Chapter VIII


Last updated : 22/01/01

CHAPTER VIII

COMMERCIAL EXPRESSION

A. INTRODUCTION VIII-2

B. SECTION 2(B) VIII-3

Ford v. Quebec (A.G.) VIII-3

C. REASONABLE LIMITS UNDER S. 1 VIII-7

Irwin Toy Ltd. v. A-G of Quebec VIII-7

Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code VIII-14

Rocket v. Royal College of Dental Surgeons of Ontario VIII-20

RJR - MacDonald Inc. v. A-G Canada VIII-26

Bill C-71, Tobacco Act, 1996 VIII-42

D. AMERICAN JURISPRUDENCE VIII-50

A note on the First Amendment jurisprudence VIII-50

A. INTRODUCTION

This Chapter examines the status of commercial expression under the Charter. Although the Supreme Court of Canada concluded that commercial expression is covered by s.2(b) in Ford v. A-G Quebec, and reinforced that conclusion in Irwin Toy, it is worthwhile nonetheless to question that decision and examine the Court's reasons for extending the Charter's protection to pure commercial expression.

For example, is the Court's protection of commercial expression a backhanded way of introducing laissez faire values into a document that was not intended to protect economic rights? Do the decisions in Ford and Irwin Toy raise concerns about the consequences for a complex framework of provincial and federal regulations which apply to virtually all aspects of business promotion - advertising, marketing, distribution and labelling. Perhaps the tobacco advertising decision is a case in point. In hindsight, does it now seem more desirable to limit the Charter's protection of commercial expression under section 2(b)? If it does, what problems of definition would that present? Are they so intractable that the status of commercial expression can only be decided through and all or nothing approach?

The Supreme Court of Canada's decision to protect commercial expression under s. 2 (b) has unarguably placed enormous pressure on s.1 and the Oakes test. At present, Oakes governs in all cases in which an initial breach of the Charter has been found. As the tobacco advertising decision illustrates, cases dealing with commercial expression raise concerns about the wisdom of extending the same level of protection to all expressive activity. Is it realistic for the Supreme Court of Canada to cling to the concept of a universal and monolithic standard of justification under section 1? Alternatively, is it more appropriate to acknowledge a hierarchy of values?

If you agree that commercial expression issues should be judged by a more deferential standard of review, how explicit should any issue-specific standard be? Is it sufficient for the Court to adjudicate these cases on an ad hoc basis, rationalized only by a vague concept of "contextualization"? Is Irwin Toy's distinction between the state as singular antagonist and the state as protector a helpful contextual concept?

The cases included in this section are intended to raise questions both about the status of commercial expression under section 2(b) and the appropriate standard of justification under section 1.

Of topical interest are restrictions on advertisements or the solicitation of activities that are considered harmful or immoral. At least for now, the Supreme Court of Canada's decision upholding Criminal Code provisions prohibiting the solicitation of prostitution provides the governing standard. Of particular interest is the Supreme Court's decision on tobacco advertising in R.J.R. MacDonald v. A-G Canada. We will also look at the nature and scope of restrictions on professional advertising.

B. SECTION 2(B)

Ford v. Quebec (A.G.)

[1988], 2 S.C.R. 712

[In Ford, the Court held that the province of Quebec's prohibition on English language commercial advertising was unconstitutional. Quebec responded by invoking the override in Bill 178. This excerpt deals only with the Court's discussion of commercial expression under s.2(b).]

VIII. Whether the Guarantee of Freedom of Expression Extends to Commercial Expression

... [T]here cannot be a guaranteed freedom to express oneself in the language of [] choice in respect of a form or kind of expression that is not covered by [s.2(b)]. The question whether [s.2(b)] extends to [commercial expression]... is therefore an issue....

Because, [], the American experience with the First Amendment protection of "commercial speech" was invoked in argument, ... it is convenient to make

brief reference to it....

[In] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc.[], the [U.S. Supreme Court] [repudiated] the notion that commercial speech constituted an unprotected exception to the First Amendment guarantee. Virginia Pharmacy concerned a Virginia statute which prohibited pharmacists from advertising prices for prescription drugs. The statute was challenged by customers who asserted a First Amendment right to receive drug price information.... The speech at issue was purely commercial in that it simply proposed a commercial transaction. By holding that price advertising was not outside the First Amendment, the court rejected the central premise of the commercial speech doctrine - that is, that business advertising which merely solicits a commercial transaction is susceptible to government regulation on the same terms as any other aspect of the marketplace. ... Justice Blackmun [focused] on the informative function of the speech from the point of view of the listener whose interest, it was said, "may be as keen, if not keener by far, than his interest in the day's most urgent political debate" []....The reasons are careful to note, however, that although commercial speech is protected it is entitled to a lesser degree of protection than that afforded to other forms of speech. The court rejected the argument that the public could be kept in ignorance to prevent lawful conduct that the government deems harmful, stating that "people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them"[]....

By 1980, when the court decided Central Hudson Gas and Electric Corp. v. Public Service Comm'n,[]...Justice Powell...formulated a four-part analysis ... which he summed up as follows at p.566 U.S.:

... At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest....

It has been observed that this test is very similar to the [Oakes] test .... The Central Hudson test has been described as "an uneasy compromise', between competing strains of commercial speech theory. It is an attempt to balance the legitimacy of government regulations intended to protect consumers from harmful commercial speech with the belief that a free market in ideas and information is necessary to an informed and autonomous consumer....

In the Court of Appeal, Bisson J.A. applied the judgment of the majority of the court on this issue in Irwin Toy Ltd. v. Quebec (A.G.),[].... In Irwin Toy, Jacques J.A. held that there was no basis on the face of s.2(b) ... for distinguishing ... between different kinds of expression, whether they be of a political, artistic, cultural or other nature. He held that commercial expression was as much entitled to protection as other kinds of expression because of the important role played by it in assisting persons to make informed economic choices. He added, however, that commercial expression might be subject to reasonable limits under s.1... of a kind that would not be reasonable in the case of political expression....Vallerand J.A. [agreed with] the rationale for the protection of commercial expression reflected in the American cases....

The submissions of the [A-G] of Quebec ... may be summarized as follows. The scope of a guaranteed freedom must be determined, as required by [Big M][] in the light of the character and larger objects of the Canadian Charter and the linguistic, philosophic and historical context of the particular freedom. There is no historical basis for a guarantee of freedom of commercial expression in pre-Charter jurisprudence, in which recognition was given, on the basis of the division of powers and the "implied bill of rights", to freedom of political expression. Freedom of expression appears in both the Canadian Charter and the Quebec Charter under the heading of "Fundamental Freedoms"; there is nothing fundamental about commercial expression. A guarantee of freedom of expression which embraces commercial advertising would be the protection of an economic right, when both the Canadian Charter and the Quebec Charter clearly indicate that they are not concerned with the protection of such rights. The American decisions recognizing a limited First Amendment protection for commercial speech must be seen in the context of a Constitution that protects the right of property.... This Court, in refusing to constitutionalize the right to strike, has recognized that the Canadian Charter does not extend to economic rights or freedoms. To extend freedom of expression beyond political expression, and possibly artistic and cultural expression, would trivialize that freedom and lead inevitably to the adoption of different justificatory standards under s.1 according to the kind of expression involved. The terms of s.1 ... do not permit of such differential application.... As the American experience shows, the recognition of a limited protection for commercial expression involves an evaluation of regulatory policy that is better left to the Legislature....

It is apparent to this Court that [s.2(b)] cannot be confined to political expression.... But [it] is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society.

The post-Charter jurisprudence of this court has indicated that [s.2(b)] is not to be confined to political expression. In [Dolphin Delivery] ... the court recognized that the constitutional guarantee of freedom of expression extended to expression that could not be characterized as political expression in the traditional sense but, if anything, was in the nature of expression having an economic purpose ....

[Here] it is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display or, more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.

In our view, the commercial element does not have this effect. Given the earlier pronouncements of this court to the effect that the [Charter's] rights and freedoms ...should be given a large and liberal interpretation, there is no sound basis on which commercial expression [can be excluded from s.2(b)] .... Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers and plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfilment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.

Rather, the expression contemplated by ss.58 and 69 of the Charter of the French Language is expression within the meaning of (s.2(b)] ....

Notes and questions

1. Does the Supreme Court of Canada explain its conclusion that commercial expression has "intrinsic value"? On what basis does the Court extend protection to commercial expression under section 2(b): Is it because the speaker has an interest that warrants constitutional recognition, or otherwise, because listeners have an entitlement to information that should be protected by the Charter? Does it make any difference whether the decision to protect commercial expression is rationalized by reference to the speaker or the audience?

2. Are you persuaded that the Court adequately answered the concerns expressed in Klein and Dvorak, and reinforced by the A-G of Quebec? In light of recent jurisprudence favouring a more restrictive interpretation of the scope of section 2(b), does it now seem that the Court was too hasty in concluding that "there is no sound basis on which commercial expression can be excluded from section 2(b)"?

3. What about levels of scrutiny? Should the Supreme Court of Canada treat all categories of speech as equal, and apply the Oakes test in all cases of interference with expressive freedom? Alternatively, should the Court recognize a hierarchy of values? Would it be preferable for the Court to apply issue-specific standards of justification under s.1, like the U.S. Supreme Court does?

4. In Ford, the Supreme Court of Canada claims that the Oakes test and Central Hudson are very similar. Do you agree with that statement? Do you see any relevant differences between the Canadian and American tests?

C. REASONABLE LIMITS UNDER S. 1

Irwin Toy Ltd. v. A-G of Quebec

[1989] 1 S.C.R. 927

[see supra, Chapter III for the Court's analysis of s.2(b). The Court's discussion of the Quebec Charter, the vagueness challenge and the relevance of evidence under s. 1 are omitted. Discussion of s.7 is also omitted. The relevant provisions of the Quebec Consumer Protection Act are as follows:

248. Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.

249. To determine whether or not an advertisement is directed at persons under thirteen years of age, account must be taken of the context of its presentation, and in particular of

(a) the nature and intended purpose of the goods advertised;

(b) the manner of presenting such advertisement;

(c) the time and place it is shown.]

Dickson C.J., Lamer and Wilson JJ.

a. Pressing and Substantial Objective

...Because we have already found that the plaintiff's activity falls within the sphere of conduct protected by freedom of expression and that the purpose of the legislation is to prohibit particular content of expression...it is far from onerous to require that the concern underlying the restrictive legislation be a pressing and substantial one. Without such a high standard of justification, enshrined rights and freedoms would be stripped of most of their value.

In our view,... the concern which prompted the enactment of the impugned legislation is pressing and substantial....The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.... The material given in evidence before this Court is indicative of a generalized concern in Western societies with the impact of media, and particularly but not solely televised advertising, on the development and perceptions of young children. [] Broadly speaking, the concerns which have motivated both legislative and voluntary regulation in this area are the particular susceptibility of young children to media manipulation, their inability to differentiate between reality and fiction and to grasp the persuasive intention behind the message, and the secondary effects of exterior influences on the family and parental authority. Responses to the perceived problems are as varied as the agencies and governments which have promulgated them. However the consensus of concern is high.

