A long time coming: Supreme Court kicks Big Tobacco in cojones

August 1, 2011 | By | Reply More

By Markham Hislop, editor

It was 1977. Every day I rode to and from work in a van. My co-workers included a withered old Englishman who fired up a roll your own with the stinkiest Imperial Tobacco – inside the van, with the windows closed.


The cigarette smoke couldn’t be avoided. Worse yet, he knew I didn’t like the smoke and most days found a seat nearby so he could torment me.

Please don’t smoke in the van, I asked one day after he sat right beside me.

Smokers have rights, too, he replied stubbornly. He liked a good argument.

They don’t have the right to endanger my health and make me uncomfortable, I reasoned. What about my right to breathe clean air?

I have the right to smoke. If you don’t like it, that’s your problem, he said.

I don’t care if you smoke, I said, rather annoyed. But why can’t you smoke before you get in the van?

I like a smoke right after my breakfast, he said.

Can’t you do it outside?

I prefer to smoke inside the van. It’s my right.

The debate lasted all five miles to the hydro plant where we worked. I forget how it ended. Probably not pleasantly; weeks of enduring that acrid smoke had made me a little testy.

The long forgotten incident came to mind after receiving a press release from the Imperial Tobacco Canada. The country’s largest tobacco company is pissed at the Supreme Court of Canada. Given the multitude of lawsuits the tobacco industry has lost over the past few decades, one wouldn’t imagine Imperial to be generally happy with the Canadian justice system.

But this one was a pip. A real humdinger. Imperial has some set of balls, I have to say.

In 2000 the B.C. government passed the Tobacco Damages and Health Care Costs Recovery Act, which allowed B.C. the right to sue tobacco manufacturers for health care costs created by the use of their product. Those costs were estimated to be $10 billion for B.C. alone. Five years later the Supreme Court upheld the legislation’s validity.

Staring financial ruin in the face (other provinces have since adopted B.C-style legislation), Imperial applied to the B.C. Court of Appeal for the right to include the federal government as a third party. The action also included a class action suit against the company to recover the money spent by smokers on “light” or “mild” cigarettes.

In effect, Imperial was asking Canadian taxpayers to help pay if it lost a law suit.

The company’s argument? I don’t want to misrepresent Imperials position, so here’s Donald McCarty, its Vice President of Law, explaining their legal case:

“The federal government has known about the risks associated with smoking for decades and they have instigated and promoted the development and sale of ‘light and mild’ products in Canada. It is astounding that the government of Canada can step away from its responsibilities and leave tobacco producers to bear the full brunt of these allegations, when it has been fully complicit in all aspects of the manufacturing and marketing of tobacco products for decade.”

The government promoted the sale of tobacco for decades? Fully complicit in all aspects of the manufacturing and marketing of tobacco products? Seriously?

Incredibly, the B.C. Court of Appeal bought Imperial’s wagon load of manure. The case was appealed to the Supreme Court in 2009, which last week had the good sense to over-rule the lower court’s decision.

It’s not hard to understand why.

During the course of the acrimonious chat with my English co-worker he continually mentioned tobacco industry studies denying the link between smoking and cancer, and I touted government studies proving the opposite that were prominent in the media at the time.

Clearly, Ottawa wasn’t “complicit” in promoting smoking.  That was all Imperial’s doing.

Since then, governments have spent untold millions on anti-smoking campaigns. Take cigarette packaging. The Americans were in the news the other day because they are finally doing what Canada has done for years: putting ghastly photos of black, tar-encrusted lungs and ugly cancers on smoke packs in an effort to scare the crap out of youths contemplating taking up the noxious habit.

The only leg Imperial can stand on, and it’s really quite wobbly, is that Ottawa has cheerfully raised tobacco taxes for years and reaped a significant financial benefit on the back of an industry and a personal habit it vilified. According to Physicians for a Smoke-free Canada, last year the feds hauled in $2.6 billion in tobacco taxes and the provinces netted $4.2 billion.

So what? Government taxes gambling, that doesn’t make it responsible if you blow your life savings on the slots. Alcoholics don’t get to sue because beer is taxed. If they could, Canadian governments would be bankrupted tomorrow.

Canadians should see Imperial’s self-pity for what it is: a desperate attempt to shift the financial burden and the moral culpability to someone else.

But that’s some kind of chutzpah, isn’t it?

What a come down from the imperious days gone by when my co-worker could blithely argue that his right to smoke trumped my right to breathe. Finally, Big Tobacco has taken the pointy tip of the Supreme Court’s boot squarely in it’s over-sized cojones.

About time.



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Category: Opinion

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