Four herbal cigarettes and a fake joint, smoked on the stages of three Quebec theaters between 2017 and 2019 for a total of around fifteen minutes, mobilized the judicial system until a hearing before the Superior Court on Thursday morning . At issue: does the law on the fight against smoking prohibit artists from depicting the use of cigarettes and exhaling their smoke?
The Bordée, Trident and Premier Acte theaters were all fined $692 for depicting the use of cigarettes on stage, contravening the regulations which prohibit smoking in an enclosed public place.
The three had contested these infractions on the pretext that they violated their freedom of artistic expression.
In a five-page judgment rendered in November 2021, judge Yannick Couture swept the argument aside. In his eyes, the “fact of smoking tobacco” represented “no expressive content” and did not “fall within the scope of the protection offered by the Canadian Charter nor that of the Quebec Charter. »
Before the Superior Court of Quebec on Thursday, the lawyers representing the three theaters tore into pieces the decision rendered at first instance. In the eyes of Me Louis-Philippe Lampron and Benjamin Bolduc, Judge Couture committed major errors of law in his decision, notably by basing it on a judgment that was incommensurate, in their eyes, with the theatrical context: Yellowknife v. Denny.
In this case dated 2004, the judge had before him a man who believed that a ban on smoking in his favorite tavern violated his freedom of expression. The magistrate dismissed the latter, concluding that the act of smoking expressed nothing in itself.
“ [Le juge Couture] misinterpreted the scope of Yellowknife, it seems quite obvious to me, underlined Me Lampron. […] The trial judge should have concluded that there was a violation of our clients’ freedom of artistic expression. This would have reversed the burden of proof on the State, which would have had to show the relevance of restricting the freedom of expression of an activity, creation, which is at the heart of the values that the charter seeks to defend. »
The Attorney General of Quebec, for her part, argued that theaters had accepted, in the recent past, health restrictions without crying censorship. “We accepted masks during COVID,” recalled M.e Marie-Eve Pelletier. It was a regulation and we agreed to comply with it for public health reasons. »
In the eyes of the State, the same logic would apply to cigarettes. “Here, the objective is the protection of non-smokers […] There is no safe exposure to second-hand smoke. None,” insisted the prosecutor. An incoherent argument served by a “wall to wall” and “disproportionate” means, according to the other camp.
“There is an inconsistency because according to the current law, it is possible to burn tobacco in a bowl on a stage, but it is prohibited to smoke a cigarette on it. Yet second-hand smoke is just as harmful whether it comes from a person’s mouth or from a vase. The fact that an actor smokes for two or three minutes, indicated Me Lampron, cannot justify an attack on fundamental freedom of expression. »
Prosecutor Pelletier believes for her part that a judgment favorable to theaters “would shake a pivot” of the law on the fight against smoking, namely the ban on smoking inside a closed public place.