Guilty if B.C. says you're guilty

(by Gordon Gibson, in Vancouver - former B.C. politician, ) Globe and Mail, 24 November 1998)

The government of British Columbia has become a very bad government. By "bad" I do not mean merely incompetent, inferior, deficient and of poor quality. Nor do I mean simply malingering, misleading, devious, crony-ridden, corrupted by power, wasteful, manipulative and lying. No, quite beyond these easily observable aspects, the current government is really bad in ways that threaten our fundamental rights and freedoms.

I might cite the deliberate undermining of the integrity of democratic discourse, most notably in the way the government deceived voters about the deficit in the election of 1996. I might cite the shameful exploitation of aboriginal issues for partisan purposes, to the great damage of the cause of reconciliation. But I will dwell here on an attack on the independence of the courts and the rule of law, formalized 10 days ago in docket C985776 in the Supreme Court of British Columbia, based on recently proclaimed legislation.

The government's target is the tobacco industry, and its aim the recovery of tobacco-related health costs. The game is to try to look good by a low-cost attack on an accepted public enemy. The technique is trial by legislation, a practice outlawed more than 200 years ago in British jurisprudence and the U.S. Constitution: The legislature passes a law proclaiming guilt, and little is left for the courts. In the current case, the law would collect damages from tobacco companies for what was previously legal. This is wrong.

Let us clear away some underbrush. Smoking is a foolish and dangerous habit. From one who was up to five packs a day by the time I quit 28 years ago, that is an expert and considered opinion.

Smoking is also highly profitable for the state, which taxes the habit hugely. Every serious study - my favourite is by Raynauld and Vidal at the University of Montreal in 1992 - finds that tobacco use results in a massive net transfer of funds from smokers to non-smokers. The 1992 net transfer in Canada was more than $4 billion.

Not only do smokers pay high taxes that more than cover any special costs, but they also die earlier, dramatically reducing the pension, medical-treatment, housing and other costs of aging. The real losers are smokers personally, not the government. And if the government prevails and collects billions of dollars from the tobacco manufacturers, the real future losers will be the customers, who will have to pay higher cigarette prices. And who are the customers? Smokers are disproportionately poor people.

Education is the positive way to discourage smoking, and it is working. The honest negative route is direct taxation or flat prohibition. But honesty is of no concern here. The goal is finding more money - and maybe some votes - by targeting a demonized industry with retroactive rules. So back to the court attack.

* * *

The B.C. government watched with envy as U.S. jurisdictions reached huge out-of-court settlements with Big Tobacco. How to gain some of this lolly and political credit? Americans are more litigious than us, because their system encourages litigation. Canadian common law, very sensibly, takes the position that if you knowingly do something risky and suffer damages, too bad for you. So it looked impossible for B.C. to take the court route.

Victoria had an answer for that: Hey, let's pass a law called the Tobacco Damages and Health Care Costs Recovery Act, saying more or less that if you sold cigarettes at any time in the past, you are liable for associated health costs at any point in the future. This is retroactive legislation, illegal under the European Convention and everywhere offensive to principles of natural justice. To be found guilty today of having done something in the past that was not then a crime is outrageous. Except, it seems, to B.C. New Democrats.

What's more, in a section that has yet to be proclaimed, the government gets to say as conclusive evidence what those costs are. The act instructs the courts that they "must presume" this and "must determine" that, in ways that dramatically restrict a judge's proper ability to try a case and pretty well guarantee guilt.

The tobacco companies have filed a counter-action in the B.C. Supreme Court asking for a declaration that the law is unconstitutional, on three main grounds.

The first is that the act is beyond the powers of a provincial government, for technical reasons.

The second and probably strongest ground is that the act interferes with the legitimate powers of the courts to try cases. The courts have been properly jealous of their function, and may be expected to defend it here.

The third ground is the most exciting: that the act "violates the constitutional guarantee to be free from all liability in a court of law except in accordance with the rule of law." Most Canadians would think that automatic, but in fact such a finding would put new anti-retroactivity teeth into the preamble of our constitutional Charter of Rights and Freedoms.

The Supreme Court of Canada, in Paragraph 72 of the Quebec Reference on the issue of Quebec secession, suggests such a new supremacy of the Constitution over legislatures. So it's Big Tobacco versus Bad Government - rights in the balance.