 2017, the Honourable Frédéric Bachand, then of the Superior Court, dismissed an application to dismiss the second application [22] and, on September 28, 2017, the Honourable Lukasz Granosik consolidated the two applications for a joint hearing. [23] [ 35 ] These applications, however, overlap on many issues but differ on others. [ 36 ] In the first application, that of the AQV, the Superior Court is asked to declare ss. 2, 3, 5, and 32 of the 2015 Act [ translation ] “inapplicable, invalid, null and inoperative” on the ground that they are ultra vires the jurisdiction of the Quebec legislature.

Moreover, because the effect of these provisions is to extend tobacco regulation to e-cigarettes, they have a transversal effect and the AQV claims that their invalidity affects the 2015 Act in its entirety.

In the alternative, the AQV asks that specific provisions of the 2015 Act be declared [ translation ] “inapplicable, invalid, null, and inoperative” based on the rights to inviolability, security, and freedom of expression. [ 37 ] The second application, that of the CVA, does not raise the issue of division of powers and is limited to challenging specific provisions of the Tobacco Act and the Tobacco Regulation based on the rights to security, inviolability, and freedom of expression. Before this Court, the CVA is party only to the principal appeal, as respondent, and has not filed an incidental appeal.

The second application is therefore relevant with respect only to the provisions that were declared inoperative at trial and that are the subject of the principal appeal. [24] [ 38 ] At trial, the AGQ argued that the AQV and the CVA do not have the legal interest to act and that the applications are moot. Those arguments were rejected by the trial judge and were not repeated on appeal. Therefore, the Court will not revisit them.

As for the rest, the AGQ argued that the 2015 Act is intra vires under ss. 92(13) and 92(16) of the Constitution Act, 1867 [25] (“ CA 1867 ”), does not infringe the charters and, if it does, the infringement is justified by the protection of public health, the continuing effort to control tobacco, the protection of youth, and the application of the precautionary principle. [ 39 ] Following an 11-day hearing, the judgment under appeal granted in part the two applications for judicial review. [26] [ 40 ] The AGQ appeals from that judgment and the AQV filed an incidental appeal. [ 41 ] On December 20, 2019, the Canadian Cancer Society, a legal person established for a private interest whose mission is to eradicate cancer and improve the quality of life of people living with cancer, was authorized to intervene on appeal. [27] III – JUDGMENT UNDER APPEAL [ 42 ] Specific parts of the judgment under appeal will be referred to during the analysis.

Thus, the sole purpose of this

section is to briefly present the trial judge’s conclusions.

[ 43 ] After discussing the background to the dispute, primarily the legislation, the judge thoroughly reviewed the evidence adduced, from which he drew certain general findings: 1) e-cigarettes target primarily smokers to help them quit or reduce conventional smoking; [28] 2) despite uncertainty on the dangers of e-cigarettes, they are less harmful that conventional cigarettes and tobacco; 3) e- cigarettes are a valid smoking cessation aid, [29] even though they have not yet been approved as a treatment by Health Canada; and 4) while it is better to vape than to smoke, it is better not to vape than to vape. [ 44 ] Here is how the judge framed the debate before him: [30] [ translation ] [150] The Court does not have to rule on the appropriateness of the legislative measures enacted.

Nor does it have to share its personal opinion on the pros and cons of vaping. The literature is abundant, the views vary, and there is no single obvious answer. The Court must decide whether the legislation is valid based on the evidence before it. The evidence has convinced the Court that e-cigarettes are less harmful to health than ordinary cigarettes and tobacco. Vaping is better than smoking tobacco and the former is a valid way to quit the latter. That being said, the best solution is undoubtedly to do neither. All the experts heard agree on this.

The CVA expressly admits this in its argument outline. [ 45 ] The judge first dealt with the issue of the validity and operability of the 2015 Act , which he called the [ translation ] “ Amending Act ”, in relation to the division of powers. The judge found that the primary purpose or thrust of the 2015 Act is not to [ translation ] “criminalize” the use of e-cigarettes, but to regulate that use to protect the public’s health.

The fact that penal sanctions exist to enforce compliance with the Act does not alter the “pith and substance”. [31] [ 46 ] This characterization of the Act then allowed the judge to classify it under the division of powers by relating it to ss. 92(13) and (16) of the CA 1867 , i.e., property and civil rights in the province and matters of a merely local or private nature in the province.

He wrote: [32] [ translation ] [242] In this case, and as previously stated, the Court finds that the pith and substance of the Amending Act (and more specifically its ss. 2, 3, 5, and the second paragraph of s. 32) is to regulate the use of tobacco products (including e-cigarettes and similar products) to protect health.

It does not introduce any new [ translation ] “crimes” or prohibit a [ translation ] “drug”. [243] This is a social objective related to provincial legislative jurisdiction over property and civil rights and matters of a merely local nature ( ss. 92(13) and (16) of the Constitution Act, 1867 ). [244] As a result, the Amending Act is classified and falls under provincial legislative jurisdiction over property and civil rights and matters of a merely local nature ( ss. 92(13) and (16) of the Constitution Act, 1867 ). [Citation omitted.] [ 47 ] After finding the 2015 Act intra vires the jurisdiction of the Quebec legislature, the judge then analyzed its operability and concluded that it is not inconsistent with the Federal Act .

Therefore, the 2015 Act is operative. [ 48 ] The judge then addressed the Charter challenges. He had to determine whether the 2015 Act, by restricting the use of and safe access to vaping as a method of reducing the harm suffered by smokers, infringed on their rights to security and inviolability. [ 49 ] The judge first concluded that ss. 2 and 3 of the 2015 Act equating e-cigarettes to tobacco and vaping to smoking do not apply to every type of inhaler – for example, an asthma pump – but only to those of the nature of e-cigarettes.

In addition, these sections, as long as they are not tied to a specific provision, do not in themselves infringe the Charters .