In establishing the factual basis for this generally identified concern, the Attorney General relied heavily upon the U.S. Federal Trade Commission (FTC) Final Staff Report and Recommendation, In the Matter of Children's Advertising, which contains a thorough review of the scientific evidence on the subject as at 1981....One of its principal conclusions is that young children (2-6) cannot distinguish fact from fiction or programming from advertising and are completely credulous when presented with advertising messages....

The Report thus provides a sound basis on which to conclude that television advertising directed at young children is per se manipulative....

It is reasonable to extend this conclusion in two ways. First, it can be extended to advertising in other media.... Second, it can be extended to advertising aimed at older children (7-13). The Attorney General filed a number of studies reaching somewhat different conclusions about the age at which children generally develop the cognitive ability to recognize the persuasive nature of advertising and to evaluate its comparative worth. The studies suggest that at some point between age seven and adolescence, children become as capable as adults of understanding and responding to advertisements. The majority in the Court of Appeal interpreted this evidence narrowly and found that it only justified the objective of regulating advertising aimed at children six or younger, not the regulation of advertising aimed at children between the ages of seven and thirteen. They concluded, and we agree, that the evidence was strongest with respect to the younger age category. Opinion is more divided when children in the older age category are involved. But the legislature was not obliged to confine itself solely to protecting the most clearly vulnerable group. It was only required to exercise a reasonable judgment in specifying the vulnerable group....

Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for another. In dealing with inherently heterogeneous groups defined in terms of age or a characteristic analogous to age, evidence showing that a clear majority of the group requires the protection which the government has identified can help to establish that the group was defined reasonably. Here, the legislature has mediated between the claims of advertisers and those seeking commercial information on the one hand, and the claims of children and parents on the other. There is sufficient evidence to warrant drawing a line at age thirteen, and we would not presume to re-draw the line....

In sum, the objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation, viz. to protect a group that is most vulnerable to commercial manipulation.... The legislature reasonably concluded that advertisers should be precluded from taking advantage of children both by inciting them to make purchases and by inciting them to have their parents make purchases.... The s.1 [] materials demonstrate, on the balance of probabilities, that children up to the age of thirteen are manipulated by commercial advertising and that the objective of protecting all children in this age group is predicated on a pressing and substantial concern....

b. Means Proportional to the Ends

The second part of the s. 1...test involves balancing a number of factors to determine whether the means chosen by the government are proportional to its objective....

i. Rational Connection

There can be no doubt that a ban on advertising directed to children is rationally connected to the objective of protecting children from advertising. The government measure aims precisely at the problem identified in the ... materials. It is important to note that there is no general ban on the advertising of children's products, but simply a prohibition against directing advertisements to those unaware of their persuasive intent. Commercial advertisements may clearly be directed at the true purchasers-parents or other adults. Indeed, non-commercial educational advertising aimed at children is permitted. simply put, advertisers are prevented from capitalizing on the inability of children either to differentiate between fact and fiction or to acknowledge and thereby resist or treat with some scepticism the persuasive intent behind the advertisement. In the present case, we are of the opinion that the evidence does establish the necessary rational connection between means and objective....

ii. Minimal Impairment

...The party seeking to uphold the limit must demonstrate on a balance of probabilities that the means chosen impair the freedom or right in question as little as possible. What will be "as little as possible" will of course vary depending on the government objective and on the means available to achieve it....

Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude....

When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function....

In other cases, however, rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. For example, in justifying an infringement of legal rights enshrined in ss. 7 to 14 of the Charter, the state, on behalf of the whole community, typically will assert its responsibility for prosecuting crime whereas the individual will assert the paramountcy of principles of fundamental justice. There might not be any further competing claims among different groups. In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen.... The same degree of certainty may not be achievable in cases involving the reconciliation of claims of competing individuals or groups or the distribution of scarce government resources.

In the instant case, the Court is called upon to assess competing social science evidence.... The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective.

The strongest evidence for the proposition that this ban impairs freedom of expression as little as possible comes from the FTC Report. Because the Report found that children are not equipped to identify the persuasive intent of advertising, content regulation could not address the problem. The Report concluded that the only effective means for dealing with advertising directed at children would be a ban on all such advertising....However, the Report also...counselled against a ban []:

[T]he record establishes that the only effective remedy would be a ban on all advertisements oriented toward young children, and such a ban, as a practical matter, cannot be implemented.

The Report gave two reasons why a ban could not be implemented.... First,... viewing audiences were not so sufficiently segmented that one could implement a total ban on advertising during time periods when, on the basis of television ratings, programming is directed at young children. Only one network program was identified as attracting a viewing audience composed, over 30%, by young children. Second, if the percentage were relaxed to, say, 20%, a total ban on advertising would catch too many non-children and would still fail to catch all programs frequently watched by young children....

Sections 248 and 249 preserve the rationale for a ban contained in the FTC Report at the same time as overcoming the practical limitations suggested therein.... By specifying categories of (1) products, (2) advertisements and (3) audience, the Guidelines allow for a sophisticated appraisal of when an advertisement is aimed at children. These three categories are drawn directly from s. 249 and their elaboration by the office is an attempt to perform the same balancing test required of the courts. Three categories of products are specified: (1) those aimed exclusively at children (toys, and certain candies and foods); (2) those having a large attraction for children (certain cereals, desserts and games); and (3) those aimed at adults. Four categories of advertisements are specified: (1) those not likely to interest children; (2) those not designed to interest children; (3) those directed only partly to children; and (4) those aimed mainly at children. Three categories of audience are specified: (1) children compose over 15%; (2) children compose between 5% and 15%; and (3) children compose less than 5%. On this basis, the Guidelines set forth a table according to which different kinds of advertisements for the various product categories will be permitted depending upon audience composition. There is a system of preclearance run by a committee of the Office which helps advertisers to determine whether any given commercial is subject to the ban.

While ss. 248 and 249 do not incorporate all the details included in the Guidelines, they do put into place the framework for a practicable ban on advertising directed at children....

Of course, despite the FTC Report's conclusions to the contrary, the respondent argued that a ban was not the only effective means for dealing with the problem posed by children's advertising. In particular, it pointed to the self-regulation mechanism provided by the Broadcast Code for Advertising to Children....But having identified advertising aimed at persons under thirteen as per se manipulative, the legislature of Quebec could conclude, just as reasonably, that the only effective statutory response was to ban such advertising.

In sum, [w]hile evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups ....

iii. Deleterious Effects

There is no suggestion here that the effects of the ban are so severe as to outweigh the government's pressing and substantial objective. Advertisers are always free to direct their message at parents and other adults. They are also free to participate in educational advertising. The real concern animating the challenge to the legislation is that revenues are in some degree affected. This only implies that advertisers will have to develop new marketing strategies for children's products .... The final component of the proportionality test is easily satisfied....

McIntyre J., dissenting (Beetz J., concurring)

While I agree with them that ss. 248 and 249 of the Consumer Protection Act infringe s. 2(b), ... I do not agree that they may be justified....

... I would say that freedom of expression is too important to be lightly cast aside or limited. It is ironic that most attempts to limit freedom of expression and hence freedom of knowledge and information are justified on the basis that the limitation is for the benefit of those whose rights will be limited. It was this proposition that motivated the early church in restricting access to information, even to prohibiting the promulgation and reading of the scriptures in a language understood by the people. The argument that freedom of expression was dangerous was used to oppose and restrict public education in earlier times. The education of women was greatly retarded on the basis that wider knowledge would only make them dissatisfied with their role in society. I do not suggest that the limitations imposed by ss. 248 and 249 are so earth shaking or that if sustained they will cause irremediable damage. I do say, however, that these limitations represent a small abandonment of a principle of vital importance in a free and democratic society and, therefore, even if it could be shown that some child or children have been adversely affected by advertising of the kind prohibited, I would still be of the opinion that the restriction should not be sustained. our concern should be to recognize that in this century we have seen whole societies utterly corrupted by the suppression of free expression. We should not lightly take a step in that direction, even a small one.

It must be recognized that freedom of expression despite its singular importance is, like all rights, subject to limitations. It is not absolute. We have all heard the familiar statement that nobody has a right to shout "fire" in a crowded theatre. it illustrates the extreme and obvious case, but there will, of course, be other cases where limitations on the right may well be necessary and therefore justifiable. This, however, in my view, is not such a case. Freedom of expression, whether political, religious, artistic or commercial, should not be suppressed except in cases where urgent and compelling reasons exist and then only to the extent and for the time necessary for the protection of the community.

In my view, no justification can be found under s. 1 of the Charter for these sections, and I would dismiss the appeal ...

Notes and Questions

1. Do you agree with the majority's section 1 analysis, which culminated in the conclusion that this legislation satisfied the requirements of proportionality? More specifically, does it satisfy the doctrinal requirements of rational connection and minimal impairment? Did the Court uphold this legislation because it complied with Oakes's requirements, or because it considered it appropriate to defer to the legislature's judgment in this case? How should that instinct be formalized, in doctrinal terms?

2. Does the Court's distinction, for purposes of section 1 review, between the state as singular antagonist and the state as regulator of competing claims, seem workable? The state surely functions as an antagonist when it restricts the activities of businesses through regulations which impose serious fines and in some cases allow for imprisonment. How viable is the distinction the Court has drawn?

3. What is a vulnerable audience? Any audience that the legislature designates vulnerable? Are those who are exposed to tobacco advertising an inherently vulnerable audience? Are we all susceptible to the temptations of "lifestyle advertising"? See R. Moon, "Lifestyle Advertising and Classical Freedom of Expression Doctrine", (1991), 36 McGill L.J. 76.

Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code

[1990] 1 S.C.R. 1123

Dickson C.J. (La Forest and Sopinka JJ., concurring)

[These provisions of the Code prohibiting the public solicitation of sexual services were challenged under ss. 2(b) and 7 of the Charter. The discussion of ss. 2(b) and 7 are omitted.]

... The first step in the [s.1] analysis... is to characterize the legislative objective of the impugned provision.

The Criminal Code provision...clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children. In my opinion, the eradication of the nuisance-related problems caused by street solicitation is a pressing and substantial concern....

I turn now to the issue of proportionality. With respect to the question of rational connection between the impugned legislation and the prevention of the social nuisance associated with the public display of the sale of sex, I agree...that such a connection exists. The next step is to determine whether ... the means impair the right as little as possible and of the effects and reasonableness of the limits imposed.

I start by considering the nature of the expression and the nature of the infringing legislation.... Parliament, through s. 195.1(1)(c) .... has chosen to use the criminal justice system to prosecute individuals [for exercising] their freedom of expression. When a Charter freedom has been infringed by state action that takes the form of criminalization, the Crown bears the heavy burden of justifying that infringement. Yet, the expressive activity, as with any infringed Charter right, should also be analyzed in the particular context of the case. Here, the activity to which the impugned legislation is directed is expression with an economic purpose. It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression....

Can effective yet less intrusive legislation be imagined? The means used to attain the objective of the legislation may well be broader than would be appropriate were actual street nuisance the only focus. However, as I find the objective to extend to the general curtailment of visible solicitation for the purposes of prostitution, it is my view that the legislation is not unduly intrusive.

