The Quebec Court of Appeal has ruled that actors are allowed to smoke cigarettes during their performances on stage and that a law banning smoking in indoor public spaces infringes on their freedom of artistic expression.
The ruling brings an end to a years-long legal saga for three theatre companies in Quebec City that were fined $500 between 2017 and 2019 after actors lit up on stage in separate performances. They received notices for violating Quebec’s Tobacco Control Act.
They challenged the law and were acquitted in a lower court ruling, but the province appealed to Quebec’s highest court, citing several scientific studies detailing the harmful effects of secondhand smoke on people’s health.
In a unanimous decision rendered on Wednesday, the Court of Appeal ruled that the province failed to demonstrate that the benefits provided by the law banning smoking outweighed the harm caused by it when it comes to the stage.
The theatre companies — Théâtre du Trident, Théâtre de la Bordée, and Théâtre Premier Acte — welcomed the decision, saying in a written statement that they are breathing “a huge sigh of relief.”
“This decision marks an important milestone for the performing arts community by clearly reaffirming that artistic freedom of expression is an essential pillar of our democratic society. Artistic creation must be able to flourish freely, without fear of interference or censorship,” the statement reads.
“We hope that the Government of Quebec will take note of this decision, which recognizes the creative freedom that must be granted to the many creators in the performing arts, and put an end to this saga that has already dragged on for far too long.”
In the decision, the panel of three appellate judges noted that the number of cigarettes and the duration of smoking scenes at the theatres was “limited,” and that auditoriums are generally very spacious venues that are well-ventilated.
The Quebec Attorney General did not present enough evidence to show the harmful effects, if any, when the exposure to secondhand smoke is low, the judges said, adding that a total smoking ban was not justified.
“The negative effects of the ban on freedom of expression are significant and tangible, as the restriction may result in a play not being produced or certain aspects of a work being censored,” reads part of the 45-page decision.
“This is a serious negative consequence not only for creators but also for the general public that attends theatrical performances.”
Canadian Cancer Society ‘strongly’ disagrees with court’s ruling
While the theatres welcomed the unanimous decision, not everyone is applauding it.
Rob Cunningham, lawyer and senior policy analyst with the Canadian Cancer Society, said he “strongly” disagrees with the judgment, particularly with the effect it will have on certain populations.
“Secondhand smoke is highly toxic and harmful. Members of the public and actors in a play should not be exposed to secondhand smoke,” he said in an interview on Saturday.
“The effect of the judgment to allow smoking in a theatre, including on stage, discriminates against women who are pregnant or trying to become pregnant, or people with certain heart and lung conditions, such as asthma. They’ll be denied roles in a play because of their health condition or because they’re pregnant, they don’t want to harm the baby. And similarly, many members of the public who have these conditions will not be able to attend because their health situation is so sensitive, they cannot be exposed to second hand smoke, period.”
But the lawyer representing the theatres, Louis-Philippe Lampron, said any breach of a fundamental right like freedom of expression has to be justified and in this case, the provincial government wasn’t able to do so.
Lampron, who is also a human rights professor at Université Laval in Quebec City, said freedom of speech, including artistic forms of expression, are granted “the maximum protection” in Canadian law.
“The three theatres [support] the prohibition of the right to smoke in public spaces and to protect the public from the effect of [secondhand] smoking. But the choices, the artistic choices, that may be made by some creators involved in living arts have to be considered with their importance, and we’re really glad that the Court of Appeal just confirmed that it is the case in Canadian law.”
The province has 60 days to decide whether or not it will appeal the decision to the Supreme Court of Canada.