The legislature made a political and drafting choice when it made the equation in these provisions. [ 50 ] The same is true for paragraph (1) of s. 21 of the Tobacco Act prohibiting the supply or distribution free of charge of products related to e-cigarettes, which does not prevent smokers from accessing the product by paying the required price. [ 51 ] The judge concluded, however, that paragraphs (1) and (12) of s. 2 of the Tobacco Act , only to the extent that they prohibit testing in specialized stores or clinics, infringe smokers’ inviolability because they decrease the chance that e-cigarettes will enable users to reduce the risks of conventional cigarettes.

This is what the judge wrote in this regard: [33] [ translation ] [326] In

summary, depriving smokers of an opportunity to test in stores or clinics interferes with their inviolability because they are being denied, in part, greater access to a risk reduction method that will help them better protect their health and inviolability. It is worth recalling how many smokers have tried and failed to quit tobacco. They try over and over again. While it guarantees nothing, in-store or in-clinic testing can play a role and make it easier to quit tobacco and the harm it causes.

To prohibit this interferes with a person’s inviolability. [ 52 ] During the justification analysis, the judge concluded that the impairment was neither minimal nor proportional because the potential salutary effects to smokers outweigh the deleterious effects to non-smokers, especially since the mimicry and gateway effects were not convincingly proved. [ 53 ] The judge then analyzed the challenge based on freedom of expression.

With respect to ss. 2 and 3 of the 2015 Act and the equation of e-cigarettes with tobacco and vaping with smoking, the judge found, as with the right to security and inviolability, that there was no infringement per se by these provisions until tied to a specific provision.

[ 54 ] It is another matter for paragraphs (4), (8), and (9) of s. 24 and the third paragraph of s. 24 of the Tobacco Act , which prohibit different forms of advertising.

These provisions undeniably infringe on freedom of expression, an infringement the judge considered unjustified because there are less radical ways to reconcile the interests of smokers and non-smokers, i.e., to promote vaping to smokers alone as a smoking cessation aid. [ 55 ] Last, the judge analyzed s. 6.4 of the Tobacco Regulation that, in accordance with s. 20.3 of the Tobacco Act , relaxed the prohibition on displaying vaping products under s. 20.2 of the Tobacco Act .

He found that paragraph 2 of s. 6.4 of the Tobacco Regulation prohibiting displays of vaping products that are visible from the outside unjustifiably infringes on freedom of expression.

The judge also found that paragraphs (1) and (3) of this same provision limiting the display of products to stores that sell only e-cigarettes and do not offer any other activity do not violate free expression because the decision to sell or not sell other products is not a protected expressive activity. [ 56 ] As a remedy, the trial judge found that paragraphs (1) and (12) of s. 2 , paragraphs (4) , (8), and (9) of s. 24 , the third paragraph of s. 24 of the Tobacco Act , and paragraph (2) of s. 6.4 of the Tobacco Regulation are inoperative.

He suspended the declaration of invalidity for six months and dismissed the AQV’s requests for legal costs and reimbursement of legal fees. IV – ISSUES [ 57 ] In its appeal, the AGQ raises not only questions of law, but also palpable and overriding errors of fact. The AGQ submits that the trial judge wrongly concluded that e-cigarettes are intended primarily for smokers as a smoking cessation aid and unduly minimized the risks this product represents. On this point, the AQV and the CVA argue that this Court owes deference.

These questions of fact are relevant to the infringement (and eventual justification) of fundamental rights and will be part of that discussion. [ 58 ] The parties present the issues in both the principal and incidental appeals quite differently. For this reason, as well as for reasons of efficiency and structure, they should be restated and the principal and incidental appeals dealt with together, in a logical order.

Therefore, the various issues will be addressed as follows. [ 59 ] The incidental appeal raises two issues regarding the constitutional validity and operability of the 2015 Act : 1) Did the judge err in concluding that ss. 2 and 3 of the 2015 Act , by equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” and “vaping” with “smoking”, are valid and operative under the division of powers? 2) Did the judge err in concluding that equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” is not invalid because constitutionally vague? [ 60 ] With respect to the Charter infringements, the incidental appeal raises an issue that the AQV claims affects the legislation in its entirety and should be addressed first: 3) Did the judge err in concluding that equating “electronic cigarettes” with “tobacco” and “vaping” with “smoking” in ss. 2 and 3 of the 2015 Act does not infringe the rights to inviolability, security, and freedom of expression? [ 61 ] The issues concerning the protection of security and inviolability ( s. 7 of the Canadian Charter and s. 1 of the Quebec Charter ) are as follows: 4) Did the judge err in concluding that paragraphs (1) and (12) of s. 2 of the Tobacco Act unjustifiably infringe on the right to inviolability of the person under s. 1 of the Quebec Charter (principal appeal)? 5) Did the judge err in concluding that the prohibition on supplying or distributing products related to e-cigarettes free of charge under paragraph (1) of s. 21 of the Tobacco Act does not infringe on s. 1 of the Quebec Charter (incidental appeal)? [ 62 ] Concerning the protection of freedom of expression: 6) Did the judge err in concluding that paragraphs (4), (8), (9) of s. 24 , and the third paragraph of s. 24 of the Tobacco Act unjustifiably infringe on freedom of expression protected by s. 2(

b) of the Canadian Charter and s. 3 of the Quebec Charter (principal appeal)? 7) Did the judge err in concluding that paragraph (2) of s. 6.4 of the Tobacco Regulation unjustifiably infringes on freedom of expression protected by s. 2(

b) of the Canadian Charter and s. 3 of the Quebec Charter (principal appeal), but paragraphs (1) and (3) of s. 6.4 do not (incidental appeal)? [ 63 ] Finally, the incidental appeal raises the issue of remedies: 8) Did the judge err in refusing to award the AQV legal costs and partial reimbursement of the fees incurred to defend its constitutional rights and by suspending the declaration of invalidity for a period of six months? V – ANALYSIS [ 64 ] Before addressing the merits of the dispute, the Court must rule on the AGQ’s application for fresh evidence.

In a judgment dated November 4, 2019, a panel of the Court granted the application solely to allow the 2019 WHO report to be filed and deferred the determination of this exhibit’s admissibility and probative value to the panel on the merits. [34] [ 65 ] At the hearing, counsel of every party rightly agreed that the Court should have the most recent data on a subject where scientific and sociological knowledge evolves rapidly. Therefore, the parties agreed to allow the 2019 WHO report, updating the 2014 report already on the record, to be filed.

