CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
No : 500-17-027448-052
SUPERIOR COURT
PLACEMENTS SERGAKIS INC.,
and COMPLEXE SKY,
entertainment complex, body politic
and corporate, having a place of
business at 1474 Ste-Catherine Street
East, in the City and District of
Montreal, Province of Quebec, H2L 2J1
PETER SERGAKIS, businessman,
having a place of business at 3 800
Notre Dame Street West, in the City
and District of Montreal, Province of
Quebec, H4C 1P9
LES BILLARDS SKRATCH,
billiard club, body politic and
corporate, having a place of business
at 965 Cure-Labelle, in the City of
Laval, Province of Quebec H7V 2V7
VOULA DEMOPOULOS,
businesswoman, having a place of
business at 965 Cure-Labelle, in the
City of Laval, Province of Quebec
H7V 2V7
RAYMOND NAULT, Host,
domiciled and residing at 2375
Aumont Street, Apt. 106, in the City
of Brassard, Province of Quebec,
J4Z 3P3
GUY MILLETTE, Manager,
domiciled and residing at 1927
Alexandre-de-S6ve Street, Apt. 1 19,
in the City and District of Montreal,
Province of Quebec, H2L 2W2
Plaintiffs
v.
ATTORNEY GENERAL OF
QUEBEC, having an office at 1
Notre Dame Street East, Suite 8.00,
in the City and District of Montreal,
Province of Quebec, H2Y 1B6
Defendant
__________________________________________
INTRODUCTORY MOTION FOR DECLARATORY RELIEF
___________________________________________
I. THE PARTIES
_____________
1. The parties are Placements Sergakis Inc., Complexe Sky, Peter Sergakis, Les
Billards
Skratch, Voula Demopoulos, Raymond Nault, and Guy Millette; the individuals are
owners of bars, employees, and the corporation is a bar; Voula Demopoulos is
also a
smoker and does enjoy combining a drink with a cigarette in a bar;
2. The Defendant represents the Government of Quebec;
II. THE ISSUES
_____________
3. Since the discovery of America, the consumption of tobacco products has been
part of
western culture;
4. These products have included cigars, snuff and cigarettes;
5. In the 20th century, cigarettes in particular have been very widely used and
have
marked the art, cinema and literature of the epoch;
6. In the second half of the century, scientific studies have shown that smoking
has a
deleterious effect on the health and longevity of those who indulge in the habit
and, to
a lesser degree, and not conclusively on those exposed to second-hand smoke;
7. It is not the object of this action to dispute that there exists a rationale
for regulating
and restricting the use of tobacco products, but only to challenge the excesses;
8. It is clear that, despite the risks, cigarette smoking remains perfectly
lawful in Canada
and cigarettes continue to be widely available to adults in our society;
9. Moreover, those who smoke are often unable or unwilling to change and the
adoption
of excessive restrictions may make certain services offered by our society
completely
unavailable for them;
10. The Supreme Court set down certain limits on advertising restrictions in RJR
MacDonald v. Canada and, recently, the Quebec Court of Appeal placed other
limits
in J.T.LMacDonald Corp. v. P.G. Canada;
11. While these decisions have only limited bearing on the present case, they do
demonstrate that the prevalent views about the need to drastically reduce the
use of
tobacco, the rule of law continues to operate in this domain and regulatory
impulses
must be balanced by considerations of individual freedom and common sense;
III. THE BARS
____________
12. In particular, bars are places where adults often come for pleasure and
entertainment
and often associate drinking alcohol and smoking;
13. Some experience from other provinces indicate that the prohibition of
smoking in
bars has a drastic, negative effect on the frequentation of these
establishments;
14. Yet bars are a perfectly lawful form of entertainment, important and
pleasurable to
many consumers;
IV. THE LEGISLATION
__________________
15. In 1998 the National Assembly adopted the Tobacco Act (1998 L.Q.C. 33);
16. In 2005 this law was amended under Bill 112 and was made far more
restrictive th
the 1998 Act;
17. The existence of provincial power to regulate this field of human endeavour
is not
challenged;
18. Nor do Plaintiffs contest the appropriateness of many regulations and
restrictions;
19. Nevertheless, Plaintiff submits that the law as it stands is greatly
excessive and that
many of its measures are either ultra vires or inoperative;
V. THE DETAILED CLAIM
____________________
20. Art. 2.2 of the Tobacco Act as ended, is a violation of liberty rights and
therefore
inoperative;
21. In Art. 2 of the law as amended, paragr hs 6.1 and 6.2 are invalid and/or
inoperative
as violations of liberty rights and of freedom of association;
