The tobacco case now in its second week in a British Columbia courtroom reminds me of what sometimes happens among children playing a game. The schoolyard bully realizes he canít win the game under the normal rules, so he makes up new rules, mid-way through the game, and tries to force them on the other kids.
The bully in this case is the B.C. government. The game is called Shake Down Big Tobacco. The new rules are called the Tobacco Damages and Health Care Costs Recovery Act (TDHCCRA), passed by the B.C. legislature in 1997. The other players are Canadaís tobacco manufacturing companies.
At stake is a multi-billion dollar prize. If the B.C. government wins this skirmish, it will proceed with its lawsuit (already started, but on hold while the players sort out the rules of the game) claiming that the tobacco companies should pay the costs of health care benefits that the government incurs as a result of B.C. residents smoking.
Before it changed the rules, B.C. used to shake down the tobacco companies and their customers using the old-fashioned method called taxation. The companies argued that tobacco taxes already covered the health care costs associated with smoking, but B.C. wanted more.
For one thing, it had been watching its role-model bullies south of the border. A number of U.S. states made a few little rule changes to their legal systems and all fifty states walked away with over $233 billion of tobacco companiesí money.
The trouble is, the rule changes required to pull this off arenít really so little, and itís not just Big Tobacco who will be affected if the B.C. government is allowed to cheat like this. Like all bullies, once it gets a taste of how lucrative cheating can be, itíll try it in other games, too. The U.S. role models, for instance, are already suing gun manufacturers and are reported to be looking rapaciously at car makers too.
And when the governments of the other provinces see that these tactics work in Canada as well as the U.S., theyíll want to set off on their own adventures in deep-pocket mining. Ontario, for example, has already launched a $40 billion lawsuit against tobacco companies, but in U.S. courts. No doubt it will happily return to its home turf if the B.C. challenge goes the "right" way.
Thatís why I--a lifetime non-smoker, who thinks smoking is a repulsive, unhealthy habit and a ridiculous waste of money--am hoping the tobacco companies win in B.C. Corny as it may sound, Big Tobacco is my hero in this battle. It is fighting for the rule of law, the constitutional separation of powers, and Canadiansí freedom from arrogant, oppressive government.
How, exactly, does the TDHCCRA change the rules? First, it eliminates the old-fashioned requirement of any normal lawsuit for the plaintiff to prove that the defendant actually caused the plaintiffís loss. The new law directs a court trying a tobacco case that it "must presume" that exposure to tobacco products caused or contributed to disease.
Traditionally, the onus was on the plaintiff to prove its case. It had to submit sufficient persuasive evidence to tip the scales of justice in its favour. Now, the validity of the plaintiffís claim will be presumed, and the onus will be on the defendant tobacco manufacturers to prove that they didnít cause smokersí health problems.
If this were a criminal case, this change would be like saying an accused person is presumed guilty until he proves himself innocent.
Another section of the new law will allow the government to use statistical information to prove that smoking has caused various illnesses and related health-care costs.
This is an attempt to repeal not only an established rule of evidence, but also a rule of logic. Statistical correlation is not the same as causation. There are many factors besides smoking that correlate to an increased risk of cancer, heart disease and other ailments often described as "smoking-related". One is low income. If the B.C. government succeeds in pocketing Big Tobaccoís money in this round, will its next target be some other corporate deep-pocket that it will presume by statute to be the cause of poverty?
In a murder case, this reliance on statistics would be like saying: "Clifford Olson killed a lot of people, so statistically speaking thereís a good chance he also killed a few more who are missing. We canít prove that he killed the victim in this particular case, but weíll rely on the statistics and convict him anyhow."
What we have here is a bizarre twist on a problem that has been much in the news lately. Critics have been accusing Canadian courts of usurping the role of the legislature by rewriting laws instead of sticking to their traditional role of adjudicating disputes. Judges have responded testily, claiming the critics are trying to restrict their judicial independence.
In the TDHRCCA, we have a provincial legislature seeking to usurp the role of the courts, by building the outcome of disputes right into the words of the law. Translated out of legalese and crammed into a nutshell, the act reads pretty much like this: "When the government sues tobacco companies, the government shall win."
The TDHRCCA also tramples the principle of judicial independence, dictating to judges the type of evidence they will admit and the conclusions they will draw.
Finally, the TDHRCCA violates another established legal principle by legislating retroactively. It repeals all existing time limits for starting tobacco lawsuits and revives old lawsuits that had previously been dismissed for contravening the Limitation Act.
The B.C. government knows
itís on shaky ground with this new form of legislative looting. In
July, after some scathing public criticism, it hastily amended the TDHRCCA
to remove a few sections that flouted traditional legal principles even
more outrageously than the ones Iíve summarized here.
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