Tobacconist's charter challenge thrown out in N.S. court
Kentville store owner guilty of displaying cigarettes
A judge in Nova Scotia's Provincial Court has dismissed a charter challenge by a tobacconist who openly flouted provincial regulations to keep tobacco products concealed.
The regulations say tobacco has to be stored in closed cabinets to keep them out of sight of children.
Bob Gee of Mader's Tobacco has been fighting Nova Scotia's regulations for six years, saying they violate his freedom of expression.
Before the Nova Scotia court ruling, Gee said this was a battle over democracy — pointing out that tobacco is a legal product in Canada.
"I still would like to think that I have an adult right of choice," he said. "I do smoke, myself, and I enjoy smoking. And I would like it to be my decision and not big health’s decision or someone’s decision sitting in Halifax or Ottawa or wherever."
The province argued that public health should trump his rights in this case.
In the first part of the trial process, Justice Claudine MacDonald agreed that it was a violation of Gee's freedom of expression.
But Wednesday, the judge threw out the Charter of Rights and Freedoms challenge and said the violation was justified because of the significant benefits for covering up tobacco.
MacDonald said the violation had minimal impact on Gee's freedom of expression. She said tobacco is unique because it is a highly addictive poison that is unsafe.
MacDonald said evidence presented to the court showed that hiding tobacco products can help smokers quit and help former smokers from restarting the habit.
Gee was found guilty of displaying products in a way not prescribed by the regulations and storing tobacco in a manner not prescribed by regulations. His Kentville shop was also convicted of the same two charges.
"The decision I accept, but having said that, I’m very disappointed," said Gee.
"Tobacco is a legal product. The government is collecting 75 per cent of the money that we handle in tax dollars. I would like to know just where they’re coming from regarding the tobacco issue. If they don’t want tobacco on the market [then] make it illegal and get it done with."
While Gee mulls over his store's future, a coalition of health groups trying to eliminate tobacco use is applauding the verdict.
Nova Scotia's Health and Wellness Minister David Wilson said the infringement is necessary for the public good and the Canadian Cancer Society said the ruling will have wider ramifications.
"It's a very important victory for public health that will have benefits for Nova Scotia, and will have influence across Canada," said Rob Cunningham, a lawyer for the organization.
The judge said the public health argument prevailed because there’s no safe level of tobacco usage. In a release, Krista McMullin of Smoke-Free Nova Scotia said this decision is significant.
"We know that removal of tobacco product advertising in stores and on packages is a deterrent for youth and other people to start smoking," she said.
Gee must pay the courts $430, which includes a $200 fine, $200 for costs and $30 for a victim surcharge. He has three weeks to take down the tobacco display. His business also faces the same $430 fines. He has 90 days to pay.
After the ruling, Gee told reporters he doesn't know if he will keep his shop. His son is considering selling the store. Gee said he will sleep on the decision. He is also considering an appeal.
A provincial inspector arrived at Mader's Tobacco an hour after the court decision was announced, and told Gee he has three weeks to remove the tobacco display.
Several customers told Julian they support the store owner. One called the decision ridiculous.
The store owner estimates he spent $50,000 on his defence.
With files from Jack Julian