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Constitutional Law Briefs

Dissent (McIntyre):
•    What’s the harm of advertising at children??  Is their welfare really at risk?
•    FOE 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

RJR MacDonald Inc. v. AG (1995)    Gov’t concedes prohibition on advertising constitutes an infringement of FOE; and objective is P&S
Facts:    Tobacco Products Control Act prohibited the advertising & promotion of tobacco products and required manufacturers to add to packages an unattributed health warning (dangers of smoking); Tobacco companies challenged the Act on basis of section 2(b) infringement; The prohibition against advertising being a violation of s.2(b) is uncontested
Issue:    1.    What is the Proper Approach to s.1 Analysis?
2.    Do unattributable health warnings violate s.2(b)?

Dissent Analysis:
LaForest    Issue 1: What is the Proper Approach to s.1 Analysis?
•    Is infringement reasonable and can it be demonstrably justified in a free & democratic society?
•    Need to strike delicate balance b/w individual rights and community needs
•    Need to focus on contextual elements such as nature of legislation and nature of infringed right
•    Strict application of proportionality analysis would place impossible onus on gov’t by requiring it to produce definitive social science evidence of the causes of a pressing social concern
•    Gov’t is mediating b/w different groups and ∴ Judicial Deference to legislative decisions
•    Courts are specialists in the protection of liberty and interpretation of legislation and are well placed to subject criminal justice legislation to careful scrutiny
•    Courts are NOT  and should not be specialists in realm of policy-making – this is a role properly assigned to the elected representatives of the people, who can:
o    Assess social science information
o    Mediate between competing social interests
o    Protect vulnerable groups
•    Harm of tobacco, and underling profit motive place this form of expression far from the “core” FOE values as prostitution, hate speech, porn, ∴ VERY LOW degree of protection under s.1
•    Serves no political, scientific or artistic end
•    Does not promote participation in political process

Proportionality
i) Rational Connection: Yes - RC b/w the prohibition on ads and consumption of tobacco
•    Tobacco co. would not spend millions of dollars every year on advertising if this didn’t increase consumption of their product
•    Appellants argue that advertising is for promoting brand loyalty only (arg rejected by crt)
•    Sufficient for gov’t to demonstrate reasonable basis for believing RC exists; Common sense observation
•    Evidence: Internal tobacco marketing docs; expert reports; intn’l materials

ii) Minimal Impairment: Yes.  Passes the Oakes test.
•    Relevance of context cannot be understated in this stage (degree of required fit b/w means and ends will vary depending upon nature of the right and the nature of legislation)
•    Deferential Approach b/c expression falls far from CORE of FOE values
•    Many other jurisdictions have complete bans of tobacco advertising
•    Not up to the courts to decide that a partial ban would be as effective as a total one; this is the type of “line drawing” that this court has identified as being within the institutional competence of legislatures and not courts

iii) Deleterious Effects
•    The deleterious effects of restricting the rights of tobacco to advertise do not outweigh the legislative objective of reducing the inducements on Cdns to consume harmful products

Issue 2:  Do unattributable health warnings violate s.2(b)? *one of the rare times that we’re discussing the violation itself, and not whether it’s justified under s.1 or not  No
•    They can’t reasonably be said to put words into RJR’s mouth, relying on Lavigne
•    They are unattributed!
•    Common knowledge that government regulations require such statements ie: POISON on hazardous products
•    Even if it were found to be an infringement, would be justified under s.1
•    Stresses the importance of context ie: big corporation, selling a product for profit
•    “I believe a lower level of constitutional scrutiny is justified in this context”

Majority Analysis:
(McLachlin)

Issue 1: What is the Proper Approach to s.1 Analysis?
•    Impugned law must be considered in social and economic context, but this contextual approach does not reduce obligation on gov’t to meet burden of demonstrating limitation is reasonable and justified
•    Deference must not be taken too far so as to relieve gov’t of burden of proof (civil stnd)
•    Must be a reasoned demonstration of good the law will achieve in relation to the seriousness of the infringement – even if this means the court will confront the “tide of popular public opinion”

I) Is Objective Pressing & Substantial?  Yes
•    Only Objective of the infringing measure is relevant
•    Important to state objective narrowly
•    (Narrow) Objective of advertising ban is to prevent ppl from being persuaded to use tobacco products
•    (Narrow) Objective of mandatory warnings is to discourage ppl who see pckg from use
•    Both are P&SOs; sufficient to justify overriding FOE

II) Proportionality Test
i) Rational Connection: Yes
•    When legislation is aimed at changing human behaviour, causal relationship may not be scientifically measurable
•    Use reason or logic to find connection b/w infringing measure and legislative objective (causal link b/w tobacco advertising, unattributed health warnings, and tobacco use)

ii) Minimal Impairment: No
•    Gov’t must show the measure at issue impairs the right of free expression “as little as reasonably possible” in order to achieve the legislative objective
•    The law must be carefully tailored so that rights are impaired no more than necessary, regardless of how ‘low value’ speech is (profit is irrelevant)
•    Gov’t produced no evidence to show partial ban wd be less effective than total ban (onus on gov’t)∴justification under s.1 is NOT established
•    Gov’t had study on alternatives that it did not offer to the court as evidence – we can deduce from this that it didn’t help the gov’ts case

Commercial speech (for profit), while arguably less important than other forms of speech, should not be lightly dismissed: “motivation to profit is irrelevant to the determination of whether the gov’t has established that the law is reasonably justified as an infringement of FOE”

Issue 2:  Do unattributable health warnings violate s.2(b)? Yes
•    Rely on Straight “FOE necessarily entails the right to say nothing or the right not to say certain things”
•    Gov’t FAILED to show that unattributed warning was req’d in order to achieve its objective of reducing tobacco consumption, ∴this req’d warning is not justified under s.1

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