It is legitimate to take into account the fact that earlier laws and considered alternatives were thought to be less effective than the legislation that is presently being challenged. When Parliament began its examination of the subject of street soliciting, it was presented with a spectrum of views and possible approaches .... The legislative scheme ... need not be the "perfect" scheme that could be imagined by this Court or any other court. Rather, it is sufficient if it is appropriately and carefully tailored in the context of the infringed right. I find that this legislation meets the test of minimum impairment of the right in question. ...

The final question ... is whether the effects of the law so severely trench on a protected right that the legislative objective is outweighed by the infringement.... I find that the obtrusiveness linked to the enforcement of the provision, when weighed against the resulting decrease in the social nuisance associated with street solicitation, can be justified in accordance with s. 1 ....

Lamer J. (concurring)

Section 195.1 of the Criminal Code provides:

195.1(1) Every person who in a public place or in any place open to public view

(a) stops or attempts to stop any motor vehicle,

(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or

(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

The Legislative Objective

... One of the primary objectives of the s. 195.1(1) (c) is to curb the nuisances caused by the public or "street" solicitation of prostitutes and their customers.... The nuisance aspect of the law, as it relates to traffic problems, is not, however, its only objective.... In this case [] we are dealing with a particular form of activity that brings with it other associated criminal activity, and which, ... is at its most basic level a form of slavery....

In my view part of the legislative objective in enacting s. 195.1(1)(c) is to give law enforcement officials a way of controlling prostitution that occurs in the "street" as it were. It is in the street that many prostitutes begin in the trade as young runaways from home. The streets provide an environment for pimps and procurers to attract adults...and adolescents into the trade.... Quite often, it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control. This leads ultimately to a relationship of dependency which is often reinforced by the pimp getting the prostitute addicted to drugs which are used to exercise control over the prostitute. In that process the pimp's control over the prostitute is such that physical violence and in some cases brutality is not uncommon. Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. In this regard the impugned section aims at minimizing the public exposure of this degradation.... Further, it is not just the exposure to potential entrants into the trade that is of concern to the legislators. An additional aspect ... is the fact that many persons who are not interested in prostitution are often propositioned either as prostitutes or prospective customers.

In sum then, I find that the legislative objectives of the section go beyond merely preventing the nuisance of traffic congestion and general street disorder. There is the additional objective of minimizing the public exposure of an activity that is degrading to women with the hope that potential entrants in the trade can be deflected...and to restrict the blight that is associated with public solicitation for the purposes of prostitution....

Proportionality Test

1. Rational Connection

... In my view, [s. 195.1] is rationally connected to the objectives of curbing nuisances and related criminal activities associated with public solicitation of prostitution.... Regulating or prohibiting the cause is at least one method of controlling its effects. A piece of legislation that proceeds upon such a premise does, in my view, exhibit a rational connection between the measures and the objective ....

2. The Limit Should Impair As Little As Possible

...The current version of s. 195.1 was passed by Parliament after the proclamation of the Charter. During the lengthy consideration of how to deal with the problem of street solicitation, ... various alternatives were explored and certainly Charter considerations were adverted to and raised.... What is at issue then, is whether there is some reasonable alternative scheme which would allow the government to achieve its objective with fewer detrimental effects on the freedom....

A determination of the degree of the impairment of the section on the freedom in question is not a purely theoretical exercise. The assessment of the impairment should have regard for the nature of the incursion and the context in which it takes place. In terms of s. 195. 1 (1) (c) , there is not a complete impairment of freedom of expression. There is no doubt that the section applies to all forms of communication. It is however, limited to those forms used in a public place or a place open to public view. The impairment is additionally restricted by subject matter; only communications made for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute are prohibited....

Shortly stated then, the impairment of freedom of expression is limited by place and purpose. It is only when the communication occurs in a context wherein the proscribed place and purpose coincide that the section becomes engaged and the freedom, correspondingly, is impaired.... This link between place and purpose in the legislation is reflective of the tailoring of the means used to the legislative objective of preventing the mischief that is produced by the public solicitation of sexual services ....

In my view then, the section at issue does impair freedom of expression as little as reasonably possible in order to achieve the legislative objective.... The issue for this Court to determine is not whether Parliament has weighed those pressures and interests wisely, but rather whether the limit they have imposed... is reasonable and justified....

... I conclude, in view that the extent of the restriction on freedom of expression is limited to place and purpose, that the impact on these integral principles of a free and democratic society is minimal ....

Wilson J., dissenting (L'Heureux-Dubé concurring)

None of the counsel... seriously argued that the nuisance caused by street solicitation, at least in the major centres of population in the country, was not a pressing and substantial concern. ...

The next question under Oakes is whether s. 195.1(1) (c) is rationally connected to the prevention of the nuisance. I believe it is. The logical way to prevent the public display of the sale of sex and any harmful consequences that flow from it is through the twofold step of prohibiting the prostitute from soliciting prospective customers in places open to public view and prohibiting the customer from propositioning the prostitute likewise in places open to public view. If communication for this purpose or attempts to communicate for this purpose are criminalized it must surely be a powerful deterrent to those engaging in such conduct.

But is the legislation proportionate... ?

The [A-G] of Canada described the legislation as "time and place regulation" .... He argued that the net effect of the legislation is merely to remove the transaction of the business of prostitution from public places. It is no different, he submitted, from regulating the conditions under which other businesses must operate. The Attorney General further submitted that no business enterprise should be free to preempt a public place for its own commercial gain.... [O]ne of the purposes of s. 195.1 is to diffuse the activities associated with prostitution and ensure that prostitutes, like retailers and consumers, conduct their activities on private premises and in a way which will avoid the creation of a nuisance to others.

... [T]he [A-G] has overlooked a number of significant aspects of the impugned legislation which go directly to [its] proportionality. The first is that it criminalizes communication or attempted communication for the prohibited purpose in any public place or place open to public view. "Public place" is then expanded in subs. (2) to include any place to which the public have access as of right.... [T]he prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it. The prohibited communication may be taking place in a secluded area of a park where there is no-one to see or hear it. It will still be a criminal offence under the section. Such a broad prohibition as to the locale of the communication would seem to go far beyond a genuine concern over the nuisance caused by street solicitation.... It enables the police to arrest citizens who are disturbing no-one solely because they are engaged in communicative acts concerning something not prohibited by the Code. It is not reasonable, in my view, to prohibit all expressive activity conveying a certain meaning... simply because in some circumstances and in some areas that activity may give rise to a public or social nuisance.

I note also the broad scope of the phrase "in any manner communicates or attempts to communicate". It would seem to encompass every conceivable method of human expression.... The proverbial nod or wink may be enough.... Some definitional limits would appear to be desirable in any activity labelled as criminal.

[U]nder para. (c) no nuisance or adverse impact of any kind on other people need be shown, or even be shown to be a possibility.... Yet communicating or attempting to communicate with someone in a public place [for] the sale of sexual services does not automatically create a nuisance any more than communicating or attempting to communicate with someone on the sidewalk to promote a candidate for municipal election. Moreover, ... prostitution is itself a perfectly legal activity and the avowed objective of the legislature was not to make it illegal but only ... to deal with the nuisance created by street solicitation. [T]o render criminal the communicative acts of persons engaged in a lawful activity which is not shown to be harming anybody cannot be justified by the legislative objective advanced in its support. The impugned provision is not sufficiently tailored ... and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant....

Notes and Questions

1. Is it self-evident to you that this type of activity should be protected by section 2(b)? Dickson C.J. simply asserted that "the scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution". Lamer J. held that the section "aims at prohibiting a particular content of expression and at prohibiting access to the message sought to be conveyed". Wilson J. stated that economic choices are for the citizen to make, whether the citizen is negotiating for the purchase of a Van Gogh or a sexual encounter.

Does this expressive activity convey any message other than "sex for dollars"? Is it more akin to panhandling, which was found not to be protected by the first amendment in the Young case? Or is the solicitation of an act of prostitution more like product information the consumer is entitled to have?

2. Why should the courts be less willing to tolerate the nuisance inherent in street prostitution than in a variety of street activities like hawking, peddling, petty sales and pamphleteering? Dickson's argument essentially rests on a secondary consequences rationale, which, as discussed in Barnes v. Glen Theatre, [] raises minimal impairment problems. Likewise, in this case, it can be argued that, as long as the state can regulate actual nuisances as they occur, it is unjustifiable to prohibit the expressive activity itself. Is that argument persuasive?

3. Is moral disapproval of prostitution part of the subtext here? In essence, isn't that Lamer's argument? Do you think it is appropriate for Parliament to prohibit expressive activity in order to indicate its moral disapproval of the conduct it promotes? Is the moral discomfort of those who may pass by prostitutes or even be confronted by them a relevant consideration?

4. Justice Wilson's dissenting opinion emphasizes that, although the act of prostitution is itself not illegal, its solicitation on streets is nonetheless. Given that expressive activity is specifically protected by the Charter, and that mere conduct is not, how is it possible for Parliament to regulate the solicitation of an activity which is not itself illegal? This question resurfaces in the Posadas and R.J.R. cases, infra.

5. Is the prohibition on the solicitation of prostitution only justifiable for acts of solicitation that occur in the streets? Does the prohibition itself speak exclusively in terms of streets, as opposed to other public places? Once the Court has declared the legislation valid, can it apply to any "public" act of solicitation? You may recall that, last year, Metro Toronto commenced a prosecution against NOW under this provision, for running ads by prostitutes. Although the prosecution was abandoned, do you think it would have had any chance of succeeding?

Rocket v. Royal College of Dental Surgeons of Ontario

[1990] 2 S.C.R. 232

McLachlin J.

... Dr. Howard Rocket and Dr. Brian Price are dentists [who] were prominently featured in an advertisement published in a number of Canadian magazines and newspapers under the heading "New Faces of the Canadian Establishment". Alongside photographs of the two dentists the following text appeared:

Drs. Howard Rocket and Brian Price, Founders, Tridont Dental Centres, at the Holiday Inn, Toronto Downtown.

They work 12 hour days, including weekends and together log some 300,000 kilometres in business travel a year. In 1979, Dr. Rocket and Dr. Price foresaw the future of dentistry in the concept of delivering dental services from shopping malls, to make it more convenient and accessible for the public. They formed Tridont Dental Centres and in 1980 opened their first outlet in a Toronto suburb. The response from the public was overwhelming. By 1985 Tridont had grown from a staff of three to a staff of fifteen hundred, becoming North America's largest storefront dentistry group. Today they have over 70 outlets in Canada and the United States, a figure expected to increase by more than 20 each year.

Success like this occurs when business people recognize a need for change and respond to it. Holiday Inn is recognizing and responding to their changing needs. That's why when Drs. Howard Rocket and Brian Price travel on business they stay at a Holiday Inn hotel.- Holiday Inn - A Better Place to be.

...Dr. Rocket and Dr. Price were charged with violating subss. 37(39) and (40) of Regulation 447 [], of the Health Disciplines Act ...

... Section 37 (39) classifies as professional misconduct all advertising not expressly permitted by the subsection. It restricts not only the means and manner of advertising, but the content, which is limited to the name, address and telephone number (and on business cards, the office hours) of the dentist. Section 37(40) is general, prohibiting any conduct which would reasonably be regarded as "disgraceful, dishonourable or unprofessional". []

This case poses a conflict between two values recognized in our society -- the need to regulate the scope of professional advertising on the one hand and the value of free expression on the other....

