B. Commercial Expression

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 160-164

Page 160

The Supreme Court has decided a number of cases involving restraints on commercial speech, with mixed results. In Ford,¹⁹the case involving the Quebec "signs law," the issues extended well beyond what constitutes the permissible regulation of advertising. The Court struck down the "signs law" on the ground that Quebec had failed to justify it as a reasonable limit. While the Supreme Court was prepared to accept as a legitimate purpose the protection and enhancement of the French language in Quebec, it held that the virtual total ban on public signs in any other language went too far. Quebec had failed to introduce evidence to show that such an extreme measure was necessary, and the Court held that the law failed to meet the minimal-impairment test. In making the minimal-impairment assessment, the Court considered alternative measures that might satisfy the goal of protecting and enhancing the

Page 161

French language. It suggested that a law that required the use of French in commercial signs but that did not ban other languages might be acceptable, even if such a measure called for a marked predominance of French. A law along these lines would meet the aim of protecting and enhancing the French language while, at the same time, respecting the rights of non-French speakers.

In the companion case, Irwin Toy,²⁰the Supreme Court was faced with a more typical case of commercial speech. At issue was the right of a toy manufacturer to advertise its products for commercial purposes. Quebec legislation prohibited commercial advertising directed at persons under thirteen years of age. The statute established certain criteria to determine whether the advertising was directed at children. A majority of the Court found that the Quebec law could be justified as a reasonable limit on the right of freedom of expression. As noted in Chapter 4, the decision in Irwin Toy represents a significant statement by the Court on the application of section 1 where a law has been enacted to protect a vulnerable group. In the Court’s view, the legislature had acted reasonably in protecting children who it deemed less than fully capable of making informed judgments on the basis of advertising. As in Ford, the law imposed a total ban, but in Irwin Toy there was some evidence that such a measure was required. The evidence, it must be said, fell well short of proving with certainty that the law enacted by Quebec was the only or even the least drastic way to achieve the goal of protecting children from advertising. However, the Supreme Court accepted that the evidence was sufficient to support Quebec’s claim. The Court recognized that, in this area, the facts were not susceptible of clear proof and that the legislature had to be given some latitude:

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.²¹There is much to be said for the view that, while commercial expression does qualify for constitutional protection, Parliament and the legislatures are entitled to some latitude when enacting protective measures in the public interest. Commercial expression has only tenuous connection to the underlying values of democratic...