For these reasons, the Court therefore declares the 2019 WHO report admissible.

A.

Constitutional validity and operability of the 2015 Act 1) Did the judge err in concluding that ss. 2 and 3 of the 2015 Act , by equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” and “vaping” with “smoking”, are valid and operative under the division of powers? [ 66 ] The AQV argues that ss. 2 and 3 of the 2015 Act , by equating e-cigarettes with tobacco and vaping with smoking, create a new criminal offence that prohibits the inhalation of any substance in various places based on the danger this practice represents.

The AQV submits that the three characteristics of criminal law are present: (1) a prohibition, (2) coupled with a penalty, (3) for a criminal law purpose, i.e. to protect public health by regulating dangerous things. [ 67 ] What is more, not only does the 2015 Act concern criminal law, but the AQV also claims that it strikes at the very core of federal jurisdiction in this subject matter, thereby eliminating any possibility of overlap or trenching.

In fact, the AQV argues that the 2015 Act cannot amend the definition of tobacco under the Federal Act , which recognizes a positive right to use and access electronic cigarettes, without creating either an operational conflict or a conflict of intentions between the two laws. [ 68 ] The AGQ argues that both levels of government may intervene concurrently in areas under their jurisdiction.

That is the case here because the 2015 Act is related to health and the provincial jurisdiction over property and civil rights (s. 92(13) of the 1867 Act ) and any matter of a merely local or private nature in the province ( s. 92(16) ). The Court must therefore examine, according to the doctrine of federal paramountcy, whether it is inconsistent with the Federal Act , which is based on criminal law (s. 91(27)).

Because it is possible to comply concurrently with both these laws and because they share the same purpose, there is no such inconsistency and the 2015 Act is operative. [ 69 ] With respect, the AQV’s position on this first issue is difficult to follow and appears to confuse the issue of the 2015 Act ’s validity with its applicability or operability. These issues, however, involve the different constitutional law doctrines of pith and substance, interjurisdictional immunity, and federal paramountcy. A review of the principles applicable in this matter would be helpful before they are applied. i.

Applicable analytical framework [ 70 ] The Supreme Court discussed the analytical framework of these different doctrines in a series of judgments, including Canadian Western Bank , [35] which concerned the application of the provincial licensing scheme governing the promotion of insurance products to federally chartered banks. [ 71 ] In that judgment, the Supreme Court adopted a method that attained a sufficient degree of predictability, ensured an evolution of the division of powers tailored to the changing political and cultural realities of society, and promoted a flexible approach to facilitate “co-operative federalism”. [36] The analysis has three steps: the law’s validity, its applicability, and its operability. [ 72 ] In the first step, that of validity, the Court must determine whether the impugned legislation may be based on a power conferred on the level of government that enacted it.

If so, the measure is intra vires and therefore valid. If not, it is ultra vires and invalid. To make this determination, the law’s subject matter must be characterized and then classified. [ 73 ] To characterize a law, its pith and substance, its essence or “dominant characteristic”, must be identified.

It must be described as precisely as possible to avoid assigning it superficially, [37] even artificially, [38] at the second step. [ 74 ] The pith and substance analysis is based on the law’s purpose, i.e., [ translation ] “the legislation’s goal or objective sought” [39] as revealed in the text itself – intrinsic evidence – or in the parliamentary or preparatory work – extrinsic evidence – and in its effects, i.e., the law’s [ translation ] “legal or practical consequences”. [40] Extrinsic evidence can involve a wide range of possible elements such as [ translation ] “... commission of inquiry reports, white papers, scientific studies, parliamentary commission reports, or even House debates ...”. [41] It may include [ translation ] “... all the factual circumstances prior to the law’s enactment that can identify its true purpose beyond disguises or appearances”. [42] [ 75 ] Once the pith and substance has been identified, the Court must then determine whether it can be classified under one of the heads of power of the level of government that enacted it.

Characterizing and classifying the law are two separate steps, which explains why the pith and substance of a statute must be identified without regard to the heads of legislative competence. [43] [ 76 ] Identifying and classifying the pith and substance of legislation therefore allows the interrelation or interaction between the various federal and provincial heads of competence, which should not be viewed in isolation or in a vacuum, to be recognized from its proper perspective.

Legislation that concerns primarily a head of power of the enacting government may incidentally affect the head of power of the other level of government (incidental effect). The same matter may also be indivisibly based on more than one head of power depending on the analytical approach taken; the law then has a “double aspect”.

In both of these cases, the issue then becomes whether one of these heads of competence dominates over the other or whether, conversely, they may coexist. [44] This analysis must be conducted at a later stage, however, because the mere fact that legislation is related to a head of power of each level of government does not affect its validity since, by definition, it is intra vires the level that enacted it. [ 77 ] According to the Supreme Court, recognizing that a measure may therefore validly affect a head of power of the other level of government, through an incidental effect or the double aspect doctrine, provides a pragmatic and balanced answer to the challenge raised by the division of powers and instills it with flexibility marked by cooperative federalism.

However, these principles can “neither override nor modify the division of powers itself” no more than they can “support a finding that an otherwise unconstitutional law is valid”. [45] This is why it is sometimes necessary to continue the analysis to protect a head of power from certain types of intrusion. This is when the doctrines of interjurisdictional immunity and federal paramountcy come into play. [ 78 ] In Western Bank , the Supreme Court was divided on the order in which these doctrines should be considered.

For Bastarache J., dissenting on this point, the doctrine of interjurisdictional immunity should always be considered first. The majority held that not only

should that not be the case, but that the doctrine of interjurisdictional immunity “is of limited application and should in general be reserved for situations already covered by precedent. ...

