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Professor Raz, the Rule of Law, and the Tobacco Act

Published online by Cambridge University Press:  20 July 2015

Devrin Froese
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In 2000, the BC government sued 14 "tobacco manufacturers" pursuant to the Tobacco Damages and Health Care Costs Recovery Act. The Tobacco Companies challenged the constitutionality of the legislation, alleging amongst other things that the Tobacco Act violated the rule of law. In this paper, I begin by showing that the Supreme Court of Canada adopts a formal approach to the rule of law devoid of much substantive content. This, I argue, is in line with the views of Joseph Raz. I then argue that the Tobacco Companies' reliance on Raz's views for support in its claim that the Tobacco Act violates the rule of law is misguided. Far from invalidating the Tobacco Act, Raz's view can be understood to license it. In the last section of the paper, I show that a formal approach to the rule of law such as Raz's does not confine Charter interpretation.

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Discussion
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Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 1 , January 2006 , pp. 161 - 175
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

1. S.B.C. 2000, c. 30 [Tobacco Act].Google Scholar

2. British Columbia v. Imperial Tobacco Canada Ltd. 2005 SCC 49 Google Scholar, 2005 Carswell B.C. 2207 [Imperial Tobacco], aff ‘ing British Columbia v. Imperial Tobacco Canada Ltd. (2004), 239 D.L.R. (4th) 412, [2004] 9 W.W.R. 230 (BC CA) [Imperial Tobacco CA], rev’ing British Columbia v. Imperial Tobacco Canada, 2003 B.C.SC 877, 227 D.L.R. (4th) 323 (BC SC) [Imperial Tobacco BCSC].

3. Four Canadian corporations were served in British Columbia, namely, Imperial Tobacco Canada Ltd., Rothmans, Benson & Hedges Inc, JTI-Macdonald Corp. and Canadian Tobacco Manufacturers’ Council. Philip Morris Inc. (now Philip Morris USA Inc.) and Philip Morris International Inc., incorporated under laws of Virginia and Delaware, respectively and were served ex juris. British American Tobacco (Investments) Ltd. is incorporated under the laws in the United Kingdom and was served ex juris. These are the Appellants. Imperial Tobacco, supra note 2 at para. 18.

4. Supra note 1 at s. 2(1) and the definition of “manufacturer” in s. 1.

5. Ibid. at ss. 2(5), 3(2).

6. Ibid. at s. 10.

7. Consolidated Joint Factum of the Appellants, Imperial Tobacco Canada Ltd., Rothmans, Benson & Hedges Inc., JTI-Macdonald Corp. and Canadian Tobacco Manufacturers’ Council, Court no. 30411, at para. 201 and 202 [Appellants’ Factum] in relation to Imperial Tobacco, supra note 2.

8. Supra note 2 at para. 21 and 23.

9. Appellants’ Factum, supra note 7 at para. 91.

10. Ibid. at para. 153 and 154.

11. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

12. The Appellants argued that because of the definition of “tobacco related wrong” and the operation of s. 4 and the definition of “manufacturer”, the Tobacco Act imposes “the law of British Columbia on foreign conduct and foreign events giving rise to foreign exposure, injury or damage.” Appellants’ Factum, supra note 7 at para. 202, 204 and 205.

13. Imperial Tobacco BCSC, supra note 2 at para. 223. See also Imperial Tobacco, supra note 2 at para. 21.

14. (U.K.), 30 & 31 Victoria, c. 3.

15. Supra note 2 at para. 37.

16. Ibid. at para. 38.

17. Ibid. at para. 40.

18. Appellants’ Factum, supra note 7 at para. 125.

19. Ibid. at para. 47 and 91.

20. Ibid at para. 44, 45 and 91.

21. Supra note 2 at para. 49.

22. Ibid at para. 55.

23. Ibid. at para. 46. See also R v. Valente (No. 2), [1985] 2 S.C.R. 673 at 694, 704, 708, 24 D.L.R. (4th) 161 and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 2 S.C.R. 443 at para. 115, 1998 CarswellNat 2761.

24. Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 217.CrossRefGoogle Scholar

25. Supra note 1. Section 10 reads as follows: “When brought into force under section 12, a provision of this Act has the retroactive effect necessary to give the provision full effect for all purposes including allowing an action to be brought under section 2(1) arising from a tobacco related wrong, whenever the tobacco related wrong occurred.”

26. Appellants’ Factum, supra note 7 at para. 156.

27. Ibid. at para. 173.

28. RS.B.C. 1960, c. 370.

29. Appellants’ Factum, supra note 7 at para. 174.

30. Raz, The Authority of Law, supra note 24 at 214, cited in the Appellants’ Factum, supra note 7 at para. 162.

31. Ibid. at para. 196.

32. Supra note 2 at para. 58.

33. Ibid. at para. 59.

34. Ibid. at para. 63.

35. [1989] 1 S.CR. 1161 at 1192, 59 D.L.R. (4th) 161.

36. R.S.B.C. 1960, c. 162.

37. Supra note 35.

38. [2003] 2 S.CR. 40, 227 D.L.R (4th) 385.

39. R.S.C. 1985, c. V-1.

40. Supra note 38.

41. S. 11(g) of the Charter, supra note 11 does bar retroactive criminal laws. Section 11. “Any person charged with an offence has the right … (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.”

