© 2006  Karen Selick
SCC Okays Tobacco “Show Trials”ne
An edited version of this article first appeared in the January, 2006 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


SCC Okays Tobacco “Show Trials”

There’s something awfully fishy about a government enacting legislation that gives itself the right to sue a few specific corporations.  I’m speaking, of course, of British Columbia’s Tobacco Damages and Health Care Costs Recovery Act (TDHCCRA),  recently declared constitutional by the Supreme Court of Canada. 

Right off the bat, one has to wonder why there was any necessity to enact legislation at all.  Didn’t the B.C. government have the right to sue tobacco manufacturers without a special act of the legislature?

Of course it did.  Any government can assert a claim through the courts against any corporation.  But not every lawsuit results in a win.  B.C. didn’t want to take any chances.   Its goal was to siphon millions of dollars out of tobacco company coffers, just as it had seen fifty U.S. states do in 1998.  This meant it had to stack the deck to guarantee success.

That was, after all, exactly what its American forerunners had done.  In an incautious moment, the president of the Maryland state senate even admitted to a newspaper:  “We changed centuries of precedent in order to assure a win in this case.”

So B.C. took an axe to several time-honoured principles of common law.  The TDHCCRA created a cause of action where none had existed before.  It  requires the court to presume causation, instead of applying old-fashioned standards of proof.  It dispenses with the need for any connection between alleged victims and alleged perpetrators of harm.  It blocks the defendants’ right to compel the production of evidence that might help them rebut the statutory presumptions.  It imposes liability retroactively without any limits.  It revives actions that were previously statute-barred.  It imposes liability on foreign entities who might never have had any connection with British Columbia. 

The tobacco companies challenged the constitutionality of the law on three main grounds:  first, extraterritoriality; second, that it violated judicial independence by dictating to judges their verdict in advance; and third, that it violated the rule of law, an unwritten but legally recognized part of Canada’s constitution. 

The Supreme Court of Canada brushed aside every objection and declared the Act constitutional.  Its cavalier dismissal of the tobacco companies’ arguments made barely a ripple in the daily newspapers, but is shocking to anyone who thought there might still be some vestiges of justice remaining in our so-called justice system.

Here, for instance, is what the court had to say on the question of whether a fair trial is part of the rule of law:  “…the framers of the Charter enshrined that fair trial right only for those “charged with an offence”.  If the rule of law constitutionally required that all legislation provide for a fair trial, s. 11(d) and its relatively limited scope (not to mention its qualification by s.1) would be largely irrelevant because everyone would have the unwritten, but constitutional, right to a ‘fair…hearing’ [emphasis in original].”

Get that?  Only criminals have the right to a fair trial in Canada.  Civil litigants don’t.

The court went on:  “Indeed, tobacco manufacturers sued pursuant to the Act will receive a fair civil trial, in the sense that the concept is traditionally understood:  they are entitled to a public hearing, before an independent and impartial court, in which they may contest the claims of the plaintiff and adduce evidence in their defence.” 

Get that?  It doesn’t matter that the defendants are guaranteed to lose.  So long as they are allowed to jump through hoops and give the appearance of defending themselves, they have had what we are now calling a fair trial. 

There once was a time when trials with these characteristics were called “show trials”.  Wikipedia, the online encyclopedia, observes:  “The term show trial describes a type of public trial in which the judicial authorities have already determined the guilt of the defendant: the actual trial has as its only goal to present the accusation and the verdict to the public as an impressive example and as a warning.”

This, I submit, is a fitting description of the trial we might eventually see in British Columbia now that the Supreme Court has given its stamp of approval.  More likely, however, the tobacco companies will forego the privilege of a show trial, as they did in the U.S., and settle with the province for big bucks.

Will the province spend this money supplying health care to B.C. smokers?  Do pigs fly?  According to tobacco companies, the province “already receives more from tobacco taxes than it incurs in any reasonable estimate of the putative health care costs.”  Of course, nobody can accurately estimate the health care costs of tobacco, since ill health can have multiple causes. 

What we do know, however, is that B.C.’s American forerunners have been spending their windfall tobacco money on such “tobacco-related public health measures” as metal detectors in schools, museum expansion, sewer improvements, jails, tax rebates, etc. 

The whole affair is a gigantic farce—mere legalized extortion—and now it has the sanction of the Supreme Court of Canada.  Pathetic. 



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       Feb. 8, 2006