Although it has been clearly held that commercial expression [is within] s. 2(b), [] the fact that expression is commercial is not necessarily without constitutional significance. Regulation of advertising may offend the guarantee of free expression ... [but under s.1] the competing values -- the value of the limitation and the value of free expression -- are weighed in the context of the case. Part of the context [here] is the fact that the expression at issue is wholly within the commercial sphere.

This approach ... may be compared with its treatment under the First Amendment to the Constitution of the United States ....

[There] the protection granted to commercial speech is limited, both from the point of view of content and remedy. First, the courts have developed a test for regulation of commercial speech which is less rigorous than for other speech.... Second, it is important to note that ... the consequences of overbreadth in commercial speech cases are not to invalidate the legislation, but merely to prevent reliance on overbroad provisions....

United States cases have also drawn a distinction between advertisement of standardized products, and more subjective claims as to the quality of services involving the exercise of professional judgment. In Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 (1935), the court upheld a wide-ranging ban on advertising by dentists.... commenting at p. 612 that "the legislature was not dealing with traders in commodities, but with the vital interest of public health": In [Virginia Pharmacy]...the court's opinion contains the following caveat:

[T]his case [concerns] the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising....

I refer to the American law on commercial speech, not because it should be taken as determinative, but rather because it exemplifies one way of dealing with the task of weighing the conflicting values involved in assessing the [status of] professional advertising.

... [Section] 37(39)... [clearly] infringes s. 2(b) ....

... [Under section 1] While the Canadian approach does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question. As Wilson J. notes in [Edmonton Journal] not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.

The expression limited by this regulation is that of dentists who wish to impart information to patients or potential patients. Their motive for doing so is ... primarily economic. Conversely, their loss, if prevented from doing so, is merely loss of profit, and not loss of opportunity to participate in the political process or the "marketplace of ideas", or to realize one's spiritual or artistic self-fulfilment []. This suggests that restrictions on expression of this kind might be easier to justify....

On the other hand, it cannot be denied that expression of this kind does serve an important public interest by enhancing the ability of patients to make informed choices. Furthermore, the choice of a dentist must be counted as a relatively important consumer decision. To the extent, then, that this regulation denies or restricts access of consumers to information that is necessary or relevant to their choice of dentist, the infringement ... cannot be lightly dismissed.

These two opposing factors - that the expression is designed only to increase profit, and that the expression plays an important role in consumer choice - will be present in most if not all cases of commercial expression. Their precise mix, however, will vary greatly, which is why I believe it is inadvisable to create a special and standardized test for restrictions on commercial expression.... In Irwin Toy, for example, the majority did not emphasize the consumer choice aspect, because the expression in question was advertising aimed at children.... That left the relatively weak value of protecting the appellant's interest in advertising to increase profits to be pitted against the strong countervailing value of protecting children from economic exploitation.

... Irwin Toy also ... suggested that substantial latitude should be given to legislatures that act to protect a vulnerable group, or to mediate between competing groups, distinguishing this type of legislation from that in which the state appears as antagonist to the individual ....

In the case at bar, it must be recognized that the element of consumer choice is more significant than it was in Irwin Toy. But in another sense, there are parallels. Consumers of dental services would be highly vulnerable to unregulated advertising. As non-specialists, they would lack the ability to evaluate competing claims as to the quality of different dentists. Indeed, the practice of dentistry, like other professions, calls for so much exercise of subjective personal judgment that claims about the quality of different dentists may be inherently incapable of verification. Furthermore, the choice of a dentist is, as noted above, a relatively important one. The consuming public would thus be far more vulnerable to unregulated advertising from dental professionals than it would be to unregulated advertising from manufacturers or suppliers of many other, more standardized, goods or services. The fact that the provincial legislature here acted to protect a vulnerable group argues in favour of viewing its attempted compromise with some deference....

It is difficult to overstate the importance in our society of the proper regulation of our learned professions.... The maintenance of professionalism and the protection of the public are at the heart of such regulations. As Dubin A.C.J.0. put it:

... [Unregulated professional advertising] would only encourage the least competent and most unscrupulous dentists to respond in kind to the confusion and detriment of the public and to the diminution of the professionalism of the dental profession. In that respect, I repeat what was stated by Chief Justice Hughes in Semler v. Oregon State Board of Dental Examiners, [] when he stated:

... the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. What is generally called the "ethics" of the profession is but the consensus of expert opinion as to the necessity of such standards.

In this passage, Dubin A.C.J.0. identifies two major aims of regulation of professional advertising. The first is maintenance of a high standard of professionalism.... The second is to protect the public from irresponsible and misleading advertising.... If a dentist or other professional claims to be more competent than his or her colleagues, there is no way in which the average consumer can verify that claim. In such circumstances professional regulation of advertising is clearly justified.

I have no difficulty in concluding that it is essential to accord to professional societies the power to regulate the methods by which their members advertise....

[Under proportionality] [t]he first question is whether s. 37 (39) is rationally connected to its objective.... The objectives of promoting professionalism and avoiding irresponsible and misleading advertising will clearly be furthered by s. 37(39).

The second question is whether the means used impair the freedom as little as possible. It is here that difficulties arise. Section 37(39) is very broadly drafted. It starts with an absolute prohibition on all advertising, going on to set out exceptions. It is easy to think of examples of expression not falling within the exceptions which should clearly be permitted. For example, it is conceded that dentists should be able to advertise their hours of operation and the languages they speak, information which would be useful to the public and present no serious danger of misleading the public or undercutting professionalism.

Such examples equally suggest that the third requirement -that there be proportionality between the effect of the legislative measure and the objective -- is not met. The effect of s. 37(39) is clearly to prohibit expression which in no way furthers its objectives. The aims of promoting professionalism and preventing irresponsible and misleading advertising on matters not susceptible of verification do not require the exclusion of much of the speech which is prohibited by s. 37(39). In the result, the effect of the impugned provision is disproportionate to its objectives. Moreover, the value served by free expression in the case of professional advertising is not purely the enhancement of the advertiser's opportunity to profit.... The public has an interest in obtaining information as to dentists' office hours, the languages they speak, and other objective facts relevant to their practice -- information which s. 37(39) prohibits dentists from conveying by advertising. Useful information is restricted without justification. These considerations satisfy me that the adverse effect of infringement of s. 2(b) in this case outweighs the benefits conferred by the legislation....

III. Remedy

... Dubin A.C.J.0. ... would not have struck the section out merely because it might apply overbroadly.... The remedy, in his view, was to decline to enforce the section if and when a case arises which brings its excessive ambit into question....

The danger of leaving legislation in force which is too broad is that it may prevent people from engaging in lawful activities by reason of the fact that the prohibition is still "on the books" ....

Professionals are typically very concerned with their standing in the profession, and few would be inclined to set themselves against their governing bodies.... I am not prepared to accept [Dubin's view].

If s. 37(39) cannot be left in place because of the adverse effect this might have on legitimate speech, the further question arises of whether the portions which are overbroad should be struck out.... This is not a case where specific offending provisions could be struck out, leaving the balance of the section to stand as a functioning whole. Because the section is cast in the form of limited exclusions to a general prohibition, the Court would be required to supply further exceptions. To my mind, this is for the legislators ....

[J]udicial revision of s. 37(39) of the Regulation would be inappropriate ....

I am conscious of the difficulties involved in drafting prohibitions on advertising which will catch misleading, deceptive and unprofessional advertising while permitting legitimate advertising. I am also aware of the historical reasons why s. 39 was drafted in the form of an absolute prohibition.... [However, it is not] impossible to draft regulations which prohibit advertising which is unverifiable and unprofessional while permitting advertising which serves a legitimate purpose in furnishing the public with relevant information....

Notes and Questions

1. On its face, is there anything problematic about the Rocket/Price promotional? Can you think of any interest that would be served by prohibiting a promotion of this kind?

2. Is there ambiguity in Justice McLachlin's approach to section 1? Specifically, she claims that not all expression is equally worthy of protection, and that not all infringements of free expression are equally serious. At the same time, however, she is unwilling to admit that it is necessary to adopt different standards of justification for different issues under section 1. Can she have it both ways? She claims, too, that a special and standardized test is undesirable. Is it preferable for the Court make decisions based on ad hoc and subjective characterizations of commercial expression as being "purely for profit" or otherwise, of "some social utility"?

3. Is the speaker's interest relevant in any of the cases dealing with commercial expression? or is the consumer's interest in access to information the only rationale for protecting commercial expression under the Charter?

4. Justice McLachlin claims that expression designed only to increase profit is not as important as other kinds of expressive activity. Is there any difference between advertisements that promote one's professional stature, and advertisements that promote a particular political position, candidate or party? In other words, is self-interest and self-promotion only found in the economic sphere and not at all in the political sphere? Why then should commercial expression receive less protection than political expression?

5. What reasons do professional regulatory bodies give for placing restrictions on advertisements? Is the profession's interest in "public respect" a sufficient reason for limiting advertising activities? Do you have any concerns about the regulatory monopoly these organizations enjoy? Precisely what is "professionalism": the right of any profession to project and control an elitist self-image?

6. Is the public adequately protected from misleading and unscrupulous practices through the disciplinary authority that is exercised by various professional associations? In other words, is there any reason to believe that the public is at greater risk of negligent or inadequate service as a result of advertising than as a result of the Law Society's monopolistic control of disciplinary matters?

7. Justice McLachlin argues that the public is more vulnerable to unregulated advertising by professionals than by manufacturers of products or others who provide services [such as home repair services]. Do you agree? She also argues that advertising by professionals must be regulated because there is no way for the average consumer to evaluate claims of competence or expertise. Realistically, how many members of the public have access to a list of doctors, dentists, specialists, and the opportunity to evaluate their competence and expertise? Access to professional service, and information about its availability is so poor that many members of the public are forced to use hospital emergency departments for basic medical services. Would advertising improve access to services?

9. Dubin A.C.J.0. argued that only the least competent and most unscrupulous would rely on advertising for business. Does he substantiate this claim? Is there any reason to believe those who do not advertise are more competent than those who do?

RJR - MacDonald Inc. v. A-G Canada

[1995] 3 S.C.R. 199

[The Tobacco Products Control Act prohibited all advertising and promotion of tobacco products in Canada, except for the advertising of foreign tobacco products in imported publications. The law required unattributed health warnings on all tobacco products (e.g. "Smoking can kill you.") Other than prohibiting the distribution of free samples of tobacco products, the Act did not prevent the sale, distribution or use of tobacco. The Quebec Superior Court ruled that the Act was both ultra vires and an unjustified infringement of 2(b). By a 2-1 margin, the Quebec Court of Appeal reversed. In a 5-4 decision, the Supreme Court allowed the appeal of RJR and Imperial Tobacco.

The Court split on the division of powers and on the 2(b) analysis. Lamer C.J.C., and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. held that all three measures (prohibiting advertising and promotion and requiring health warnings) were valid legislation under s. 91(27). McLachlin agreed with respect to advertising and health warnings. Sopinka and Major JJ. found that the health warnings were within the ambit of s. 91(27), but held that the regulation of advertising and promotion was within POGG under the national dimensions doctrine.

