After receiving fines because actors smoked on their stage, three theaters decided to fight for their freedom of expression and their artistic freedom. They won their case: the Superior Court, under the pen of Judge Jean-François Émond, declared invalid in part the provisions of the Act concerning the fight against tobacco which prohibits smoking in a public place.
“It does not seem reasonable to completely prohibit the act of smoking a cigarette in all circumstances in the context of a theatrical performance,” ruled the magistrate, agreeing with the three theaters.
He also acquitted them of the violations of the law for which they had received tickets of $692. Judge Émond gave the legislator one year to correct the situation with his law and suspended his declaration of invalidity in the meantime.
This dispute pitted the State against artists on a stage that is less familiar to them: that of the courts.
They argued that this appeal before the Superior Court constitutes “a window, an opportunity to reflect on artistic freedom and the work of creators working in the field of living arts protected by the right to freedom of expression, and on the guidelines, limits or forms of censorship of this right and which could prove justifiable,” summarizes the judge.
The Théâtre du Trident, the Théâtre de la Bordée and Premier Acte have all participated in this legal and artistic fight which has been going on for years. They received the infraction reports in 2017 for one and in 2018 and 2019 for the others.
In all three cases, inspectors criticized them for having tolerated actors smoking on stage — a public place — cigarettes or fake weed joints.
The first judge who heard the case found that having “simulated” smoking a cigarette would have been just as “effective in conveying the message that the creators seek to convey.” In short, there was no reason to actually smoke according to him. This is not an activity protected by the freedom of expression enshrined in the Charters of Rights, he added.
An aberration for theaters, which explained that they had made this choice to use real cigarettes to convey a message. They further argued that their spectators were duly informed, before the performance, that a cigarette would be smoked on stage.
Judge Émond was convinced: “The choice of the creators to see a grilled cigarette on the stage had an expressive content. This gesture was intended to carry meaning. It aimed to convey a message, the psychological and existential distress experienced by people experiencing certain difficulties,” he wrote in his decision.
If the judge agrees that the fight against smoking is laudable and requires “strong” measures, the fact of sanctioning a theater which presents a play where an actor smokes a cigarette to convey a message “grossly deviates from the objectives pursued by the legislator, even considering public health issues.”
The judge does not invalidate the entire law. It removes the words “cultural or artistic” from “closed” public places where leisure activities take place where smoking is prohibited. But as it suspends this declaration of invalidity for one year, to give the legislator time to modify its law, all its articles remain in force during this time.