OTTAWA, ONTARIO —On April 11 at 11 A.M., Derek From, staff lawyer at the Canadian Constitution Foundation (“CCF”), will be a panelist at a Media Roundtable on Vaping, Regulation and the Law in the Gatineau Room at Ottawa’s Chateau Laurier. Mr. From will be speaking about the constitutionality of the federal government’s proposed anti-vaping legislation.
The CCF released a report titled “Vaping and the Law” on February 23, 2017 that surveyed vaping legislation from across Canada and evaluated it in light of recent Supreme Court of Canada jurisprudence on harm reduction and section 7 of the Charter, which guarantees our right to life, liberty, and security of the person.
Other panelists include:
The event will be hosted by Health Diplomats—an international health advisory and consulting practice delivering solutions to global health problems—and hosted by Globe and Mail health columnist, André Picard.
- Dr. Gaston Ostiguy, Chest Physician at the McGill University Health Centre, Montreal Chest Institute.
- Dr. Konstantinos Farsalinos, Cardiologist and Nicotine Expert, Onassis Cardiac Surgery Greece, Department of Pharmacology, University of Patras, Greece.
- Dr. Riccardo Polosa, Pulmonologist and Director of the Institute for Internal Medicine and Clinical Immunology at Italy's University of Catania.
Harm Reduction and the Charter
In Canada (Attorney General) v. PHS Community Services Society, the Supreme Court of Canada (“SCC”) held that the federal government must renew a Controlled Drug and Substances Act exemption for the Insite drug injection clinic in Vancouver's Downtown Eastside. The exemption from Canada’s criminal laws permitted intravenous drug users to inject illicit drugs under the supervision of the clinic’s medical staff. Ignoring evidence that the exemption reduced the considerable harms associated with such intravenous drug use, the federal Minister of Health refused to renew the exemption in 2008 and the clinic initiated legal proceedings.
The SCC ruled in favour of the Insite clinic and its patients on Charter section 7 grounds. For the SCC, the question “was not whether harm reduction or abstinence-based programs are the best approach to resolving illegal drug use, but whether the federal government has limited the rights of claimants in a manner that does not comply with the Charter.”
Charter Compliance Following the Insite Decision
To comply with section 7 of the Charter, Canadian vaping laws must not erect irrational or arbitrary barriers that unnecessarily impede or inhibit smokers from switching to e-cigarettes, which is what happens when the law treats e-cigarettes broadly as if they are as dangerous as traditional combustible tobacco products. Examples of barriers include banning e-juice flavours, prohibiting access for youth without even an exception for youth who are otherwise smoking, and restricting the discretion of vape shop owners to demonstrate products to customers. Such restrictions are not narrowly tailored, lack balance and proportionality, and are not justified by the serious and well-established public health purpose that underlies restrictions on combustible tobacco cigarettes.
The CCF “Vaping and the Law” Report
The CCF report does not encourage e-cigarette use as a healthy or harmless act for non-smokers. Instead, it relies on the same scientific evidence on which Public Health England has based its policy of promoting e-cigarettes as a harm-reduction technology. Using this evidence, the CCF report describes how government should take a Charter rights- and evidence-based approach to e-cigarette laws and regulations, an approach that respects the constitutional rights of Canadians to choose a less harmful alternative to combustible tobacco cigarettes.
For more information, please consult the CCF’s “Vaping and the Law” report online at www.theccf.ca/vaping.
“E-cigarettes present Canada with an enormous health-care opportunity that could save lives and billions of dollars in taxpayer money. We encourage legislators to educate themselves on the actual evidence about the relative benefits of e-cigarettes over combustible cigarettes and the public-health approach to e-cigarettes adopted in the United Kingdom, and to bear in mind the constitutional issues implicated in regulating healthier alternatives to cigarettes.”
CCF Staff Lawyer