All agreed that the prohibitions on advertising and promotion violated s. 2(b) but split on whether to save the Act under s.1. McLachlin J. (Lamer C.J.C., Sopinka, Major and Iacobucci JJ., concurring) held that the provisions were an unjustifiable infringement of free expression. La Forest J. (L'Heureux-Dubé, Gonthier and Cory JJ., concurring) would have upheld the Act under s. 1, and also found that the unattributed health warnings did not violate s. 2(b).

Iacobucci J. favoured a suspensive declaration of invalidity for one year to prevent the tobacco companies from having the right to unfettered advertising while the government introduced new legislation. Although concurring with La Forest J., Cory J. said that if the legislation were unconstitutional, he would favour a suspensive declaration of invalidity.]

La Forest J. (dissenting)

... The purpose of the Act, [set out in s. 3., is to respond to a national public health problem, to protect the health of Canadians in light of the deadly effects of tobacco, to protect young people from inducements to begin smoking, and to enhance public awareness of the hazards of tobacco use.]  ...

...The [A-G] conceded that the prohibition on advertising and promotion infringes s. 2(b)... [but not] that s. 9, which requires...manufacturers to place an unattributed health warning on packages...constitutes an infringement of the appellants' right to freedom of expression. In my view, the [A-G] was correct in not making this concession....

The Legislative Objective and Context

...The appellants have conceded that the objective of protecting Canadians from the health risks associated with tobacco use, and informing them about these risks, is pressing and substantial. Rather than focusing upon the objective, the appellants submit that the measures employed under the Act are not proportional to the objective....

[See Volume I, Chapter II.]

This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case. The word "reasonable" in s. 1 necessarily imports flexibility. In a significant, but often neglected, passage from Oakes itself, Dickson C.J. warned against an overly formalistic approach to s. 1 justification.... Shortly thereafter, he reaffirmed this warning in R. v. Edwards Books and Art Ltd.[]... Later, in R. v. Keegstra,[] Dickson C.J. had occasion to elaborate more fully upon the nature of the Oakes inquiry, stating that it was "dangerously misleading to conceive of s. 1 as a rigid and technical provision".... In applying a "rigid or formalistic approach to the application of s. 1", he cautioned that [] the courts risk losing sight of the "synergetic relation" that exists between Charter rights and the context in which they are claimed. In United States of America v. Cotroni, [] I also stressed the importance of this "synergetic relation", and the resulting need to avoid what I called a "mechanistic approach" in the application of the s. 1 analysis....

This Court has on many occasions stated that the evidentiary requirements under s. 1 will vary substantially depending upon both the nature of the legislation and the nature of the right infringed. In the present cases, both these contextual elements are highly relevant to a proper application of the s. 1 analysis....

Parliament clearly intended to protect public health by reducing the number of inducements for Canadians to consume tobacco, and by educating Canadians about the health risks entailed in its consumption....

[T]he...health problems raised by tobacco consumption are highly relevant to the s. 1 analysis, both in determining the appropriate standard of justification and in weighing the relevant evidence....[I]t is essential to keep in mind that tobacco addiction is a unique, and somewhat perplexing, phenomenon ....[Currently] there is no definitive scientific explanation for tobacco addiction, nor is there a clearly understood causal connection between advertising, or any other environmental factor, and tobacco consumption....

[However], overwhelming evidence was introduced at trial that tobacco use is a principal cause of [several deadly diseases], and that tobacco is highly addictive. Perhaps the most distressing aspect of the evidence introduced at trial is that tobacco consumption is most widespread among the young and the less educated -- those...who are least able to inform themselves about, and to protect themselves against, its hazards....

It appears, then, that there is a significant gap between our understanding of the health effects of tobacco consumption and of the root causes of tobacco consumption. In my view, this gap raises a fundamental institutional problem... . Simply put, a strict application of the proportionality analysis in cases of this nature would place an impossible onus on Parliament by requiring it to produce definitive social scientific evidence respecting the root causes of a pressing area of social concern every time it wishes to address its effects. This could have the effect of virtually paralyzing the operation of government in the socio-economic sphere.... To require Parliament to wait for definitive social science conclusions every time it wishes to make social policy would impose an unjustifiable limit on legislative power by attributing a degree of scientific accuracy to the art of government which, in my view, is simply not consonant with reality....

[T]his Court has recognized the need to attenuate the Oakes standard of justification when institutional constraints analogous to those in the present cases arise....In drawing a distinction between legislation aimed at "mediating between different groups", where a lower standard of s. 1 justification may be appropriate, and legislation where the state acts as the "singular antagonist of the individual", where a higher standard of justification is necessary, the Court in Irwin Toy was drawing upon the more fundamental institutional distinction between the legislative and judicial functions that lies at the very heart of our political and constitutional system. Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be. This is a role properly assigned to the elected representatives of the people... . In according a greater degree of deference to social legislation than to legislation in the criminal justice context, this Court has recognized these important institutional differences between legislatures and the judiciary....

In enacting this legislation, Parliament was facing a difficult policy dilemma....[Rather than a total prohibition] Parliament chose a less drastic, and more incremental, response to the tobacco health problem. In prohibiting the advertising and promotion of tobacco products, as opposed to their manufacture or sale, Parliament has sought to achieve a compromise among the competing interests of smokers, non-smokers and manufacturers, with an eye to protecting vulnerable groups in society. Given the fact that advertising, by its very nature, is intended to influence consumers and create demand, this was a reasonable policy decision....

Seen in this way, it is clear that the Act is the very type of legislation to which this Court has generally accorded a high degree of deference....This Court has recognized...that, depending on its nature, expression will be entitled to varying levels of constitutional protection....Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts. When these values come into conflict, as they often do, it is necessary for the courts to make choices based not upon an abstract, Platonic analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. This the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even more fundamental values....When state action places such values in jeopardy, this Court has been careful to subject it to a searching degree of scrutiny. However, when the form of expression placed in jeopardy falls farther from the "centre core of the spirit", this Court has ruled restrictions on such expression less difficult to justify....[and] has applied a lower standard of justification....

[T]he harm engendered by tobacco, and the profit motive underlying its promotion, place this form of expression as far from the "core" of freedom of expression values as prostitution, hate mongering, or pornography, and thus entitle it to a very low degree of protection under s. 1....[T]obacco advertising serves no political, scientific or artistic ends; nor does it promote participation in the political process. Rather, its sole purpose is to inform consumers about, and promote the use of, a product that is harmful, and often fatal....The...motivation for this advertising is...profit....

The appellants...spend millions of dollars every year to promote their products... The sophistication of the advertising campaigns employed by these corporations...undermines their claim to freedom of expression protection because it creates an enormous power differential between these companies and tobacco consumers in the "marketplace of ideas"....

I conclude, therefore, that an attenuated level of s. 1 justification is appropriate....

Proportionality

[The trial judge] found [] that "the connection which the state seeks to establish between health protection and tobacco advertising is tenuous and speculative" and [] that "[t]he virtual totality of the scientific documents in the state's possession at the time the Act was passed do not demonstrate that a ban on advertising would affect consumption"....

Rational Connection

The appellants...claim that there is no rational connection between the prohibition on advertising and promotion of tobacco products...and the objective of reducing tobacco consumption....Although the appellants observe, quite correctly, that there has not to date been a definitive study [on] the connection between tobacco advertising and tobacco consumption, I believe there was sufficient evidence...to conclude that the objective of reducing tobacco consumption is logically furthered by the prohibition...on both tobacco advertising and promotion.

I begin with...a powerful common sense observation. Simply put, it is difficult to believe that Canadian tobacco companies would spend over 75 million dollars every year on advertising if they did not know that advertising increases the consumption of their product. In response,...the appellants insist that their advertising is directed solely toward preserving and expanding brand loyalty... . [T]he appellants' claim is untenable for two principal reasons. First, brand loyalty alone will not, and logically cannot, maintain the profit levels of these companies if the overall number of smokers declines....Second,...commercials targeted solely at brand loyalty may also serve as inducements for smokers not to quit. The government's [health concerns] can quite reasonably extend not only to potential smokers ..., but also to current smokers who would prefer to quit but cannot.

[Based on our recent jurisprudence], the foregoing common sense observation is sufficient in itself to establish a rational connection.... In Butler,...the critical question raised at the rational connection stage was whether a rational connection existed between "obscene" material and violence against women.... Nonetheless, Sopinka J. decided [] that a common sense analysis was sufficient to satisfy the rational connection requirement....

[A] similar type of analysis is applicable here....[T]he power of the common-sense connection between advertising and consumption is sufficient to satisfy the rational connection requirement.

However, it is not necessary to rely solely upon common sense...because there was, in any event, sufficient evidence adduced at trial to bear out the rational connection between advertising and consumption.... [The trial judge] disregarded a substantial amount of evidence that might otherwise have substantiated the government's belief in a rational connection. This evidence can be conveniently subdivided into three categories: internal tobacco marketing documents, expert reports, and international materials....

Perhaps the most compelling evidence concerning the connection between advertising and consumption can be found in the internal marketing documents prepared by the tobacco manufacturers themselves. Although the appellants steadfastly argue that their marketing efforts are directed solely at [brand loyalty]...these documents show otherwise. In particular, the following general conclusions can be drawn from these documents: the tobacco companies are concerned about a shrinking tobacco market and recognize that an "advocacy thrust" is necessary to maintain the size of the overall market; the companies understand that, in order to maintain the overall numbers of smokers, they must reassure current smokers and make their product attractive to the young and to non-smokers; they also recognize that advertising is critical to maintaining the size of the market because it serves to reinforce the social acceptability of smoking by identifying it with glamour, affluence, youthfulness and vitality....

[After discussing tobacco company marketing plans and studies, which revealed that tobacco companies were very concerned about the shrinking market, and that some company reports recommended marketing to increase the size of the market, not just the size of their market share, La Forest concluded]

[These] documents...strongly suggest that the tobacco companies perceive advertising to be a cornerstone of their strategy to reassure current smokers and expand the market by attracting new smokers, primarily among the young. This conclusion is given added force by a number of [expert] reports introduced at trial...which attest to the causal connection between tobacco advertising and consumption....

The views expressed in these reports are not, of course, definitive or conclusive. Indeed, there is currently a lively debate in the social sciences respecting the connection between advertising and consumption... . However, these reports attest, at the very least, to the existence of...a "body of opinion" supporting the existence of a causal connection between advertising and consumption....[A] significant number of international health organizations...support prohibitions on advertising as a viable strategy in the battle against tobacco consumption....

I conclude that there is a rational connection between the prohibition on advertising and consumption under ss. 4, 5, 6 and 8 of the Act and the reduction of tobacco consumption....

Minimal Impairment

The next step ... is to determine whether the legislative means chosen impair the right or freedom in question as little as possible. The appellants submit that Parliament has unjustifiably imposed a complete prohibition [when it] could have instituted a partial prohibition by forbidding "lifestyle" advertising...or advertising directed at children, without at the same time prohibiting "brand preference" advertising or "informational" advertising....

[T]he appellants' argument fails for the same reasons that I have discussed throughout my s. 1 analysis. The relevance of context cannot be understated....This Court has on many occasions stated that the degree of required fit between means and ends will vary depending upon both the nature of the right and the nature of the legislation....

Thus, the minimal impairment requirement does not impose an obligation on the government to employ the least intrusive measures available. Rather, it only requires it to demonstrate that the measures employed were the least intrusive, in light of both the legislative objective and the infringed right....