42. Supra note 11.

43. Supra note 2 at para. 65.

44. [1985] 1 S.C.R. 721, 19 D.L.R. (4th) 1 [Manitoba Language Rights cited to SCR].

45. The Authority of Law, supra note 24 at 212-13 as cited in Manitoba Language Rights, supra note 44 at 750.

46. See, e.g., British Columbia Hydro & Power Authority v. British Columbia (Environmental Appeal Board) (2003), 229 D.L.R. (4th) 1 at para. 68, 17 B.C.L.R. (4th) 201, [2003] W.W.R 194; Mandavia v. Central West Health Care Institutions Board (2003), 230 Nfld. & P.E.I.R 79 at para. 32, 682 A.P.R. 79; R. v. Chan (2000), 276 A.R 1 at para. 2, 40 C.R (5th) 281; Elliott v. Nova Scotia (Attorney General) (1999), 181 N.S.R (2d) 32 at para. 24, 560 A.P.R. 32; N.W.T.T.A. v. Northwest Territories (Commissioner) (1997), 153 D.L.R. (4th) 80 at para. 67, [1998] 2 W.W.R. 368; Bacon v. Saskatchewan Crop Insurance Corp., [1997] 9 W.W.R. 258 at para. 84, 157 Sask. R 199; Reclamation Systems Inc. v. Ontario (1996), 19 C.E.L.R. (N.S.) 1 at para. 37, 27 O.R. (3d) 419; Huet c. Ministre du Revenu national, [1990] 2 C.T.C. 2245 at para. 10, 90 D.T.C. 1785.

47. See, e.g., British Columbia Hydro & Power Authority v. British Columbia (Environmental Appeal Board), supra note 46 at para. 68 and Mandavia v. Central West Health Care Institutions Board, supra note 46 at para. 32. These cases quote Sullivan, Ruth in Driedger on the Construction of Statutes 3d. ed. (Toronto: Butterworths, 1994) at 513 Google Scholar where she states, “As Raz points out, the fundamental tenet on which the rule of law is built is that in order to comply with the law, or rely on it in a useful way, the subjects of the law have to know in advance what it is. By definition, a retroactive law is unknowable until it is too late … And when retroactive legislation results in a loss or disadvantage for those who relied on the previous law, it is not only arbitrary but also unfair.”

48. The Authority of Law, supra note 24 at 214.

49. See, e.g., Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001 Google Scholar) who claims that laws that overlook in certain respects the equality and human dignity of individuals are contrary to the rule of law. See also Dworkin, Ronald, “Law’s Ambitions for Itself” in Law and Morality, ed. by Dyzenhaus, David & Ripstein, Arthur, 2d ed. (Toronto, ON: University of Toronto Press, 2003).Google Scholar

50. See, e.g., Allan, supra note 49 and Dworkin, supra note 49.

51. Although I will use the terms “formal” and “substantive” to constitute two distinct groups, in reality theorists will fall on a spectrum with extremely formal and extremely substantive forming polar extremes.

52. Rev. ed. (New Haven, CT: Yale University Press, 1969) at 39.

53. Ibid. at 42.

54. The Authority of Law, supra note 24 at 214-19.

55. Fuller grants that some laws that are passed that have a retroactive effect do not necessarily impair the law. Sometimes retroactive effect “may actually be essential to advance the cause of legality” (supra note 52 at 53) where the intent is to “cure irregularities of form” (ibid. at 54). Fuller’s example is a situation where legislation is passed that requires marriage certificates to be stamped in order to be valid. The problem is that when the legislation was passed, there were no stamps. People were married but technically their marriages were invalid. Legislation that is subsequently passed to “cure irregularities of form” may “advance the cause of legality.” Similarly in civil disputes, when a judge decides to overrule a precedent, such a decision has retroactive effect. However, this sort of retroactive effect is necessary in civil law. Otherwise, “it is difficult to see how a private litigant would ever have any incentive to secure the repeal of a decision that was mistaken or that had lost its justification through a change in circumstances” (ibid. at 57).

56. Ibid. at 202.

57. Ibid. at 203.

58. The Authority of Law, supra note 24 at 226.

59. Ibid. at 226.

60. Ibid. at 225.

61. Ibid. at 219, 220.

62. Ibid. at 220.

63. Ibid. at 221.

64. Ibid. at 224.

65. Supra note 52 at 202.

66. Supra note 49 at 109.

67. Supra note 52 at 47.

68. Supra note 11.

69. Raz, The Authority of the Law, supra note 24 at 214

70. See Allan, supra note 49 and Dworkin, supra note 49.

71. The Authority of Law, supra note 24 at 212-13 as cited in Manitoba Language Rights, supra note 44.

72. The Authority of Law, supra note 24 cited in Appellants’ Factum, supra note 7 at para. 162 and 163.

73. Appellants’ Factum, supra note 7 at para. 196.

74. The Authority of Law, supra note 24 at 214.

75. Supra note 2 at para. 66.

76. Ibid. at para. 52.

77. The Authority of Law, supra note 24 at 47-48.

78. Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994) at 226.Google Scholar

79. Ibid. at 231, 232.

80. (2002) 15 Can. J.L. & Juris. 69 at 74.

81. Supra note 11 at s. 15. Section 15(1) “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

82. The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 254.Google ScholarPubMed