Advertising and the Charter: Just Do It? An Analysis of the Constitutional Recognition of Commercial Expression

Andrew Wilson

Abstract


One area of Charter jurisprudence which has developed a particularly high level of controversy is the recognition of "commercial expression" as falling under the purview of "freedom of expression" and thereby deserving of s. 2(b) Charter protection. The source of this controversy relates to the nature of both the Charter's guarantees and of commercial expression. The Charter is the supreme law of Canada and the main source of our constitutionally guaranteed rights and freedoms. Commercial expression is that expression having the sale of a good or service as its purpose.

Commercial expression is, simply put, advertising. Many people no doubt feel a certain level of discomfort affording advertising for breakfast cereal the same level of constitutional protection as political speech. Despite this common sensical antipathy toward commercial expression, the Supreme Court of Canada has firmly entrenched commercial expression as being within the purview of section 2(b) of the Charter.

This paper will demonstrate why commercial expression should not be afforded section 2(b) protection under the Charter. The Supreme Court, in granting commercial expression constitutional recognition, relied on a series of justifications. Upon closer analysis, these justifications in fact lead to the conclusion that commercial expression should be denied section 2(b) protection. The reasons given by the Supreme Court support the constitutional recognition of commercial expression in theory only, and not in practice.

The jurisprudential framework of the Supreme Court in deciding these issues is a predominantly liberal one. In addition, the court uses economic justifications for granting commercial expression constitutional recognition. For these reasons this paper will use liberal and law and economic analyses to challenge the conclusions reached by the Supreme Court. Rather than demonstrate that the Court's conclusions can be challenged by alternative legal philosophies (for example, Critical Legal Studies or feminism), this paper proposes to show that the Supreme Court's conclusions can be challenged from within the very same framework(s) used by the Court.


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