Calgary, Alberta —In a September 28, 2016 news release, the Government of Canada announced its plan to introduce “new tobacco legislation to address vaping products in Canada.”
The Canadian Constitution Foundation (CCF) has been following this issue closely and will continue to do so: see “E-cigarettes are a Critical Tool in the War on Smoking.”
The federal government is not the first jurisdiction in Canada to contemplate this sort of legislation. Both Quebec and New Brunswick already have legislation restricting and controlling the use of vaping technology. Ontario’s Making Healthier Choices Act received Royal Assent in 2015 but the government is continuing to consult on the issue and the act has yet to come into force. Various municipalities throughout the country, such as Saskatoon, Calgary, and Vancouver, have also enacted similar legislation.
Most existing and contemplated legislation in Canada is based upon the faulty premise that vaping should be subject to the same rules as those governing smoking tobacco. The CCF has previously argued that this treatment of vaping technology violates the Charter, specifically the section 7 rights to life, liberty, and security of the person of smokers who are struggling to quit and want better access to a safer alternative to traditional cigarettes: see “Continuing Ontario's Campaign Against Vaping Will Cost Lives.”
Most new legislation regulating vaping ignores the clear and growing scientific evidence that, whether inhaled directly or second-hand, vaping does not have anything close to the negative health effects of inhaling combusted tobacco products. Treating the two as if they were equally harmful will have the unintended and undesirable result of making it harder to transition to new and safer technologies, keeping smokers smoking and thereby risking their health and lives.
Public Health England—that country's equivalent of Health Canada—released an extensive analysis in 2015 concluding that the "best estimates show e-cigarettes are 95 per cent less harmful to your health than normal cigarettes, and when supported by a smoking cessation service, help most smokers to quit tobacco altogether."
The Guardian reported on September 20, 2016 that the number of smokers in England has now fallen to its lowest level ever. Canada seems to be experiencing a similar drop in smoking rates. Stats Canada data shows that smoking rates in Canada have been continuously falling in recent years. Between 2010 and 2014, the number of smokers went down by 2.7 per cent nationally, by 3.7 per cent in Alberta, and 3.1 per cent in B.C.
To an addict struggling to quit, the choice is simple—vaping is a cost-effective, life-saving intervention. Laws erecting barriers to vaping and e-cigarettes that impede a smoker’s easy access to this effective harm reduction technology will attract constitutional scrutiny as an irrational and arbitrary restriction of smokers’ Charter section 7 rights.
The CCF is hopeful that the upcoming federal regulations will be based on scientific evidence rather than on the faulty premise that vaping and smoking are equally harmful and should be regulated the same way.
There is some reason to hope. The federal government’s purported goal is to address the “growing phenomenon of e-cigarettes and vaping.” In order to do so, the government will introduce a new legal framework that “will balance the need to protect youth from nicotine addiction and tobacco use while allowing adult smokers to legally access vaping products for smoking cessation or as a potentially less harmful alternative to tobacco.” The CCF will be watching closely to make sure that the federal government properly accommodates the needs of adults looking for a safer alternative to cigarettes.
CCF lawyer, Derek From, said:
"The CCF hopes that the federal government will recognize that vaping is an important harm reduction technology capable of saving the health and lives of Canadians addicted to both the routine of smoking and to nicotine from tobacco. Helping Canadian smokers switch to new technologies like vaping and e-cigarettes will not only save lives, but will also reduce the enormous financial burden associated with smoking-related illnesses that is currently borne by our public health care system.
"If the proposed new regulatory framework erects needless barriers to vaping, the government’s new rules may violate the Charter. Governments in Canada are permitted to enact public health and safety laws, but those laws cannot violate the rights to life and security of the person in an irrational or arbitrary fashion.”