If a case can be resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it would be preferable to take that approach ...”. [46] This principle has since been reiterated [47] and it can be stated that the reference for Canadian modern constitutionalism is “overlapping jurisdiction” [48] and “intergovernmental cooperation” [49] rather than mutually exclusive jurisdictions. [50] [ 79 ] This does not mean, however, that the doctrine of interjurisdictional immunity has been eliminated. [51] This doctrine is based on the idea conveyed by the very wording of ss. 91 and 92 of the 1867 Act that the prescribed heads of power are watertight, exclusive, at least for an unassailable portion on which the other level of government cannot trench.

If the doctrine of interjurisdictional immunity is found to apply, “... the law enacted ... remains valid, but has no application with regard to the identified “core””, [52] without it being necessary to show any conflict or even that “the government benefiting from the immunity exercis[ed] its exclusive authority”. [53] [ 80 ] To apply this doctrine, it must be established that the legislation impairs the basic minimum unassailable content of the power of the other level of government. [54] The Court will return to this.

It is what the AQV implicitly echoes when it argues that the double aspect doctrine cannot apply when the legislation affects the core of the other level of government’s power. [ 81 ] If the majority of the Supreme Court in Western Bank considers that the doctrine of interjurisdictional immunity, which was used primarily to protect “federal” works, undertakings, or persons, [55] must not be favoured, [56] it is mainly because the search for the “core” of each power creates uncertainty.

This danger is that much greater when it involves a broad, vague, and polymorphous power such as, in this case, criminal law, property and civil rights, or any other matter of a merely local or private nature. [ 82 ] This loss of interest in the doctrine of interjurisdictional immunity is accompanied by an increased interest in the doctrine of federal paramountcy.

This doctrine allows the division of powers to be applied flexibly and pragmatically using the incidental effects of a valid law and the double aspect doctrine, at the same time, to override only real conflicts between a federal and a provincial law. [ 83 ] The test of the federal paramountcy doctrine is easily described.

The mere fact that Parliament acted in one of its heads of power does not lead to the presumption that in so doing it intended to rule out any provincial legislative action. [57] A provincial legislative act will be declared inoperative in favour of a federal law only when it is incompatible with that law and only to the extent of that incompatibility. The party relying on the incompatibility must establish it knowing that the rule of constitutional

interpretation states that when a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an

interpretation is to be preferred to another applicable construction which would bring about a conflict between the two statutes. [58] [ 84 ] In concrete terms, there are two forms of incompatibility, one that hinders the concurrent application of the two laws, i.e., where the application of one entails a violation of the other, and another that is known as intention, which frustrates the purpose of the law of the other level of government. [59] ii.

Application to this case [ 85 ] In accordance with the approach described, the Court must first identify the pith and substance of the law to relate it to a head of power then, if it is intra vires , turn to the doctrines of interjurisdictional immunity and federal paramountcy. • Identifying the pith and substance of the law [ 86 ] The AQV argues that the 2015 Act is based on criminal law in that it creates a new criminal offence, i.e., the use in certain places of any type of inhaler due to the danger this use poses to health.

The AGQ argues that the 2015 Act is instead intended to protect public health, more particularly the health of youth. [ 87 ] The Court recalls that a law’s pith and substance is identified by examining its purpose and its effects. As the Supreme Court states, let us see what can be drawn from the intrinsic evidence, i.e., the law itself, followed by the extrinsic evidence. [ 88 ] The title of the 2015 Act provides a strong first indication: An Act to bolster tobacco control . The legislature could not have indicated its intention, at least stated, more clearly.

The 2015 Act , and this is important to note, does not concern solely e-cigarettes. The regulation of e-cigarettes is only one aspect of the Quebec legislative policy reform on tobacco control.

That is why the law also prohibits smoking in motor vehicles in which a minor under 16 years of age is present, extends the list of places where it is prohibited to smoke, and prohibits the sale of cigarettes having an aroma other than that of tobacco. [ 89 ] Looking at the different measures as a whole, as the Supreme Court dictates, [60] equating e-cigarettes to conventional cigarettes or to tobacco is but one aspect of the anti-smoking strategy. This finding considerably weakens the argument that the 2015 Act creates a new offence prohibiting the use of an inhaler in certain places.

It is instead one means among others to support tobacco control. [ 90 ] Further consideration of the law’s content increases the doubt as to the correctness of the AQV’s description.

E-cigarettes are not prohibited, they are regulated, like tobacco, primarily regarding the places where they can be used, how they can be promoted, their labelling, or even certain characteristics of their components, for example, flavours that, contrary to tobacco products, are allowed. [61] [ 91 ] After reading the different provisions, the Court is convinced that the purpose of the 2015 Act is to prevent e-cigarettes from attracting new users and thus undermining the tobacco control efforts, all with a view to protecting public health. [ 92 ] The legislature attached heavy sanctions to this regulation.

It is true that this means is used by criminal law. When analyzing the pith and substance, however, the subject matter or purpose of the law should not be confused with the means used to carry out that purpose. [62] It is also well settled that the provinces may attach penal sanctions to their laws, even tough ones, [63] to ensure that they are enforced. [64] [ 93 ] A review of the extrinsic evidence leads to the same conclusion.

Thus, the context in which 2015 Act was enacted points this way because the 2013 INSPQ and 2014 WHO reports warning against the dangers of e-cigarettes suggest that various legislatures equate

them with cigarettes. This is also the case with Dr. Arruda’s brief on the strategy to adopt presented to the National Assembly’s Committee on Health and Social Services during consultations leading to the enactment of the 2015 Act . [65] It reads: [66] [ translation ] The type of framework proposed is an appropriate avenue that reduces the various risks associated with the large-scale use [of electronic cigarettes] (“EC”).

Since the measure does not eliminate the product from the market, it therefore also considers its potential to reduce the morbidity and mortality associated with using tobacco products, as well as the help it can offer smokers who want to overcome their addiction. On this point, the NDPH finds it acceptable that ECs be flavoured, given that this could attract and convince adult smokers to try to quit smoking, especially if flavours in tobacco products are eliminated. However, the government must be able to eliminate flavours preferred by youth and non-smokers or even those that are dangerous to health.

