Quebec theatres can feature actors smoking on stage, judge rules after appeal

Quebec theatres should be able to feature actors smoking cigarettes on stage, a Quebec Superior Court judge ruled after three theatres appealed a previous judgment upholding fines against them by the province's Health Ministry.

The Trident, La Bordée and Premier Acte theatres were fined between 2017 and 2019 for letting actors smoke sage cigarettes as part of the performance. In all three cases, a complaint from an audience member led the ministry to send inspectors to the theatres during performances.

Each theatre was fined $500 for violating the Tobacco Control Act. The theatres contested the fines in court, saying they constituted an attack on their artistic freedom. But they were initially upheld by Quebec Court Judge Yannick Couture in a 2021 decision.

Couture said smoking on stage wasn't an expressive gesture and did not convey any message. He invited directors to use props or have actors pretend they were smoking.

The theatres appealed. Their leaders said Couture's judgment set a serious precedent against them. Their fight, they said, was not to claim the right to smoke on stage, but to represent reality — and that that could not believably be done by miming or using props.

Superior Court Justice Jean-François Émond agreed with them in his decision published this week.

'Worrying' violation of artistic expression

"Violations of the right to freedom of artistic expression in all [its] forms are worrying, given the importance that our society attaches to it," Émond wrote.

The judge said that while the province's ban on smoking in public places is valid, "the particular context of a theatrical performance" doesn't meet the goals of that ban.

He said spectators are presumed to be reasonable and aware of the risk they take by going to the theatre of being exposed to representations of unhealthy behaviours.

"This choice is no different from that made by a person who agrees to visit a friend who smokes in their presence in a private place," Émond wrote.

Anne-Marie Olivier, artistic director of Théatre du Trident, had called the 2021 Quebec Court decision 'unacceptable' and vowed to fight it. (Radio-Canada)

He said Couture had erred in relying on previous cases whose facts were irrelevant to the situation the theatres were contesting. One of those cases involved a man who had complained of not being able to smoke in a bar for his pleasure.

"That judgment did not have precedential value and the trial judge erred in relying on it," Émond said.

Émond's decision invalidates certain aspects of Quebec's Tobacco Control Act, including the ban on smoking in cultural or artistic spaces. The judge suspended his invalidations of the law for a year, giving the provincial government time to adjust the legislation's wording "to provide for exceptions, limits or other terms applicable to the field of the arts," he wrote.

Fake cigs don't cut it, says artistic director

One of the plays that prompted a Ministry of Health penalty — Le cas Joé Ferguson at the Trident theatre in Quebec City — featured a character who had stopped smoking.

Reacting to the 2021 Quebec Court judgment, Trident artistic director Anne-Marie Olivier said that the act of that character smoking in the play "showed the extent to which they were breaking down, that they were in a crisis situation in their life."

"When we do that, it's not trivial, it's not gratuitous. It is part of the representation of life and it is at the heart of the artistic discipline," Olivier had said.

Another play, held at Premier Acte, also in Quebec City, was called Conversations avec mon pénis. The character smoked a sage cigarette while having an argument with a woman in a giant penis suit.

Mary-Lee Picknell, left, and Marc-André Thibault star in Conversations avec mon pénis at the Premier Acte theatre in Quebec City. (CathLanglois Photographe)

Marc Gourdeau, Premier Acte's artistic director, told CBC's As It Happens in 2018 it was "a very good play about the male condition."

"At a certain point, when you are at the theatre, you are led to believe in the improbable," he said. "If you pull out a fake cigarette that glows red on the end and you don't light it, you stop believing."