Actors can smoke on stage, Quebec Court of Appeal rules

Quebec’s Court of Appeal has found that it is unconstitutional for the province to ban theatre actors from smoking during performances, upholding most of a lower-court ruling striking down fines issued to three theatres.

The province’s highest court found Wednesday that when an actor smokes a cigarette as part of a theatrical performance, it is a form of expression and that the harm to freedom of expression caused by a provincial law that banned actors from smoking on stage outweighed any benefits provided by the law.

“The negative effects the ban has on freedom of expression are significant and tangible, as the restriction may result in a play not being produced or certain aspects of a work being censored. This is a serious negative consequence not only for creators but also for the entirety of audience that attends theatrical performances,” Justice Judith Harvie wrote for the three-judge panel.

The government had appealed a Superior Court decision striking down $500 fines issued to three Quebec City theatres, Le Théâtre du Trident, Le Théâtre de la Bordé and Premier Acte, that had allowed actors to smoke during performances between 2017 and 2019, arguing that the ban was justified because there is “no safe exposure threshold for second-hand smoke in enclosed spaces.”

Harvie found that exposure to smoke during a theatrical performance would be limited and that “the benefit achieved by the ban is in fact negligible.”

While the government had argued actors could simulate smoking, use fake cigarettes, or hold an unlit cigarette, Harvie didn’t accept that argument, referencing testimony made by the director of one of the plays that led to a theatre being ticketed.

David Strasbourg, who is also an actor, testified in a lower court that in the play Conversations avec mon pénis one of the characters smokes a cigarette to demonstrate his existential crisis and anxiety after being diagnosed with testicular cancer.

Using a fake cigarette would not have the same effect, the judge quotes him as saying. “It’s obvious that it’s not true … it’s like making a character drink a beer from a baby bottle.”

It its unanimous decision, the appeal court limited the lower court ruling — which had exempted participants and organizers of an artistic or cultural performance from part of Quebec’s tobacco law — so that it only applies to actors who are taking part in an artistic or cultural performance.

However, unlike the Superior Court, which had suspended its 2024 ruling for one year, to allow the government to adapt, the Appeal Court ruling goes into immediate effect.

Louis-Philippe Lampron, a lawyer for the theatres, said that change is better because it is simpler to apply and because theatres will immediately be able to take advantage of the ruling, if the Quebec government does not attempt to appeal it.

“It’s a unanimous ruling by the Court of Appeal on both the principles concerning artistic freedom of expression and on the rejection of the justification put forward by the government,” he said in an interview. “It’s difficult to be more satisfied.”

The Quebec government has 60 days to seek permission to appeal the decision to the Supreme Court of Canada. A spokesperson for Justice Minister Simon Jolin-Barette did not immediately respond to a request for comment Thursday on whether the government will attempt to appeal.

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