In this regard, the regulatory power provided in Bill-44 is a necessity. [ 94 ] The remarks by Lucie Charlebois, the Minister for Rehabilitation, Youth Protection, Public Health, and Healthy Living, explaining why the law allows flavours to be added to e-cigarettes, as opposed to tobacco products, also reveal the balance sought by the legislature: [67] [ translation ] The bill also included a prohibition on flavours in all tobacco products, including menthol, as I was saying earlier, and subjects e- cigarettes to the Tobacco Act , except for flavours.

This is because people told us that many people use e-cigarettes to quit smoking and that the flavours were very helpful to them.

However, we will be able to regulate if we see that a danger exists and it causes people to start smoking again, we will be able to act more quickly. [68] [ 95 ] The legislature is therefore trying to strike a balance between allowing e-cigarettes to be used as a smoking cessation aid and harm reduction method and regulating them to protect non-smokers or former smokers from its dangers. [ 96 ] The purpose of the 2015 Act that emerges from the intrinsic and extrinsic evidence therefore tends to support the AGQ’s position.

What now of its effects? [ 97 ] The 2015 Act essentially equates e-cigarettes with conventional cigarettes. This is what the AQV particularly deplores in that it sends a misleading message associating the illness with the cure. It is certainly understandable that the AQV has a different opinion on the strategy adopted by the Director of Public Health and the legislature. That is a political decision, however, to manage risks and opportunities and this difference of opinion does not affect the nature of the legislation.

The legal effects of the 2015 Act are to associate e-cigarettes with the same risks as cigarettes, for both the dangers of the product itself and the incidental effects it might have on tobacco use or the renormalization of smoking, not to suppress it with a new offence. [ 98 ] This analysis reveals that the trial judge correctly found that the purpose of the 2015 Act provisions is to protect health.

More specifically, the Act is intended to protect public health from the potential dangers of vaping due to nicotine or aerosols, and to ensure that e-cigarettes or any other type of inhaler of that nature does not induce, through mimicry or the gateway effect, non-smokers, particularly youth, or former smokers, to start or resume using tobacco products. [ 99 ] Once the pith and substance of the law has been identified, it must be classified under one or more heads of power of s. 92 of the 1867 Act to determine whether the Quebec legislature could enact the impugned measures. [ 100 ] As was noted, on this point, the AQV asserts not only that the 2015 Act relates to criminal law, but that it affects the very core of this power, thereby removing any possibility of trenching, whether due to an incidental effect of the legislation or the double aspect doctrine. [ 101 ] In general, the 1867 Act does not assign exclusive jurisdiction over health to either level of government. [69] Certain specific elements relating to health are assigned, such as the provincial jurisdiction over the establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province (s. 92(7) or the federal jurisdiction over “quarantine and the establishment and maintenance of marine hospitals” (s. 91(11)).

But beyond these specific elements, health is an aggregate of subjects that sometimes affects federal heads of power and sometimes affects provincial heads of power. [70] [ 102 ] It is a cross-section of the human and social reality that itself involves a multitude of legal areas, be it the organization of labour, contract law, criminal law, or the regulation of business. It is therefore unsurprising that it might be possible to relate the 2015 Act to the criminal law, whose purpose is to protect public health and regulate drugs and other hazardous substances.

Furthermore, federal jurisdiction over the regulation and sale of sale of tobacco products has been recognized. [71] [ 103 ] In this case, the issue is not whether Parliament could act within its power over criminal law, but whether the Quebec legislature could do so under its own heads of power. The trial judge correctly concluded in the affirmative. [ 104 ] First, this conclusion is consistent with the case law on the regulation of tobacco products.

The Court recalls that the Supreme Court recognized that a provincial law could validly ban the advertising, display, and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age are permitted, even though not prohibited by federal law. [72] [ 105 ] This conclusion is also consistent with the principles in Schneider , [73] where the Supreme Court recognized that a province could authorize the courts to order heroin addicts to enter treatment.

In that judgment, the Court stated that “the view that the general jurisdiction over health matters is provincial ... has prevailed and is not now seriously questioned”. [74] That principle has since been repeated. [75] [ 106 ] In this case, the impugned provisions can therefore be related to both the criminal law and any matter of a merely local or private nature through the common intention to protect public health. The AGQ does not actually dispute that Parliament could have enacted the

impugned legislation based on its criminal law power. Indeed, it acted in 2018 by prohibiting, among other things, lifestyle advertising [76] or giving or offering to give a vaping product [77] and by making these offences punishable on

summary conviction to a fine not exceeding $500,000 and/or to imprisonment for a term not exceeding two years. [78] [ 107 ] This is the point in the analysis when the parties’ positions can actually be distinguished. The AQV claims that the double aspect doctrine does not allow the Quebec legislature to act in a core federal power and in so doing, it trenches on the criminal law jurisdiction, while the AGQ argues that the provincial law and the Federal Act do not conflict and can co-exist.

The AQV relies, without stating it explicitly, on the doctrine of interjurisdictional immunity while the AGQ relies on federal paramountcy. • The doctrine of interjurisdictional immunity [ 108 ] When the AQV argues that the legislation affects the core federal power, it ultimately argues that even though these measures can be attached to a provincial power, they must be declared inapplicable under the doctrine of interjurisdictional immunity.

To do so, the AQV must convince the Court that the 2015 Act impairs and trenches on the core, the very essence of criminal law. [ 109 ] A majority of the Supreme Court in Western Bank resolutely opted to restrict the doctrine of interjurisdictional immunity because it causes uncertainty and is not in sync with the development of cooperative federalism.

As the AQV notes, it is true that the Supreme Court, in that same judgment, also signalled that cooperative federalism cannot modify the division of powers made in 1867, a principle that was reiterated in References re Greenhouse Gas . [79] But that is not the case here. [ 110 ] While it is generally difficult to define the core of a power, a difficulty that in particular creates uncertainty surrounding the doctrine of interjurisdictional immunity denounced by the Supreme Court, [80] it is even more so when the power is broad and extensive such as that of criminal law or any matter of a merely local or private matter. [81] [ 111 ] Primarily to counter this uncertainty, the Supreme Court suggested reserving, in principle, the application of this doctrine to only those situations already covered by precedent. [82] Not only is that not the case here, but the case law teaches us the reverse: first, by accepting that the protection of health might involve both levels of government, [83] then, more specifically, by acknowledging that a provincial law can prohibit the display and promotion of tobacco in premises in which persons under 18 years of age are permitted. [84] If it is possible for tobacco, it is hard to claim, as the trial judge correctly remarked, that it is otherwise for e-cigarettes. [85] [ 112 ] The doctrine of interjurisdictional immunity cannot therefore apply here. • The doctrine of federal paramountcy [ 113 ] The first two stages have established that the 2015 Act is valid and applicable.

