Tobacco vendor goes back to court

An unusual case is unfolding in a small courtroom in rural Nova Scotia that could have serious implications for anti-smoking legislation in the province and possibly across the country.
The drama, which pits the owner of a small family business against government, has been quietly simmering for four years.
It was 2008 when Bob Gee, owner of Mader’s Tobacco Store in Kentville, was first charged with illegal storage and display of tobacco products.
After numerous delays, the 68-year-old Gee successfully argued in court in 2010 that the province’s legislation banning the point-of-sale display of tobacco products is an infringement of his constitutional right to freedom of expression.
Part 2 of his case began Tuesday in Kentville provincial court, where a Justice Department lawyer must prove that the infringement on Gee’s charter rights is reasonable and justified in a free and democratic society.
“I’m feeling positive about it,” Gee said in an interview before the court proceedings. “I think things look good for us.’’
Gee, whose family has owned and managed the small retail business on Aberdeen Street for the past 45 years, would like to retire and leave the store to his son, Jeff. But the court case has delayed his retirement.
He has always argued that tobacco is a legal product in Nova Scotia and that he wants the freedom to conduct business without government interference.
Gee was charged under the province’s Tobacco Access Act, which prohibits the display of tobacco products in a store. After several court appearances, the Crown stayed those charges to allow Gee to comply with amendments to the legislation permitting customers to shop using an in-store catalogue.
Gee refused to comply and was charged again in 2009. He has removed tobacco products from his store window but still prominently displays them behind the counter in what anti-smoking advocates refer to as a marketing power wall.
His charter battle is the only legal challenge in Canada against legislation banning the display of tobacco products, and it could set a precedent.
Curtis Palmer, Gee’s lawyer, is asking Judge Claudine MacDonald to rule that the legislation is invalid.
If he wins, it could throw the province’s anti-smoking strategy into disarray at a time when most provinces and many western countries have moved toward similar legislation banning tobacco displays, according to The Chronicle Herald.
Ed Gorse, a lawyer for the provincial Justice Department, said the case is important to the province.
“It’s important in terms of protecting people from point-of-sale display and advertising of tobacco products.”
In the absence of laws regulating them, retail displays are the most prevalent form of tobacco advertising that young people and former smokers are exposed to, said Rob Cunningham, a lawyer and policy analyst for the Canadian Cancer Society, in an interview outside court Tuesday.
“This legislation reduces smoking, especially among youth, and we strongly support it,” said Cunningham. “We believe it’s essential for the legislation to remain constitutional.”
Dr. Robert Strang, Nova Scotia’s chief medical officer, testified that the ban on point-of-sale displays is one measure in a comprehensive attack on smoking.
“The ultimate goal is to have an ever-decreasing use of tobacco by Nova Scotians,” he said.
The court also heard that Gee is the only one of 1,243 tobacco retailers in the province refusing to comply with the legislation.