Taking into account the legislative context,...the measures adopted under the Act satisfy the Oakes minimal impairment requirement. It must be kept in mind that the infringed right at issue in these cases is the right of tobacco corporations to advertise the only legal product sold in Canada which, when used precisely as directed, harms and often kills those who use it. As I discussed above, I have no doubt that Parliament could validly have employed the criminal law power to prohibit the manufacture and sale of tobacco products, and that such a prohibition would have been fully justifiable under the Charter. There is no right to sell harmful products in Canada....This type of expression, which is directed solely toward the pursuit of profit, is neither political nor artistic in nature, and therefore falls very far from the "core" of freedom of expression values....

Furthermore, there was ample evidence introduced by the [A-G] at trial demonstrating that a full prohibition of tobacco advertising is justified and necessary. In enacting this legislation, Parliament [concluded] that all advertising stimulates consumption and that a full prohibition upon advertising is therefore necessary to reduce consumption effectively.... [T]he measures adopted...were the product of an intensive twenty year public policy process....[During this] ...period, the government adopted an incremental legislative approach by experimenting with a variety of less intrusive measures before determining that a full prohibition on advertising was necessary....

The reasonableness of Parliament's decision to prohibit tobacco advertising has been amply borne out by parallel developments in the international community before and after the passage of the Act...

[T]he appellants made much of the fact that, during the course of the trial, a certificate was issued by the Clerk of the Privy Council...stating that certain documents requested by the appellants, many of which were departmental memoranda sent to the Minister of Health and Welfare, constituted "confidence[s] of the Queen's Privy Council for Canada". As a result...all references in the requested documents to an unidentified and alternative policy option were blacked out. The appellants speculate that this mysterious policy option was less intrusive...and argue on this basis that a full prohibition on advertising was not the only option available to the government....

Even if...the government was considering a less intrusive option..., I do not accept that this in any way undermines the Attorney General's argument that the Act minimally impairs the appellants' rights in light of the legislative objective. A partial prohibition on advertising would only have been required under the Charter if it had been clear to Parliament that some forms of advertising do not stimulate consumption, and that a full prohibition would accordingly be overbroad. However, the Attorney General demonstrated convincingly at trial that Parliament had a reasonable basis for believing...that all tobacco advertising stimulates tobacco consumption....[I]t is reasonable to conclude that all advertising stimulates consumption because all advertising serves to place tobacco products in the public eye and to give these products legitimacy, particularly among the young....

[I]t would be highly artificial for this Court to decide, on a purely abstract basis, that a partial prohibition on advertising would be as effective as a full prohibition. In my view, this is precisely the type of "line drawing" that this Court has identified as being within the institutional competence of legislatures and not courts....

In reaching [this] conclusion..., I am well aware of the statements of this Court [] to the effect that a complete prohibition on a type of expression will be more difficult to justify than a partial prohibition. In my view, however, ...I emphasize the importance of context in the minimal impairment analysis....

[T]obacco advertising...serves to promote an activity which... is inherently dangerous and has no redeeming public health value. Indeed, the contrast with Rocket could not be more striking. Making an informed choice about dentists serves to promote health by allowing patients to seek out the best care; making an informed choice about tobacco simply permits consumers to choose between equally dangerous products...

A similar contrast can be drawn between the present cases and Ford.... While, in these cases, the Act prohibits only tobacco advertising, in Ford, the law prohibited all non-French commercial expression in Quebec. It was therefore much broader in scope... . Moreover, while the Act prohibits expression that has little or no connection with "core" freedom of expression values, the commercial expression in Ford was intimately connected with such core values....

A second important distinction...relates to the quantity of evidence adduced to satisfy the minimal impairment requirement. In Ford, no evidence was adduced to show why the exclusion of all languages other than French was necessary to achieve the objective of protecting the French language and reflecting the reality of Quebec society....

By contrast...the [A-G] in the present cases submitted a substantial body of documentation, drawn from national and international sources, to demonstrate that a full prohibition is rational and can be justified in a free and democratic society....

Proportionality Between the Effects of the Legislation & the Objective

The third part of the proportionality analysis requires a proportionality between the deleterious and the salutary effects of the measures.... [T]he deleterious effects of [restricting the advertising of inherently harmful products] do not outweigh the legislative objective of reducing the number of direct inducements for Canadians to consume these products.

The Unattributed Health Message Requirement

... I have [] fundamental problems accepting the appellants' contention that their s. 2(b) right was infringed by the requirement that a prescribed health warning must be placed on tobacco packages. It must be remembered that this statement is unattributed and I have some difficulty in seeing ... that it can in any real sense be considered to be attributed to the appellants. Simply because tobacco manufacturers are required to place unattributed warnings on their products does not mean that they must endorse these messages, or that they are perceived by consumers to endorse them.... It is common knowledge amongst the public at large that such statements emanate from the government.... In this respect, there is an important distinction between messages directly attributed to tobacco manufacturers, which would create the impression that the message emanates from the appellants and would violate their right to silence, and the unattributed messages at issue in these cases, which ... create no such impression. Seen in this way, the mandatory health warnings under s. 9 are no different from unattributed labelling requirements under the Hazardous Products Act....I should add that the issue has ramifications for many other spheres of activity where individuals may in certain prescribed circumstances be required to place danger signs on facilities used by the public or on construction sites, and so on. This is not really an expression of opinion by the person in control of the facility or the construction site. It is rather a requirement imposed by the government as a condition of participating in a regulated activity.

[Even if there is an infringement], I am firmly convinced that it is fully justifiable under s. 1. Once again, I stress the importance of context.... The appellants are large corporations selling a product for profit which ... is dangerous, yet maintain the right to engage in "counterspeech" against warnings which do nothing more than bring the dangerous nature of these products to the attention of consumers. Given that the objective of the unattributed health message requirement is simply to increase the likelihood that every literate consumer of tobacco products will be made aware of the risks....we are a long way ... from cases where the state seeks to coerce a lone individual to make political, social or religious statements without a right to respond...

[T]he requirement that health warnings must be unattributed is...proportional to the objective of informing consumers about the risks of tobacco use. Unattributed warnings are rationally connected to this objective because they increase the visual impact of the warning....[B]old unattributed messages on a tobacco package...are more striking to the eye than messages cluttered by subtitles and attributions. Moreover, the attribution of the warnings also tends to dilute the factual impact of the messages....

Thus, although the unattributed health warning requirement precludes large corporations from disseminating on their product packages the view that tobacco products are not harmful, I believe that any concern arising from this technical infringement of their rights is easily outweighed by the pressing health concerns raised by tobacco consumption....

I would dismiss the appeals with costs....

McLachlin J.

I agree with La Forest J. that the prohibition on advertising and promotion of tobacco products constitutes a violation of the right to free expression.... Unlike La Forest J., I take the view that s. 9 of the Act, which requires tobacco manufacturers to place an unattributed health warning on tobacco packages, also infringes the right of free expression.... Under s. 9(2), tobacco manufacturers are prohibited from displaying on their packages any writing other than the name, brand name, trade mark, and other information required by legislation. The combination of the unattributed health warnings and the prohibition against displaying any other information which would allow tobacco manufacturers to express their own views, constitutes an infringement of [s. 2(b)]....

The Test for Justification under Section 1 of the Charter [See Volume I, Chapter II]

[W]hile I agree with La Forest J. that context, deference and a flexible and realistic standard of proof are essential aspects of the s. 1 analysis, these concepts should be used as they have been used by this Court in previous cases. They must not be attenuated to the point that they relieve the state of the burden the Charter imposes of demonstrating that the limits imposed on our constitutional rights and freedoms are reasonable and justifiable in a free and democratic society....

The Objective of the Limit on Free Expression

The objective relevant to the s. 1 analysis is the objective of the infringing measure... If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised. As my colleague has noted, the Tobacco Products Control Act is but one facet of a complex legislative and policy scheme to protect Canadians from the health risks of tobacco use. However, the objective of the impugned measures themselves is somewhat narrower than this. The objective of the advertising ban and trade mark usage restrictions must be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products. The objective of the mandatory package warning must be to discourage people who see the package from tobacco use. Both constitute important objectives, although the significance of the targeted decrease in consumption is reduced by the government's estimate that despite the ban, 65% of the Canadian magazine market will contain tobacco advertisements, given that the ban applies only to Canadian media and not to imported publications....

The critical question is not the evil tobacco works generally in our society, but the evil which the legislation addresses.

While the limited objective of reducing tobacco-associated health risks by reducing advertising-related consumption and providing warnings of dangers is less significant than the broad objective of protecting Canadians generally from the risks associated with tobacco use, it nevertheless constitutes an objective of sufficient importance.... Even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of the right of free expression.

Proportionality

...To what extent should this Court defer to the trial judge's findings? As discussed earlier, this depends on whether the findings relate to purely factual matters or whether they relate to complex social science evidence.... In the cases at bar, the trial lasted more than one year and a massive amount of evidence was adduced.... [I]t would be wrong to discard completely the trial judge's findings [on] the credibility of witnesses and...the defective methodology used in compiling the data for certain reports.... On the other hand, it may be that less deference should be accorded to the trial judge's finding that the complete ban on advertising was not rationally connected to the aim of reducing advertising-induced consumption. Much of the evidence adduced on this point was social science evidence.... In assessing this evidence Chabot J. erred in failing to consider factors which could suggest as a matter of logic or reason that there was, on a balance of probabilities, a rational connection between the objective and the means chosen.

With respect to the minimal impairment element of the proportionality analysis, I accept Chabot J.'s finding that the impugned provisions mandating a complete ban and unattributed package warnings do not minimally impair the right to free expression. Under the minimal impairment analysis, Chabot J. did not rely on problematic social science data, but on the fact that the government had adduced no evidence to show that less intrusive regulation would not achieve its goals as effectively as an outright ban. Nor had the government adduced evidence to show that attributed health warnings would not be as effective as unattributed warnings on tobacco packaging.

Rational Connection

As a first step in the proportionality analysis, the government must...show a causal connection between the infringement and the benefit sought on the basis of reason or logic. To put it another way, the government must show that the restriction on rights serves the intended purpose....

The causal relationship...may sometimes be proved by scientific evidence.... Where, however, legislation is directed at changing human behaviour...the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective []....

The trial judge in the cases at bar found that the government had not established a rational connection between the advertising ban and unattributed warnings and a reduction in tobacco use in the first, scientific sense. The only direct or scientific evidence offered of the link between advertising bans and smoking reduction consisted of a report of the New Zealand Toxic Substances Board.... The trial judge...rejected this evidence. The report was found [] to contain serious methodological errors....As noted above, these findings relating to the credibility of witnesses and the soundness of various methodological approaches fall within the scope of the trial judge's traditional and accepted expertise.... They have not been seriously challenged [and] [w]e may therefore take it that there was no direct evidence of a scientific nature showing a causal link between advertising bans and decrease in tobacco consumption.

This leaves the question of whether there is less direct evidence that suggests as a matter of "reason" or "logic" that advertising bans and package warnings lead to a reduction in tobacco use. The evidence relied upon by La Forest J. ... falls into this category.... [It consists] largely of evidence of advertising practices as well as the assumptions and conclusions of bodies concerned with reducing the health risk associated with tobacco use.