The issue is now to determine whether there is a conflict between the provincial and federal laws. If such is the case, the federal law is paramount and the provincial law will be declared inoperative to the extent of the conflict. First, let us see whether there is an operational conflict between the two laws. [ 114 ] Simply put, for this to be the case, one law must prohibit what the other law requires be done. [86] The case law has often acknowledged [87] that it is possible to comply with two laws regulating an activity merely by complying with the requirements of the stricter law.

Here, the federal law has evolved and, while it is not as strict as the provincial law on certain points, namely with respect to e-commerce, it is stricter on others.

That is true, for example, for vaping product advertising, permitted under the Federal Regulation only in “a publication that is addressed and sent to an adult who is identified by name”, [88] whereas under the Quebec law, advertising may be included in any printed newspaper or magazine that has an adult readership of not less than 85%. [89] [ 115 ] The AQV argues that in this case, juxtaposing the requirements of both laws is not possible because the Federal Act grants positive entitlements that the 2015 Act overrides.

It refers as an example to online sales that, contrary to the provincial law, [90] are not prohibited under the Federal Act . [91] [ 116 ] While it is true that an operational conflict may appear when one law prohibits what the other law guarantees, [92] the Court finds that this is not the case here, because even if the Federal Act recognizes a positive right, namely online sales, which is not the case as will be seen, it does not require anyone to guarantee this.

Therefore, any argument raised by the AQV will necessarily be based on a conflict of intention. [ 117 ] On this point, the AQV argues that the 2015 Act frustrates the purpose of the Federal Act , which is to recognize a positive right to use and access e-cigarettes as a smoking cessation aid. [ 118 ] The Court disagrees. [ 119 ] First, the Court cannot but note a certain contradiction in the AQV’s argument. On the one hand, it argues that the e-cigarette law falls under federal jurisdiction over criminal law relating to the prohibition or control of hazardous substances.

On the other, it argues that this law recognizes a positive right to use and access this same substance as a smoking cessation aid. This is somewhat contradictory, as the Supreme Court noted with respect to tobacco: [93] 19 First, like the Tobacco Products Control Act , S.C. 1988, c. 20, before it, the Tobacco Act is directed at a public health evil and contains prohibitions accompanied by penal sanctions. Accordingly, and as the Saskatchewan courts correctly concluded in light of this Court’s decision in RJR - MacDonald Inc. v.

Canada (Attorney General) , ..., it falls within the scope of Parliament’s criminal law power contained in s. 91(27) of the Constitution Act, 1867 . It might be noted that no argument was made regarding the possibility that the legislation was adopted under the “peace, order, and good government” clause of s. 91, nor could any have been made, given the concessions on the basis of which this chambers motion proceeded.

As the criminal law power is essentially prohibitory in character, provisions enacted pursuant to it, such as s. 30 of the Tobacco Act , do not ordinarily create freestanding rights that limit the ability of the provinces to legislate in the area more strictly than Parliament. [Citations omitted.]

[ 120 ] The Court recalls that Health Canada does not recognize e-cigarettes as a smoking cessation treatment and that e-cigarettes have not been authorized or licensed under the FDA . It is therefore inaccurate to describe the relevant Federal Act as guaranteeing the use of or access to e-cigarettes for this purpose. [ 121 ] Second, it is simplistic, even misleading, to suggest that the federal and provincial laws conflict, when the first law ensures access to e-cigarettes as a smoking cessation aid and the second law prohibits its use to protect public health, particularly the health of youth, thus denying the harm reduction offered by e-cigarettes. [ 122 ] This

interpretation is simply inconsistent with the reality. The objectives of the 2015 Act are meant to strike a balance between authorizing e-cigarettes, primarily because they are less harmful to health than tobacco and can help people quit smoking, and regulating this product to prevent non-smokers, particularly youth, from adopting this habit that is not only itself harmful, but that may also be a gateway to tobacco. [ 123 ] These same objectives, however, appear in the Federal Act . This is clear from the wording of the law itself.

Contrary to the AQV’s position, its purpose is not solely to protect the [ translation ] “harm-reduction benefits of e-cigarettes”. On the contrary, s. 4(3) of the Federal Act states that its purpose with respect to vaping is to prevent the use of these products from leading to the use of tobacco by young persons and non-users of tobacco: 4 …

(3) The purpose of this Act with respect to vaping products is to support the objectives set out in subsection (1), to prevent vaping product use from leading to the use of tobacco products by young persons and non-users of tobacco products and, in particular, (

a) to protect young persons and non-users of tobacco products from inducements to use vaping products; (

b) to protect the health of young persons and non-users of tobacco products from exposure to and dependence on nicotine that could result from the use of vaping products; (

c) to protect the health of young persons by restricting access to vaping products; (

d) to prevent the public from being deceived or misled with respect to the health hazards of using vaping products; and (

e) to enhance public awareness of those hazards. 4. […]

(3) S’agissant des produits de vapotage, la présente loi a pour objet d’appuyer l’atteinte des objectifs énoncés au paragraphe (1), d’empêcher que l’usage des produits de vapotage ne pousse les jeunes et les non-utilisateurs de produits du tabac à l’usage du tabac et, plus particulièrement :

a) de préserver les jeunes et les non-utilisateurs de produits du tabac des incitations à l’usage des produits de vapotage;

b) de protéger la santé des jeunes et des non- utilisateurs de produits du tabac contre l’exposition et la dépendance à la nicotine qui pourraient découler de l’usage des produits de vapotage;

c) de protéger la santé des jeunes par la limitation de l’accès aux produits de vapotage;

d) d’empêcher que la population ne soit trompée ou induite en erreur au sujet des dangers que présente l’usage des produits de vapotage pour la santé;

e) de mieux sensibiliser la population à ces dangers. [ 124 ] It is then clear that the scheme under the Federal Act , which at times regulates vaping products more strictly, cannot be described as recognizing a positive right to use and access e-cigarettes.

