Commercial Speech, Content Regulation / Censorship
BestWater International GmBH v. Mebes
Closed Mixed Outcome
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The Supreme Court of Canada upheld a ban on children’s advertising. In 1980, Irwin Toy broadcasted advertisements that violated the Consumer Protection Act’s ban on children’s advertising. Toy argued that the ban violated his right to freedom of expression and commercial speech. The Court reasoned that there existed a pressing and substantial government objective to protect children from the manipulation of advertising, and that the ban resulted in minimal impairment of the right to freedom of expression and created no deleterious effects.
In 1980, the respondent broadcast advertisements which were claimed to be in violation of the Consumer Protection Act. An interlocutory injunction was granted by the Superior Court against the respondent to which the respondent appealed. The Court found that this act was not aimed exclusively at television advertising and the purpose of the act to protect the consumer was valid. Ultimately the Court rejected the proposition that the Act infringed on the right to commercial speech. The Court of Appeals majority opinion stated that the act did not serve an important enough legislative purpose to justify the Act’s interference with commercial speech. This was again appealed to the Supreme Court of Canada.
This case involves the constitutionality of the Consumer Protection Act, as it prohibits television advertising that is directed at children under the age of thirteen. This case comes before the Supreme Court from the Quebec Court of Appeal, appealed from the Superior Court for the District of Montreal. The Superior Court for the District of Montreal dismissed the action.
The first issue before the Court was the validity of the Consumer Protection Act under the division of powers in Canada, and whether this act impermissibly infringed on federal powers. The respondent put forth several arguments why this Act violated separation of powers, all of which were rejected by the Court. The Court found “the provisions in question do not trench on exclusive federal jurisdiction by purporting to apply to a federal undertaking and, in so doing, affecting a vital part of its operation.” [Pg. 21, para. 1]
The Court then examined whether the Act impermissibly infringed on freedom of expression. This case came before the Court at the same time as two other cases, Ford and Devine, which all employed similar questions implicating freedom of expression. However, this case concerned advertising directed at children, thus dealing with different questions than those raised in the other cases before the Court.
First, the Court looked at whether the Respondent’s conduct was within the scope of protection afforded by freedom of expression. On this matter, the Court found that advertising does aim to convey a meaning and is not outside the scope of protected forms of expression, therefore meeting this first prong.
Second, the Court looked at whether the purpose of the government action was to restrict that freedom of expression. The Court explained the important difference between content based and content neutral restrictions, and analyzed whether the effect of the governmental action was to restrict freedom of expression. The Court found that the purpose of the relevant provisions of the Consumer Protection Act were to restrict not just the time, place, and manner of certain kinds of speech – but to restrict content directly. This type of restriction can only be allowed if it meets the test under Section 1 of the Canadian Charter and Section 9.1 of the Quebec Charter (ruled virtually the same by the Court). The respondent argued that under the Canadian Charter the Act was void for vagueness; specifically, that the provisions were confusing and contradictory and left too much discretion to the judiciary. However, the Court found that the provisions were not confusing or contradictory, and that the Act provided an intelligible standard for the judiciary in interpreting the Act. Therefore, the test for the Court was the constitutionality of the provisions under the Canadian and Quebec Charter, or the Oakes test.
The Oakes test first asks whether there is a pressing and substantial objective to the legislation. The Court found this part of the test was met as this legislation is aimed at protecting a vulnerable group to commercial manipulation within our society, e.g., children under thirteen years of age. Second, the Court discussed whether the means to accomplish the legislative goal were proportional to the objective. The Court found that: (1) the ban rationally connected to protecting children from advertising; (2) the ban was the minimal impairment on freedom of expression with the goal of protecting children from advertising; and (3) there was no suggestion that the ban produced deleterious effects. Therefore, the Court found that the ban did not violate Section 1 of the Canadian Charter or Section 9.1 of the Quebec Charter.
Finally, the Court looked at whether the Act violated Section 7 of the Canadian Charter, which gives every individual the right to life, liberty and security. However, the Court found that because this Act applies to corporations, and not individuals, corporations cannot claim the protection of Section 7.
The dissent, written by Justice McIntyre, did not agree that the infringement by the Consumer Protection Act on the Canadian Charter was justified or proportional to the infringement upon freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome. Although, the Court utilizes a multi-pronged test to determine if the publication bans are justified even though they infringe on freedom of expression, the Court ultimately dismisses the action because the publication bans meet all the prongs of the Oakes test according to the Court.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Section 3 and 9.1
Section 248; 249; and 252
Case significance refers to how influential the case is and how its significance changes over time.
As a judgment of the Supreme Court, the highest Court in Canada, this decision binds all lower courts.
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