The question is whether this evidence establishes that it is reasonable or logical to conclude that there is a causal link between tobacco advertising and unattributed health warnings and tobacco use. To use the words of the Meese Commission on Pornography relied on in Butler [], "would [it] be "surprising to find otherwise"? The government argues that it would be "surprising to find otherwise". Why would tobacco companies spend great sums on advertising if not to increase the consumption of tobacco, it asks?

...[T]he tobacco companies reply that their advertising is directed not at increasing the size of the total market but at obtaining a larger share of the existing market. The evidence [supports this]...but there is also evidence suggesting that advertising is used to increase the total market. For example...Project Viking, a market research study carried out to determine an advertising strategy for the company [], suggests that advertising should be directed to "expanding the market, at the very least, forestalling its decline" by proactively recruiting new smokers and reassuring present smokers who might otherwise quit in response to vigorous anti-smoking publicity. Moreover, while purely informational advertising may not increase the total market, life-style advertising may, as a matter of common sense, be seen as having a tendency to discourage those who might otherwise cease tobacco use from doing so. Conversely, package warnings, attributed or not, may be seen as encouraging people to reduce or cease using tobacco. All this taken together with the admittedly inconclusive scientific evidence is sufficient to establish on a balance of probabilities a link based on reason between certain forms of advertising, warnings and tobacco consumption.

On the other hand, there does not appear to be any causal connection between the objective of decreasing tobacco consumption and the absolute prohibition on the use of a tobacco trade mark on articles other than tobacco products which is mandated by s. 8 of the Act. There is no causal connection based on direct evidence, nor is there, in my view, a causal connection based in logic or reason. It is hard to imagine how the presence of a tobacco logo on a cigarette lighter, for example, would increase consumption... I find that s. 8 of the Act fails the rational connection test.

Minimal Impairment

I turn first to the prohibition on advertising contained in s. 4 of the law. It bans all forms of advertising of Canadian tobacco products while explicitly exempting all foreign advertising of non-Canadian products which are sold in Canada. It extends to advertising which arguably produces benefits to the consumer while having little or no conceivable impact on consumption. Purely informational advertising, simple reminders of package appearance, advertising for new brands and advertising showing relative tar content of different brands -- all these are included in the ban. Smoking is a legal activity yet consumers are deprived of an important means of learning about product availability to suit their preferences and to compare brand content with an aim to reducing the risk to their health.

As this Court has observed before, it will be more difficult to justify a complete ban on a form of expression than a partial ban [].... A full prohibition will only pass the minimal impairment [test] where the government can show that only a full prohibition will enable it to achieve its objective. Where, as here, no evidence is adduced to show that a partial ban would be less effective than a total ban, the justification required by s. 1...is not established.

...[W]hile one may conclude as a matter of reason and logic that lifestyle advertising is designed to increase consumption, there is no indication that purely informational or brand preference advertising would have this effect. The government had before it a variety of less intrusive measures when it enacted the total ban on advertising....In my view, any of these alternatives would be a reasonable impairment of the right to free expression, given the important objective and the legislative context.

These considerations suggest that the advertising ban may... be more intrusive...than is necessary.... Indeed, Health and Welfare proposed less-intrusive regulation instead of a complete prohibition on advertising. Why then, did the government adopt such a broad ban? The record provides no answer.... The government presented no evidence in defence of the total ban, no evidence comparing its effects to less invasive bans.

This omission is all the more glaring in view of the fact that the government carried out at least one study of alternatives to a total ban on advertising before enacting the total ban. The government has deprived the courts of the results of that study. The [A-G] of Canada refused to disclose this document and approximately five hundred others demanded at the trial.... In the face of this behaviour, one is hard-pressed not to infer that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result.

Not only did the government present no evidence justifying its choice of a total ban, it also presented no argument before us on the point. The appellants argued that there were undisclosed alternatives to a complete ban. The [A-G's] factum offered no response. Instead, the [A-Gl contented himself with the bland statement that a complete ban is justified because Parliament "had to balance competing interests" somehow. Its response to the minimal impairment argument is not evidence, but a simple assertion that Parliament has the right to set such limits as it chooses....

My colleague La Forest J. ... nonetheless concludes that the legislation is minimally impairing based on the importance of the legislative objective and the legislative context. With respect, I cannot agree. Even on difficult social issues where the stakes are high, Parliament does not have the right to determine unilaterally the limits of its intrusion on the rights and freedoms guaranteed by the Charter....

La Forest J. supports his conclusion that Parliament should be permitted to choose such measures as it sees fit by contrasting the importance of Parliament's objective with the low value of the expression at issue. This way of answering the minimal impairment requirement raises a number of concerns. First, to argue that the importance of the legislative objective justifies more deference to the government at the stage of evaluating minimal impairment, is to engage in the balancing between objective and deleterious effect contemplated by the third stage of the proportionality analysis in Oakes. While it may not be of great significance where this balancing takes place, care must be taken not to devalue the need for demonstration of minimum impairment by arguing the legislation is important and the infringement of no great moment.

Second, just as care must be taken not to overvalue the legislative objective beyond its actual parameters, so care must be taken not to undervalue the expression at issue. Commercial speech, while arguably less important than some forms of speech, nevertheless should not be lightly dismissed.... Tobacco consumption has not been banned in Canada. Yet the advertising ban deprives those who lawfully choose to smoke of information relating to price, quality and even health risks associated with different brands. It is no answer to suggest ... that the tobacco companies have failed to establish the true benefits of such information. Under s. 1 of the Charter, the onus rests on the government to show why restrictions on these forms of advertising are required.

Third, in finding that the commercial speech here at issue is entitled "to a very low degree of protection under s. 1" [], and that "an attenuated level of s. 1 justification is appropriate in these cases" [], La Forest J. places a great deal of reliance on the fact that the appellants are motivated by profit. ... While this Court has stated that restrictions on commercial speech may be easier to justify than other infringements, no link between the claimant's motivation and the degree of protection has been recognized. Book sellers, newspaper owners, toy sellers -- all are linked by their shareholders' desire to profit from the corporation's business activity, whether the expression sought to be protected is closely linked to the core values of freedom of expression or not. In my view, motivation to profit is irrelevant to the determination of whether the government has established that the law is reasonable or justified....

It remains to consider whether the requirement that the [unattributed] warning...fails to meet the minimum impairment requirement of proportionality....

The government is clearly justified in requiring the appellants to place warnings on tobacco packaging. The question is whether it was necessary to prohibit the appellants from attributing the message to the government and whether it was necessary to prevent the appellants from placing on their packaging any information other than that allowed by the regulations.

As with the advertising ban, it was for the government to show that the unattributed warning, as opposed to an attributed warning, was required to achieve its objective of reducing tobacco consumption among those who might read the warning. Similarly, it was for the government to show why permitting tobacco companies to place additional information on tobacco packaging, such as a statement announcing lower tar levels, would defeat the government's objective. This it has failed to do....

Proportionality Between the Legislation's Effects and the Objective

...Freedom of expression, even commercial expression, is an important and fundamental tenet of a free and democratic society. If Parliament wishes to infringe this freedom, it must be prepared to offer good and sufficient justification for the infringement and its ambit. This it has not done.

...I would allow the appeals with costs to both appellants.

Iacobucci J. (concurring)

...I do not believe that the Act minimally impairs the appellants' s. 2(b) Charter rights. More broadly, I also have reservations about the somewhat attenuated minimal impairment analysis propounded by La Forest J. As I noted in my reasons in Egan v. Canada [], unduly diluting the s. 1 principles from their original form cast in [Oakes] and related cases causes me concern in so far as it creates a risk that Charter violations will be too readily justified and, as a result, Charter values too easily undercut....

The two principal issues underlying the Charter analysis in this appeal are: (1)[the rational connection threshold], (2) [the minimal impairment test].

Rational connection is to be established, upon a civil standard, through reason, logic or simply common sense. The existence of scientific proof is simply of probative value in demonstrating this reason, logic or common sense. It is by no means dispositive or determinative.

Clarifying the...connection analysis...is of great importance in an appeal such as this, in which there is extremely lengthy yet generally inconclusive scientific evidence. In short, Chabot J. found much of the scientific evidence to be suspect and was of the mind that the Act was "social engineering". With respect, this latter proposition is one which I cannot accept. Consequently, I ... agree with La Forest J....that the trial judge's determination that the Act is not rationally connected to its legislative goal ought to be overturned....

...I am concerned by the fact that the [A-G] of Canada chose to withhold ... evidence related to the options it had considered as alternatives to the total ban it chose to put in place.... I am reluctant to permit the justification of a conceded constitutional violation because of the inability of a party to the litigation to have pursued all possible avenues to obtain the non-disclosed information. These cases are of wide public interest constitutional litigation in which the government should remain non-adversarial and make full disclosure. Without this requirement, courts will be constrained to decide the constitutionality of legislation without full information. In any event, the burden of proof at the s. 1 stage lies solely with the government.

I underscore that the rights violation in this case does not involve the prohibition of the sale or consumption of tobacco. It involves the total ban on the advertising of tobacco products. I do not believe that the jurisprudence supports La Forest J.'s conclusion that...s. 2(b) is minimally impaired because the government chose not to pursue a course of conduct (i.e., prohibiting tobacco products) which bears no relevance to s. 2(b), especially when it is clear that this alternative was never, by the government's own admission, feasible or viable.

In my opinion, the question in this appeal is not whether a partial prohibition (the lesser rights-impairing approach) would be acceptable only if there were information establishing that some forms of advertising do not stimulate consumption. On the contrary, [] the total prohibition (the full rights-impairing option) [] is only constitutionally acceptable if [it] is necessary in order for the legislation to achieve a pressing and substantial goal. When...the evidence is unclear whether a partial prohibition is as effective as a full prohibition, the Charter requires that the legislature enact the partial denial of the implicated Charter right. In the absence of the discharge of this evidentiary burden...the least rights-impairing option is to be preferred. Although tobacco advertising as a whole certainly affects consumption, the evidence is unclear whether all types of tobacco ads affect consumption....

I agree ... that a contextual approach must be taken to s. 1 analysis, and, when reduced to its essence, the impugned right in this case amounts to the ability of tobacco companies to advertise -- solely for the purposes of financial profit -- a product with known deleterious effects to public health. To this end, the amount of legislative tailoring required to sustain minimal impairment analysis would not be very significant. However, context does not eliminate the need for any tailoring at all. In this appeal, the government chose not to do any tailoring and, ultimately, this constitutes the lynch-pin of the Act's unconstitutionality....

Section 9 of the Act (obliging the placing of unattributed health messages on cigarette packages) raises similar concerns. I find that this provision trenches upon s. 2(b) and is unjustifiable under s. 1 and I agree with McLachlin J. in this respect. The question here is whether the reduction of tobacco consumption can be equally advanced by adopting the less intrusive remedy of governmentally attributed warnings or whether such a method would only yield results more modest than the full rights-impairing approach presently adopted by s. 9. Given the evidence before this Court, I am inclined to opt for the lesser rights-impairing approach.