The Court need only refer here to the prohibitions on advertising e-cigarettes to young persons, [94] lifestyle advertising, [95] and the use of testimonials or endorsements in advertising. [96] Furthermore, contrary to what might be legislation guaranteeing the use of and access to e-cigarettes as a smoking cessation aid or harm reduction method, the Federal Act prohibits any person from promoting vaping by suggesting that it has health benefits [97] or by comparing its use to that of tobacco. [98] It is true that products licensed under the FDA are exempt from these prohibitions, but, once again, that is not the case for e- cigarettes. [ 125 ] The objective of stemming the spread of e-cigarettes, especially among youth, also appears in the content of the Federal Regulation and is explicitly mentioned in the regulatory impact analysis statement published in the Canada Gazette . [99] Below are some particularly eloquent excerpts: [100]

Issues A rapid increase in youth vaping has been observed in Canada. Data from the 2018–2019 Canadian Student Tobacco, Alcohol and Drugs Survey (CSTADS) indicates that the prevalence of vaping has doubled among students compared to the previous survey in 2016–2017. Health Canada is concerned that young persons are being exposed to vaping product-related harms, including those related to nicotine exposure which can result in an addiction to nicotine and long-term use of tobacco products.

Health Canada has identified vaping product-related promotional activities as being one of the key factors that have contributed to the youth vaping problem. Evidence suggests that Canadians know very little about the health hazards of using vaping products.

Health Canada has also observed that not all vaping product advertisements display a health warning, and where such a warning is displayed, it is not prominently displayed and its content is not consistent across vaping advertisements. [ 126 ] In fact, the Federal Act , like the 2015 Act , intends to strike a balance between the protection of non-smokers and the benefits to smokers of e-cigarettes as a smoking cessation aid or harm reduction method. This is what the Minister of Health said before the Senate Committee: [101] ...

These are less harmful than tobacco products and they have the potential to bring about public health benefits if they reduce tobacco- related death and disease. ...

In this light, Bill S-5 aims to strike a balance between protecting youth from inducement to nicotine and tobacco use, while allowing adult smokers to legally access vaping products as a less harmful alternative to tobacco. [ 127 ] This balance, along with protection from the potential harms of second-hand vapour for anyone in federally regulated workplaces, also appears in a Health Canada document on the bill. [102] [ 128 ] All these elements intersect perfectly with what has been seen concerning the 2015 Act .

This analysis reveals that not only is there no conflict of intention between the provincial and federal laws, but, on the contrary, they have the same fundamental purpose.

Therefore, the Federal Act and the Tobacco Act are not inconsistent and can co-exist. [ 129 ] I therefore conclude, like the trial judge, that the 2015 Act is valid, applicable, and operative with respect to the division of powers. [ 130 ] This ground must therefore fail. 2) Did the judge err in concluding that equating “electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine” with “tobacco” is not invalid due to its constitutional vagueness? [ 131 ] The AQV submits that the effect of s. 3 of the 2015 Act, together with ss. 2 and 5 of the Tobacco Act , is to prohibit the use in many places of any type of inhaler, be it non-combustible tobacco, e-cigarettes, or any other similar mechanism, including asthma bronchodilators or even a simple straw.

The AQV claims that this proves that the law is overbroad and unconstitutionally vague. [ 132 ] The AQV adds that the trial judge peremptorily rejected this argument [103] by misapprehending the criterion used to determine whether a legislative provision is void for vagueness. It is not simply a matter of [ translation ] “a careful reading” or a judicial

interpretation of the impugned provision, but instead of knowing whether it provides sufficient indicia so that an ordinary citizen may comply and to limit the power of the body charged with its enforcement. [104] [ 133 ] It is true that in every matter, “... the doctrine against vagueness is a critical component of a society grounded in the rule of law.” [105] It is intended to ensure that the discretionary power of the body charged with enforcing the measure is not such that it is in fact a subdelegation of power. [106] That is not the case here. [ 134 ] The precision required of a text of law does not entail certainty as to the result of its application, [107] no more than it means that any ambiguity must be eradicated.

The AQV is right to argue that ordinary citizens must be able to reasonably ascertain the meaning. The uncertainty it raises concerning the law’s possible application to a bronchodilator or even a simple straw, however, appears to run counter to this criterion. [ 135 ] No citizen, and no officer charged with enforcing this law, could reasonably maintain that an asthma pump or a straw is an e- cigarette or “any device of that nature”.

The law’s title, the wording of s. 3 of the 2015 Act , the purpose and objective of the various provisions of that Act and of the Tobacco Act all contribute to giving the law a sufficiently precise meaning. [ 136 ] In addition, nothing in the evidence points to any real difficulty arising from any possible vagueness of the Tobacco Act . The AQV merely refers to the testimony of Dr. Arruda and Dany Lecours, a lawyer with the Direction de l’inspection et des enquêtes of the Ministère de la Santé et des Services sociaux, which, although it raises examples of laws requiring

interpretation, does not support the allegation of constitutional vagueness in this case. [ 137 ] Ultimately, the risks raised by the AQV pertain more to hypothesis, even speculation, rather than any real vagueness leading to the nullity of s. 3 of the 2015 Act and, with it, the 2015 Act in its entirety. [ 138 ] This ground must therefore fail. B.

