NS law violates freedom of expression . . . but

They say you can't fight city hall. But one Nova Scotia shopkeeper is trying to do just that.

OK, OK. He's fighting the provincial government, not city hall. But, that's a minor technicality. Fighting government at any level is usually a losing proposition. So you have to admire a man (or woman) with the courage to stand his ground and challenge laws he believes intrude on his constitutional rights.

Bob Gee is the owner of Mader Tobacco Limited in Kentville, Nova Scotia.

A little over two years ago (May,2008), Gee was charged under the Tobacco Access Act with improper display and storage of tobacco products in his shop. That's serious stuff. There's a $2,000 fine for the first conviction, escalating to $5,000 for a second offense and $10,00 for any subsequent conviction.

He pleaded not guilty to the charges in June, 2008, claiming the legislation violated his right to freedom of expression. Legal maneuvering by the crown resulted in several adjournments, until, in April, 2009, the crown announced it was staying the charges.

Unfortunately for Gee, the government also took the time to amend the legislation. The reworded law still requires store owners to keep tobacco products hidden from public view, but now allows them to display their products in a catalogue. The catalogue may be viewed by customers wishing to purchase tobacco products, but must be kept closed at all other times.

Obviously, the government felt that by allowing shopkeepers to “express” themselves via a catalogue, they could avoid the constitutional challenge.

Gee chose not to use a catalogue, believing it unreasonable to have to cover up his tobacco products, which are still legal, in a specialty tobacco shop where minors are not permitted. According to Gee, using a catalogue didn't solve the problem; the amended law still violates his right to freedom of expression, so he kept his tobacco products in full view behind the counter.

The smoke police descended on Gee's shop like a pack of hungry wolves moving in for the kill and issued two warning letters before laying charges once again under Nova Scotia's Tobacco Access Act.

But, in a a decision Wednesday in Kentville provincial court, Judge Claudine MacDonald agreed with Gee. MacDonald ruled that displaying a product conveys a meaning and can therefore be regarded as an "expressive activity" protected by the charter. Her broad interpretation of what freedom of expression means, also suggested that the purpose of the Tobacco Access Act was "to restrict freedom of expression."

But, Gee is not off the hook just yet.

The province will still have an opportunity to argue that, despite infringing Gee’s constitutional rights, the legislation is reasonable and in the public good. A hearing will be held in early October to hear their argument. And, of course, if the crown is unsuccessful, they can still file an appeal in the Nova Scotia Supreme Court or even the Supreme Court of Canada.

And, therein lies the reason that fighting city hall is, more often than not, a losing proposition. The provincial government, with unlimited funds available from taxpayers, can carry on their vendetta for years. Small businessmen like Bob Gee, on the other hand, must bear the burden of their own legal costs which, in Gee's case are about $20,000.

Bob Gee must play David to the government's Goliath. And, he has to fight without a slingshot.

And, while Bob Gee is being dragged ever so slowly through the legal system, the legislation remains in effect.

Graham Steele, the acting minister of health promotion and protection, claims "We have a strong argument demonstrating the importance of this legislation. It’s a key piece of our work to reduce smoking rates and improve the health of Nova Scotians." Uh-huh.

But, let's face it, the idea that simply hiding cigarettes from public view will encourage adults to stop smoking or prevent kids from experimenting with cigarettes borders on lunacy. There is absolutely no statistical evidence to suggest that bans on so called “power walls” have any affect on smoking rates.

Maybe someone should point out recent claims by Health Canada that more teenagers use marijuana on a regular basis than smoke cigarettes. And, on my recent trip to the east coast, I didn't see any marijuana on display at the local convenience store.

In reality, the ban on tobacco displays in stores is just another confidence trick sold to gullible politicians by anti-smoker zealots.

Rob Cunningham, a lawyer for the Canadian Cancer Society, noted that all provinces and territories prohibit the display of tobacco products, as if that somehow justified the display ban. My kids used to push the same faulty logic; “Oh, come on Dad, everybody else is doing it.” I didn't buy it from them either.

If Steele really wants to “reduce smoking rates and improve the health of Nova Scotians”, all he has to do is have his government declare tobacco a prohibited substance. That should end the tobacco problem once and for all. Right?

But, I'm giving odds that won't happen anytime soon.