Press Release: Vaping Regulations Could Be Subject to Constitutional Challenges

Press Release by The Canadian Constitution Foundation – Original article posted here

TORONTO, ONTARIO — The Canadian Constitution Foundation today released the executive statement of an upcoming report by Dr. Leonid Sirota, professor of law at the Auckland University of Technology Law School, that outlines possible avenues for a constitutional challenge to current and proposed vaping legislation in Canada. The report highlights the rights of a specific but important—and vulnerable— group: current smokers who are looking to quit.

“While current and proposed legislation (especially at the federal level) sometimes distinguishes between vaping and smoking, it often fails to do so. Vaping is, according to the best available scientific data, much less dangerous than smoking, because it does not involve combustion or the generation of smoke,” says Dr. Sirota in his report. The conflation of vaping and smoking within the law runs contrary to the best available evidence and risks conveying to smokers the impression that vaping is not meaningfully different and better than smoking, discouraging them from trying what may be the best harm-reduction method available.

The report analyzes various constitutional concerns about the regulation of vaping, both in terms of the laws falling outside of federal jurisdiction as well as running afoul of the Charter of Rights and Freedoms.

On the topic of jurisdictional issues, Dr. Sirota posits that “while the court is right that the vaping-specific purposes of the federal law have to do with preventing its putative harms, so that provincial restrictions on vaping cannot be said to undermine this purpose, the court does not examine the possibility of conflict with the federal statute’s overall purpose which is to safeguard the health of Canadians from the harms of smoking. To the extent that provincial law undermines the smokers’ endeavours to quit their habit, it is arguable that it does frustrate the purpose of the federal law.”

With respect to the Charter, regulations that ban or prohibit relative risk statements or advertising are found to place limitations on the freedom of expression, protected by section 2(b) of the Charter, especially that of retailers. Given the fact that tobacco brands have built been built over years prior to advertising bans, these limitations may affect vaping more severely than tobacco products.

These restrictions also negatively impact rights of the adult smoker, a point bolstered by a decision of the Superior Court of Québec in Association québécoise des vapoteries c Procureure générale du Québec (“AQV”) which found that they prevent smokers and the public from learning about the difference between the risk profiles of the two products.

Other vaping regulations, such as nicotine ceilings or flavor restrictions, have the potential to make them less attractive or effective as quit-aids—and are considered from the standpoint of potential interference with the right not to be deprived of life, liberty, and the security of the person protected by section 7 of the Charter. These rights are potentially interfered with when vaping legislation makes it more difficult for smokers to take measures that will make it less likely that they will die as a consequence of their habit, to avoid future illness and suffering or to protects a person’s ability to choose medical treatment for him- or herself. The Supreme Court’s jurisprudence in cases involving supervised drug injection, prostitution, assisted suicide, and medical marijuana states that while the government has no positive obligation to provide healthcare for individuals or otherwise protect them from harm, there are limits on its ability to prevent them helping themselves. The same rationale could apply to the regulation of vaping products.

In concluding, Dr. Leonid Sirota observed, “These regulations are meant to protect non-smokers from vaping as potentially dangerous in itself and, worse, a possible gateway to smoking. However, it risks inflicting serious harm on current smokers, for whom vaping can be an important, and often the most effective, harm-reduction technique.”

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