Compliance with the Charters 3) Did the judge err in concluding that the equation of “electronic cigarettes” with “tobacco” and “vaping” with “smoking” in ss. 2 and 3 of the 2015 Act does not infringe on the rights to inviolability, security, and freedom of expression? [ 139 ] The AQV uses this ground to attack the validity of the 2015 Act in its entirety, even though this does not appear clearly from its conclusions in its pleadings. It is true that the neutralization of ss. 2 and 3 of the 2015 Act will have a structural effect on the rest of the

legislation because the legislature used these two provisions to extend, in principle, tobacco regulation to e-cigarettes. [ 140 ] The AQV’s argument is legally based on the need during a constitutional challenge, according to the teachings of the Supreme Court, to examine the whole legislative scheme. [108] The AQV claims that when analyzed, the legislative strategy, based on equating e- cigarettes with tobacco, [109] is irrational because it ostracizes a product that reduces the harm caused by tobacco. The AQV draws an analogy with a provincial law that would prohibit the use of methadone to treat addiction.

It further submits that such an equation distances smokers from e-cigarettes because it sends the message that they are just as harmful as tobacco. This equation confuses the poison with the antidote. [ 141 ] The AGQ replies that the judge did not err on this point and that the AQV in fact challenges a simple legal drafting technique. [ 142 ] The AGQ is correct. [ 143 ] The legislature could have included a comment to this end for every provision it wanted to extend to e-cigarettes.

Rather than do this, and possibly because the tobacco legislative scheme is more often than not extended to e-cigarettes, the legislature opted for the opposite approach. This choice, however, should not mislead. Sections 2 and 3 of the 2015 Act do not impose a binding straitjacket. The legislature can override the law if it so wishes. [ 144 ] Accordingly, s. 29.3 of the Tobacco Act states that the prohibition in s. 29.2 on selling or distributing flavoured tobacco does not apply to e-cigarettes.

The same is true for s. 20.3.2 of the Tobacco Act , which provides that the government may, by regulation, exempt the operator of a specialized retail outlet for e-cigarettes from the prohibition (in s. 20.2 ) on displaying these products in public view. Indeed, it did this in s. 6.4 of the Tobacco Regulation discussed below. [ 145 ] This legislative technique does not infringe any Charter right or freedom.

The analysis of any possible infringement and its justification must focus instead on the legislature’s decision to prohibit or limit e-cigarettes, expressed through the decision not to remove the equation provided in ss. 2 and 3 of the 2015 Act . That is what the CVA has in fact done in its application for judicial review and, incidentally, the AQV when it attacks specific provisions.

The fact that the Supreme Court states that it is important to consider the provisions of a legislative scheme as a whole and in their context, a principle that the Court clearly does not question, changes nothing. [ 146 ] As the trial judge agreed, [110] it is easily understood that equating e-cigarettes with conventional cigarettes is not well received by the AQV, the CVA and, in general, by all those who support e-cigarettes as a smoking cessation aid and effective harm reduction method.

For them, the equation in the 2015 Act sends the wrong message and confuses the antidote with the poison in the population’s mind, thereby distancing smokers from e-cigarettes. [111] [ 147 ] While it is possible to defend this opinion, like that of the opposing view upon which the legislative policy is founded, the best tobacco-control strategy to adopt remains a matter of opinion. It is possible that in the years to come, the legislature’s solution will prove to have been the wrong choice. [112] But that was not the issue to be determined by the Superior Court.

The issue was instead whether the provisions of the 2015 Act infringed on the rights to security and inviolability or freedom of expression.

A strategic disagreement cannot suffice and the analysis of any possible Charter infringement must be conducted in connection with the normative provisions. [ 148 ] For these reasons, this ground should be dismissed. 4) Did the judge err in concluding that paragraphs (1) and (12) of s. 2 of the Tobacco Act unjustifiably infringe on the right to inviolability of the person under s. 1 of the Quebec Charter (principal appeal)? [ 149 ] The trial judge concluded that paragraphs (1) and (12) of s. 2 of the Tobacco Act , to the extent that they prohibit the display and use of vaping products inside specialized stores and smoking cessation clinics, unjustifiably interfere with smokers’ right to inviolability under s. 1 of the Quebec Charter . [ 150 ] To reach this conclusion, the judge accepted that, while not indispensable, [113] no party argued that testing in stores or clinics had no positive effect. [114] For the judge, [ translation ] “this is key to quitting smoking and a supervised test is important and cannot be conducted elsewhere”. [115] Then, referring to Allard , [116] Bedford , [117] and PHS , the judge concluded that [ translation ] “...depriving smokers of an opportunity to test in stores or clinics interferes with their inviolability because they are being denied, in part, greater access to a risk reduction method that will help them better protect their health and inviolability”. [118] [ 151 ] The judge then turned to the issue of justification and applied the analytical framework in Oakes . [119] It was not contested that a pressing and substantial objective existed, i.e., to reduce smoking, the desire not to undermine any gains in this regard, and to prevent mimicry and the gateway effect. [120] The judge concluded, however, that the AGQ, upon whom the burden rested, had failed to prove that the total prohibition on testing in stores or clinics met the minimal impairment requirement.

He considered that the prohibition punished smokers more than it controlled the number of new non-smoking vapers. [121] With respect to mimicry and the gateway effect, [ translation ] “without denying them” and although referred to in certain studies, the expert evidence does not support the conclusion that they exist. [122] [ 152 ] According to the judge, certain laws, specifically those of British Columbia and Ontario, where in-store testing is limited to two vapers at the same time, establish that [ translation ] “...less radical legislative solutions exist to allow testing in stores or clinics while maintaining a limit that meets the defendant’s concerns”. [123] The impairment is therefore not minimal and cannot be justified. [ 153 ] In support of its appeal, the AGQ argues that the judge erred in concluding that smokers’ inviolability is infringed.

The AGQ recalled that, in accordance with the principles established by the Supreme Court in Syndicat national des employés de l'hôpital St- Ferdinand , [124] which have since been reiterated, [125] the AQV had to establish physical or psychological sequelae that affect the infringed group, in this case smokers, in something more than a fleeting manner. No evidence of any such sequelae or failed smoking cessation treatment due to the lack of testing in stores or clinics was adduced.

The judge may have been convinced of the usefulness of testing, certainly, but that is insufficient to constitute evidence of interference with inviolability.

[ 154 ] The AGQ argues that the judge made a second error when he found an interference with inviolability in the absence of any coercive prohibition by the legislature. The right to inviolability d

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