At this juncture, I should like to offer some indication of what sorts of measures would ... have survived Charter scrutiny. [It] is clear that health warnings can and should be placed on the packages, but the strictures of the Charter necessitate that they be attributed to their author.... Regarding the advertising ban, it is clear to me that an effort could have been made to regulate tobacco advertising along the lines of alcohol advertising. Given that the tobacco companies had agreed as early as 1972 (through the Voluntary Code) to refrain from advertising on television and radio, these regulations would only involve advertising in the print media anyway. Alternatively, as evidenced in some of the testimony at trial, partial bans in the order of prohibitions on lifestyle advertising only and limitations on advertising aimed at adolescents could have been given more constructive attention. The main point I wish to make is that in this case we are faced with a total and absolute ban on advertising without a justifiable basis for it. Perhaps proof exists for such a ban, but in my view the record does not establish it.

In the end, I would allow the appeal.... For the reasons set out above, ss. 4, 5, 6, 8, and 9 of the Act should be struck. However, I am of the mind ... that [this is an] appropriate case for a suspensive declaration of invalidity of one year. I thus disagree with McLachlin J. in terms of the remedy....

[Major J. wrote reasons that dealt exclusively with the division of powers and otherwise agreed with McLachlin J.'s Charter analysis.]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short title

1. This Act may be cited as the Tobacco Act.

[Certain "Parts" of the legislation have been omitted.]

PART III

LABELLING

Information required on packages

15. (1) No manufacturer or retailer shall sell a tobacco product unless the package containing it displays, in the prescribed form and manner, the information required by the regulations about the product and its emissions, and about the health hazards and health effects arising from the use of the product or from its emissions.

Information required on leaflet

(2) If required by the regulations, every leaflet manufacturer or retailer shall provide, in the prescribed form and manner, a leaflet that displays the information required by the regulations about a tobacco product and its emissions and about the health hazards and health effects arising from the use of the product and from its emissions.

Attribution

(3) The information referred to in subsections (1) and (2) may be attributed to a prescribed person or body if the attribution is made in the prescribed manner.

Existing obligations saved

16. This Part does not affect any obligation of a manufacturer or retailer at law or under an Act of Parliament or of a provincial legislature to warn consumers of the health hazards and health effects arising from the use of tobacco products or from their emissions.

Regulations

17. The Governor in Council may make regulations

(a) respecting the information that must appear on packages and in leaflets about tobacco products and their emissions and the health hazards and health effects arising from the use of the products and from their emissions;

(b) prescribing anything that by this Part is to be prescribed; and

(c) generally for carrying out the purposes of this Part.

PART IV

PROMOTION

Definition of "promotion"

18. (1) In this Part, "promotion" means a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.

Application

(2) This Part does not apply to

(a) a literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance that uses or depicts a tobacco product or tobacco product-related brand element, whatever the mode or form of its expression, if no consideration is given directly or indirectly for that use or depiction in the work, production or performance;

(b) a report, commentary or opinion in respect of a tobacco product or a brand of tobacco product if no consideration is given by a manufacturer or retailer, directly or indirectly, for the reference to the tobacco product or brand in that report, commentary or opinion; or

(c) a promotion by a manufacturer that is directed solely to a person who distributes tobacco products or a retailer.

Prohibition

19. No person shall promote a tobacco product or a tobacco product-related brand element except as authorized by this Act or the regulations.

False promotion

20. No person shall promote a tobacco product by any means, including by means of the packaging, that are false, misleading or deceptive or that are likely to create an erroneous impression about the characteristics, the health effects or health hazards of the tobacco product or its emissions.

Testimonials or endorsements

21. (1) No person shall promote a tobacco product by means of a testimonial or an endorsement, however displayed or communicated.

Depiction of person

(2) For the purposes of subsection (1), the depiction of a person, character or animal, whether real or fictional, is considered to be a testimonial for, or an endorsement of, the product.

Exception

(3) This section does not apply to a trade-mark that appeared on a tobacco product for sale in Canada on December 2, 1996.

Advertising

22. (1) Subject to this section, no person shall promote a tobacco product by means of an advertisement that depicts, in whole or in part, a tobacco product, its package or a brand element of one or that evokes a tobacco product or a brand element.

Exception

(2) Subject to the regulations, a person may advertise a tobacco product by means of information advertising or brand-preference advertising that is in

(a) a publication that is provided by mail and addressed to an adult who is identified by name;

(b) a publication that has an adult readership of not less than eighty-five per cent; or

(c) signs in a place where young persons are not permitted by law.

Lifestyle advertising

(3) Subsection (2) does not apply to lifestyle advertising or advertising that could be construed on reasonable grounds to be appealing to young persons.

Definitions

(4) The definitions in this subsection apply in this section.

"brand-preference advertising"

"brand-preference advertising" means advertising that promotes a tobacco product by means of its brand characteristics.

"information advertising"

"information advertising" means advertising that provides factual information to the consumer about

(a) a product and its characteristics; or

(b) the availability or price of a product or brand of product.

"lifestyle advertising"

"lifestyle advertising" means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life or an aspect of living such as glamour, recreation, excitement, vitality, risk or daring.

Packaging

23. No person shall package a tobacco product in a manner that is contrary to this Act or the regulations.

Sponsorship promotion

24. (1) Subject to the regulations and subsections (2) and (3), a person may display a tobacco product-related brand element in a promotion that is used in the sponsorship of a person, entity, event, activity or permanent facility if the person, entity, event, activity or facility

(a) is associated with young persons or could be construed on reasonable grounds to be appealing to young persons or if young persons are its primary beneficiaries; or

(b) is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

Display of brand element

(2) A person may display a tobacco product-related brand element only within the bottom ten per cent of the display surface of any promotional material.

Promotional materials

(3) A person may use promotional material that conforms with subsection (2) and that displays tobacco product-related brand elements

(a) in a publication that is provided by mail and addressed to an adult who is identified by name;

(b) in a publication that has an adult readership of not less than a prescribed percentage;

(c) in signs or programs available on the site of the event, activity or permanent facility; or

(d) in signs in a place where young persons are not permitted by law.

Other sponsorship

(4) Where the criteria described in paragraphs (1)(a) and (b) do not apply to a sponsorship, a person may, subject to the regulations, use a tobacco product-related brand element in the promotion of the sponsorship.

Name of facility

25. If a tobacco product-related brand element is part of the name of a permanent facility, the tobacco product-related brand element may appear on the facility in accordance with the regulations.

Accessories

26. (1) Subject to the regulations, a manufacturer or retailer may sell an accessory that displays a tobacco product-related brand element.

Promotion

(2) No person shall promote an accessory that displays a tobacco product-related brand element except in the prescribed manner and form and in a publication or place described in paragraphs 22(2)(a) to (c).

Non-tobacco product displaying tobacco brand element

27. No person shall furnish or promote a tobacco product if any of its brand elements is displayed on a non-tobacco product, other than an accessory, or is used with a service, if the non-tobacco product or service

(a) is associated with young persons or could be construed on reasonable grounds to be appealing to young persons; or

(b) is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

Exception - tobacco product

28. (1) Subject to the regulations, a person may sell a tobacco product, or advertise tobacco product in accordance with section 22, if any of its brand elements is displayed on a non-tobacco product, other than an accessory, or with a service, if the non-tobacco product or service does not fall within the criteria described in paragraphs 27(a) and (b).

Exception - non-tobacco product

(2) Subject to the regulations, a person may promote a non-tobacco product, other than an accessory, that displays a tobacco product-related brand element, or a service that uses a tobacco product-related brand element, to which section 27 does not apply.

Sales promotions

29. No manufacturer or retailer shall

(a) offer or provide any consideration, direct or indirect, for the purchase of a tobacco product, including a gift to a purchaser or a third party, bonus, premium, cash rebate or right to participate in a game, lottery or contest;

(b) furnish a tobacco product without monetary consideration or in consideration of the purchase of a product or service or the performance of a service; or

(c) furnish an accessory without monetary consideration or in consideration of the purchase of a product or service or the performance of a service.

Retail display of tobacco products

30. (1) Subject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element.

Signs

(2) A retailer of tobacco products may post, in accordance with the regulations, signs at retail that indicate the availability of tobacco products and their price.

Communication media

31. (1) No person shall, on behalf of another person, with or without consideration, publish, broadcast or otherwise disseminate any promotion that is prohibited by this Part.

Exception

(2) Subsection (1) does not apply to the distribution for sale of an imported publication or the retransmission of radio or television broadcasts that originate outside Canada.

Foreign media

(3) No person in Canada shall, by means of a publication that is published outside Canada or a broadcast that originates outside Canada or any communication other than a publication or broadcast that originates outside Canada, promote any product the promotion of which is regulated under this Part, or disseminate promotional material that contains a tobacco product-related brand element in a way that is contrary to this Part.

Report to Minister

32. Every manufacturer shall provide the Minister, in the prescribed manner and within the prescribed time, with the prescribed information about any promotion under this Part.

Regulations

33. The Governor in Council may make regulations

(a) respecting the promotion of tobacco products and tobacco product-related brand elements and the packaging of tobacco products, including the form, manner and conditions of the promotion and packaging, and the promotion of services and non-tobacco products for the purposes of section 28;

(b) respecting the advertisement of tobacco products for the purposes of subsection 22(2);

(c) respecting the use of tobacco product-related brand elements for the purposes of subsection 24(4);

(d) prescribing the manner in which a tobacco product-related brand element may appear on a permanent facility;

(e) respecting, for the purposes of subsection 26(1), the manner in which a tobacco product-related brand element may appear on an accessory;

(f) respecting the display of tobacco products and accessories at retail;

(g) respecting signs that a retailer may post under subsection 30(2), including the placement of the signs and their number, size and content;

(h) requiring manufacturers to disclose the particulars of their tobacco product-related brand elements and promotional activities;

(i) prescribing anything that by this Part is to be prescribed; and

(j) generally for carrying out the purposes of this Part.

D. AMERICAN JURISPRUDENCE

A note on the First Amendment jurisprudence

It is not possible, in the space of this Chapter, to deal in a meaningful way, with the First Amendment caselaw on commercial expression. What is included here is a short list of some of the key cases on this question, which can provide those who have an interest in such issues a "headstart".

General

Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

[initial decision granting commerical expression First Amendment protection]

Central Hudson Gas v. Public Service Comm'n, 447 U.S. 557 (1980)

[establishing the First Amendment's doctrinal standard [or s.1 test] for commercial expression]

Professional advertising

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

[holding that states cannot prohibit lawyers from price advertising of "routine legal services"]

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)

[sustaining a lawyers' suspension from practice for violating anti-solicitation rules]

In re Primus, 436 U.S. 412 (1978)

[setting aside a reprimand against an ACLU lawyer who had solicited a plaintiff]

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)

[striking down a flat ban on direct-mail solicitation by lawyers that targeted specific clients]

Florida Bar v. Went For It Inc, 518 U.S. __ (1995)

[upholding a rule prohibiting personal injury lawyers from sending targeted diret-mail solicitations to victims/relatives for a 30 day period following an accident or disaster]

Harmful products/activities

Posadas de Puerto Rico Assocs v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986)

[upholding a law prohibiting gambling casinos from advertising to local residents]

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)

[invalidating a federal provision that prohibited beers labels from displaying alcohol content]

44 Liquormoart Inc. v. Rhode Island, 521 U.S. __ (1996)

[invalidating a state off-premises ban on liquor price advertising]