A man who did not want to be identified holds a lit cigarette while smoking in San Francisco, Wednesday, Dec. 2, 2020.  THE CANADIAN PRESS/AP-Jeff Chiu

Quebec court upholds fines to theatres where actors smoked during performances

Theatres had challenged the fines, claiming the tickets violated their freedom of expression

A Quebec court judge has upheld fines issued to three Quebec City theatres where actors smoked onstage during performances.

The theatres had challenged the fines, claiming the tickets violated their freedom of expression. They argued Quebec’s ban on indoor smoking goes too far, because it forbids actors seeking to capture a play’s essence from smoking even prop cigarettes onstage.

However, Judge Yannick Couture ruled that the act of smoking is not itself a form of expression. Because the debate was about how actors could portray smoking onstage — not whether actors could play a character who smokes — there was no infringement of their right to artistic expression, he found in a ruling Tuesday.

“The law and its regulations allow for the portrayal, the simulation, the playing or the acting as a person who smokes, which constitutes the expressive content that is not banned,” he wrote. “The ban is on the projection or inhalation of smoke from a tobacco product in a public place.” Smoking during a theatrical performance “is not expressive content, because no message is conveyed,” he added.

But Anne-Marie Olivier, the artistic director of Théâtre du Trident, one of the three theatres fined, said the smoking scene in her theatre’s production revealed how a character — an opera singer who had decided to stop singing — was sabotaging herself.

“When a performer decides to smoke onstage in character, it’s to say something specific to the viewer. For me, it has a specific meaning, so it’s not true that it doesn’t have meaning or it’s not expressive,” she said in an interview Wednesday. “When we say to artists, you can’t portray something realistically, that’s censorship.”

Couture wrote in his decision that theatres could find other ways to depict smoking, including using special effects. He noted that they regularly find ways to show other illegal activities onstage, such as murder and drug use.

However, Olivier said the actor at her theatre was smoking a cigarette containing the herb sage, not tobacco, when the fine was issued.

“It’s the only tobacco-free alternative we have,” she said. “If we had something else where we could create the hyperrealistic effect where you can inhale and exhale something, we would certainly use it.”

Quebec’s Tobacco Control Act says any products “that are put to one’s mouth to inhale any substance that may or may not contain nicotine” are forbidden in “enclosed spaces where activities of a sports or recreational, judicial, cultural or artistic nature are presented” or in any enclosed space where the public is admitted.

After another plaintiff in the case, Premier Acte theatre, got a $500 ticket in 2018, a Health Department spokeswoman said allowing smoking of anything in a location where it is forbidden violates the law.

“All products, whether they contain nicotine or not, that are destined to be smoked are considered to be under the tobacco law,” Marie-Claude Lacasse said at the time.

Olivier said she’s worried about the broader impact of the ban and that it could apply to movie sets as well as theatres. She said the theatre hasn’t yet decided whether it will appeal the decision.

—Jacob Serebrin, The Canadian Press

RELATED: Cannabis activist Jodie Emery gets mixed reactions after smoking on BC Ferry

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