Canada’s Bill S-5 Could Prove Unconstitutional If Enacted Canada’s Bill S-5 Could Prove Unconstitutional If Enacted

Director of the Canadian Constitution Foundation released a devastating critique in non-partisan think tank publication questioning Bill S-5 and its constitutionality.

Howard Anglin has worked in public policy since graduating law school in 2002. He worked his way all the way to the position of deputy chief of staff to Canadian Prime Minister Stephen Harper starting in 2014 and ending when Harper left office. A native Canadian, Anglin currently works as the director for the independent charity, Canadian Constitution Foundation. According to their site they defend the constitutional rights of Canadians both legally and culturally by work through litigation, education and communication. Earlier this week Mr. Anglin wrote an article that tears into Canadian legislators for focusing too heavily on their “political agenda”. The editorial was published in Policy Options, the primary publication of the non-partisan think tank, Institute for Research on Public Policy.

The IRPP is one of Canada’s oldest think tanks. It was formally founded in 1972 after The Canadian Prime Minister, Pierre Elliot Trudeau, had suggested years earlier that an autonomous institute for public policy should be established. Since then the IRPP has worked as a non partisan public policy think tank to improve Canadian policy. They do research on and inform both sides of the debate of many current issues. Integral in providing a voice of reason in a world of partisanship, the Institute for Research on Public Policy’s decision to publish Mr. Anglin’s critique of Bill S-5 speaks volumes. They’ve taken a stand alongside the Canadian Constitution Foundation and the countless Canadian citizens who want to protect the health options of smokers across the country.

Bill S-5

Bill S-5, which is currently awaiting approval from the House of Commons, would make it illegal for e-cigarette companies to market their devices as lower-risk. Many are skeptical of this stance, arguing anything that gives smokers a safer option should not be suppressed. The authors of the bill argue that the changes are about establishing an “evidence based policy,” but research just doesn’t back this up. Claims that abstinence only policies do the job is antiquated and wholly false. Just as the American states that insist on only fighting teen pregnancy with abstinence have the highest teen pregnancy rates, we’ll reap what we sow if we take the same path with e-cigarettes.

A real “evidence based policy” would favor vaping over smoking. More and more peer reviewed articles indicate that vaping is in fact at least 95% safer than smoking. Researchers have also found that over half of people who commit to vaping for smoking cessation actually do quit long term. In light of this evidence it’s clear that what Canadian legislators are really creating is an “opinion based policy”. It’s only the popular opinion that vaping is as dangerous as smoking, the statistics are clear that vaping is not only safer, but a proven cessation tool.


This is not the first time that Canada has had a large scale debate about tobacco and nicotine policies. In 1995 the Supreme Court was needed to decide if a nearly ubiquitous ban on tobacco advertising was constitutional. Ultimately they decided the ban was unconstitutional, but not before conceding that “the mass of information, studies and research gathered in Canada and throughout the world, particularly during the past 25 years, makes it abundantly clear that tobacco use constitutes a substantial and pressing concern in Canada.” Now it’s 2017 and Canada is set to apply bans they deemed unconstitutional for the “substantial and pressing concern” of tobacco onto e-cigarettes. Research on e-cigarettes is nowhere near as established as the evidence against tobacco was at the time. Conversely, the majority of research we have so far indicates a dramatic harm reduction value of vaping. Public health law experts warn this harsh stance, without evidence, would likely leave the bill open to successful lawsuits.

There are two main ways Bill S-5 could be challenged in court, if it does in fact become law. The first is under the unreasonable restriction clause in the Canadian Charter of Rights and Freedoms. This would be in reference to the restrictions placed on advertising of e-cigarettes as a lower risk option. The peer reviewed science backs up these harm reduction claims. An arbitrary restriction such as this would likely prove unconstitutional even without the backing research. The second portion of the bill at risk for litigation is the Comparative Provision. This provision restricts laws from disproportionately prohibiting a substance in comparison to their actual impact on public health.

Effective Elsewhere

The idea that vaping is much safer than smoking is backed up by peer reviewed science as well as real life experience. Take for instance policies the UK has implemented. They first acknowledged that no individual policy would ever fit every situation. This is especially true in regards to restrictions and bans on substances. Therefore, instead of grouping vaping with smoking, they’ve made education the focal point with access and awareness of e-cigarettes kept relatively realistic. By taking what science has to tell them and using it to inform their actions, the UK government has been able to lower smoking rates to historic lows.

What’s Next

If you live in Canada, call your local representative and ask them to explain to their constituents how it makes any sense to ban marketing for something that has proven to help smokers quit. Especially when so much emphasis has been put into helping people quit smoking in recent years. Research indicates that over half of smokers who regularly vape actually quit. We must continue to educate people whenever we can by spreading the truth and fighting the misinformation.

What do you think about Bill S-5? Do you think restrictions are counterproductive? How should we approach public health policies in regards to vaping? Let us know what you think in the comments.


Katie Bercham - CocktailNerd Editor

Katie actually had a negative first experience of electronic cigarettes, picking up a cheap and horrible model from my local mall. Thanks to a chance meeting with co-editor David, she hasn’t had a tobacco cigarette in over 5 years. She brings a strong female voice to the e-cig community.