22. In Art. 2, paragraph 7.1 as amended, violates liberty rights;
23. In Art. 2, paragraph 7.2 as amended, is invalid and/or inoperative as a
violation of
equality rights; it is also incompatible with Sec. 45 of the Quebec Charter of
Rights
and Freedoms which operates as an interpretative tool;
24. In Art. 2, paragraphs 8 and 8.1 as amended, are inoperative and/or illegal
as violations
of liberty rights and freedom of association;
25. In Art. 2, the new paragraph 8.2 and 8.3 as amended, are invalid and/or
inoperative
as a violation of liberty rights;
26. In Art. 2, paragraph 9 as amended is so broad as to violate liberty rights;
27. In Art. 2, paragraph 10 as amended, is inoperative as a violation of liberty
rights;
28. In Art. 2, paragraph 12 is a violation of liberty and security rights and is
so broad as
to amount to cruel and unusual treatment;
29. Art. 3 as amended, is void for vagueness and violates freedom of association
and
liberty rights and it is therefore invalid and/or inoperative;
30. The abrogation of the former Arts. 4 and 6 and their replacement by the new,
Article
6, violates liberty and equality ri hts, therefore what remains of Art. 6 and
Art. 3 are
invalid and inoperative; as well as Articles 6 and 8 of the new law;
31. Art. 11 of the Act as amended, is invalid as it violates the presumption of
innocence
and liberty rights;
32. Art. 22 and 23 of the law as amended, are inoperative for the reasons given
by the
majority in the Court of Appeal in J.T.I. MacDonald Corporation v. P.G. Canada;
33. The law insofar as it affects bars is tantamount to the destruction of a
form of lawful
business;
34. The fact that the law does not permit smoking establishments and smoking
rooms for
clients (as opposed to employers) is a violation of liberty rights and of
freedom of
association;
35. Smoking constitutes lawful activity and the Tobacco Act has the effect of
making it
impossible for citizens to engage in it together, except in domiciles;
36. The paternalism and excessive reach of the law are not consistent with the
letter of
the law, as outlined above, and flagrantly violate the spirit of the law;
VI. THE DEFINITION
_________________
37. Liberty rights refers to Sections 2 and 7 of the Canadian Charter of Rights
and
Freedoms and Sec. 1 of the quebec Charter of Rights and Freedoms ;
38. Equality rights refer to Sec. 15 of the Canadian Charter of Rights and
Freedoms and
Sec. 10 of the Quebec Charter of Rights and Freedoms;
39. Details of the proposed application of the two Charters will be provided in
the notice
under sec. 95 of the Quebec Code of Civil Procedure;
VII. THE CONSEQUENCES
_____________________
40. The overreach and excess of the Tobacco Act are such that severance is
impossible
and would indeed be contrary to the intention of the legislator;
41. The entire law must therefore be set aside;
42. If the Court considered severance possible and practicable, all of the
sections of the
law considered above would have to be set aside as inoperative or illegal;
43. This must not prevent or preclude the adoption of more moderate laws to
discourage
consumption of tobacco, to promote information about it and to protect minors;
VIII. THE URGENCY
________________
44. It is important that the issue of the validity of the Tobacco Act be decided
before it
takes full effect on May 31,2006;
45. This is particularly crucial for bars in view of the disastrous effect on
their business of
similar legislation elsewhere;
46. If the law or part of it is set aside, the same considerations militate in
favour of a
judgment executory notwithstanding appeal;
IX. SEC. I OF THE CHARTER
_______________________
47. Nothing in this motion prevents a fair and effective policy of tobacco
control;
48. The excesses and paternalism of the law cannot be justified by any pressing
need;
49. Further, it is not clear that there is any logical connection between the
legitimate areas
of tobacco regulation and the protection of minors on the one hand and the
excesses
and injustices of the Tobacco Act as it stands at present on the other;
CONCLUSION
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WHEREFORE MAY IT PLEASE THIS HONOURABLE COURT TO :
ALLOW this action ;
DECLARE invalid and/or inoperative the Tobacco Act as it stands, or, in the
alternative, to declare invalid or inoperative sections Art. 2. (6. I), (6.2)
(7.1),
(7.2), Art. 8, (8.1), (8.2) and (8.3), (9). (10) (12), Art. 2.2, Art. 3, Art. 6,
Art. 11 ,
Art. 22 and Art. 23, and declare invalid and inoperative the abrogation of
Section 4;
The whole with costs and executory notwithstanding appeal;
MONTREAL, this 13th day of September 2005
(s) GREY, CASGRAIN
Attorneys for Plaintiffs