R. v. Mader's Tobacco Store Ltd.

R. v. Mader's Tobacco Store Ltd.

The display and the storage (as regulated) of tobacco products in a retail store constitute expressive activity protected by s.2(b) of the Charter because they convey or attempt to convey meaning about products and brands; s.9AA(1) and s.9AA(2) of the Tobacco Access Act and s.3A of the Regulations have the purpose and effect of restricting that expression and therefore infringe s.2(b); the defendants established infringement on the balance of probabilities.

Citation
2010 NSPC 52
Parties
Crown: Her Majesty the Queen; Defendant (corporate): Mader’s Tobacco Store Limited; Defendant (individual): Robert George N. Gee
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
18 August 2010
Procedural Posture
Criminal (regulatory) With Charter Challenge / Decision on Constitutional Challenge (trial Level)
Outcome
Court finds that ss.9AA(1) and 9AA(2) of the Tobacco Access Act and s.3A of the Tobacco Access Regulations infringe s.2(b) of the Canadian Charter of Rights and Freedoms; defendants discharged onus to establish infringement.
Legal Topics
Section 2(b) Charter, Display and Storage Regulations, Tobacco Regulation, Expressive Activity, Purpose and Effect Analysis, Constitutional Validity Under S.52
Source Language
English
Constitutional Law Charter Rights Freedom of Expression Regulatory Law Public Health Law Commercial Law Section 2(b) Charter Display and Storage Regulations +4 more

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Parties

Her Majesty the Queen

Crown

Mader’s Tobacco Store Limited

Defendant (corporate)

Robert George N. Gee

Defendant (individual)

Procedural Posture

Criminal (regulatory) With Charter Challenge / Decision on Constitutional Challenge (trial Level)

Legal Issues

  1. 1 Whether display of tobacco products constitutes expression protected by s.2(b) of the Charter
  2. 2 Whether storage of tobacco products constitutes expression protected by s.2(b) of the Charter
  3. 3 Whether s.9AA(1) and s.9AA(2) of the Tobacco Access Act and s.3A of the Regulations infringe s.2(b)

Ratio Decidendi

The display and the storage (as regulated) of tobacco products in a retail store constitute expressive activity protected by s.2(b) of the Charter because they convey or attempt to convey meaning about products and brands; s.9AA(1) and s.9AA(2) of the Tobacco Access Act and s.3A of the Regulations have the purpose and effect of restricting that expression and therefore infringe s.2(b); the defendants established infringement on the balance of probabilities.

Court Disposition

Court finds that ss.9AA(1) and 9AA(2) of the Tobacco Access Act and s.3A of the Tobacco Access Regulations infringe s.2(b) of the Canadian Charter of Rights and Freedoms; defendants discharged onus to establish infringement.