Supreme Court set to weigh in on social costs of smoking

OTTAWA — Canada's top court will hear critical cases this winter on whether the federal government should be on the hook for the vast cost of treating tobacco-related disease.

In appeals next month, the Supreme Court of Canada will have to make calls on some key questions connected to the cost to society of smoking. Is the federal government liable to tobacco companies that are being sued by a provincial which foots the bills for smokers who become sick? How about smokers who want a refund because it turns out light cigarettes are bad for you too?

Those questions are central to legal claims valued at millions and possibly billions of dollars that the Supreme Court of Canada will hear over the next three months as the winter session gets under way next week.

Both appeals result from the tobacco companies' attempts to have the federal government share any potential responsibility for damages in the cases.

Other issues being examined in the wide-ranging session, which features 24 appeals, include: protecting the identity of police informants outside the courtroom; historical environmental degradation; the role of "artistic merit" in possessing child pornography; an Internet libel suit involving former media baron Conrad Black.

Then there is the matter of a Quebec lawyer who was found guilty of misconduct after he used some choice words in a letter — to a judge.

The tobacco cases centre on the role of the federal government in owing a "duty of care," or responsibility, to both tobacco companies and consumers in British Columbia.

In the first case, the federal government is appealing a decision of the B.C. Court of Appeal that allows a claim of "negligent misrepresentation" brought by the tobacco companies against the federal government to proceed to trial court in B.C.

The claim could result in the government being held liable for misrepresenting the hazards of light tobacco. Several tobacco companies are trying to implicate the federal government in a case brought against them by the B.C. government, related to costs associated with tobacco-related illnesses under the Health Care Costs Recovery Act.

The tobacco companies are also cross-appealing, and would like to revive other claims that implicate the federal government further.

In the second case, the federal government is taking Imperial Tobacco Canada Limited to court because the company wants the government to share some of the potential responsibility — and costs — associated with a class-action suit brought against Imperial by a group of consumers who smoked light cigarettes.

The smokers essentially want a "refund" from the company because they claim light cigarettes are just as harmful to their health as regular cigarettes, and Imperial Tobacco says the government also should be held responsible because it designed the light strain of tobacco.

The appeals are both scheduled for Feb. 24.

Other cases included in the winter session:

- Ross Barros v. Her Majesty the Queen: The private investigator from Alberta is appealing his obstruction of justice and extortion charges for trying to identify an informant outside of court who helped police lay drug and gun charges against Barros's client. To be heard on Jan. 25.

- Bernard Gerardus, Maria Berendsen et. al v. Her Majesty the Queen in Right of Ontario: A farming family is taking the Ontario government to court for dumping waste asphalt on an area that, 20 years later, the family claims contaminated drinking water for their cows, and for which the provincial government claims it is not responsible. To be heard on Jan. 28.

- Robert Katigbak v. Her Majesty the Queen: Katigbak was convicted on child pornography charges, but he claims he kept over 650 photos and videos of child pornography — some depicting actual abuse — on the basis of "artistic merit" because they were background information for an art gallery exhibit. To be heard on Feb. 21.

- Richard C. Breeden, et al. v. Conrad Black: The case raises the issue of jurisdiction when it comes to Internet defamation. Black claims he was libelled online and his reputation was subsequently damaged in Ontario, which is where he has brought forward his lawsuit. To be heard on March 22.

- Gilles Dore v. Pierre Bernard and Barreau du Quebec: Dore was disbarred for 21 days after he wrote a strongly-worded letter to a case judge — which effectively translates into Dore calling him arrogant, hateful, mean and an "odious being" — but said it was a personal, not professional, opinion. How does the code of ethics limit what a lawyer can do? To be heard Jan. 26.