Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 SCR 232
The Royal College of Dental Surgeons of Ontario and the Discipline Committee of the Royal College of Dental Surgeons of Ontario Appellants
v.
Howard Rocket, D.D.S., and Brian Price, D.D.S. Respondents
and
The Attorney General of Quebec Intervener
indexed as: rocket v. royal college of dental surgeons of ontario
1990: March 22; 1990: June 21.
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Freedom of expression ‑‑ Profession restricting members' advertising -- Whether or not restrictions an infringement of freedom of expression -- If so, whether or not restrictions justified -- Regulation 447 of the Health Disciplines Act, R.R.O. 1980, ss. 37(39), (40) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Appellants were dentists who participated in an advertising campaign. As a result, they were charged with violating two subsections of Regulation 447 made pursuant to the Health Disciplines Act -- s. 37(39) which explicitly restricts dentists' advertising and s. 37(40) which was a general professional misconduct provision. They brought these proceedings challenging the constitutionality of s. 37(39) and seeking a declaration that s. 37(40) was inapplicable. The Divisional Court dismissed the applications and the decision with respect to s. 37(39) was appealed to the Court of Appeal and subsequently reversed. The Court of Appeal found that s. 37(39) infringed the guarantee of free expression under s. 2(b) of the Charter and could not be justified under s. 1. The constitutional questions before this Court queried whether or not s. 37(39) of the Regulation offends the guarantee of freedom of expression in s. 2(b) of the Charter, and if so, whether or not it was nevertheless justified under s. 1 of the Charter. A further question arose as to what remedy this Court should grant should s. 37(39) be found to violate the Charter.
Held: The appeal should be dismissed.
The freedom of expression protected by s. 2(b) of the Charter includes commercial speech such as advertising, even though the Charter was not intended to protect economic interests, because advertising aims to convey a meaning and hence involves more than economics. The advertising which was regulated by s. 37(39) did not take an offensive or prohibited form so as to be excluded from the protection of s. 2(b).
Section 37(39) of the Regulation prohibits legitimate forms of expression and so infringes s. 2(b) of the Charter. The provision effectively bans usual and acceptable forms of advertising -- radio, television and even the newspapers apart from an announcement upon commencement or change of location of practice -- even though nothing in their use should deprive an otherwise legitimate expression of the protection afforded by s. 2(b). The provision also infringes s. 2(b) in that it purposefully limits the content of the advertising.
Two opposing factors -- that advertising is only to increase profit and that it plays an important role in consumer choice -- are usually present in varying degrees in commercial advertising. Here, the element of consumer choice is significant. Consumers of dental services would be highly vulnerable if advertising were unregulated. 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 a relatively important one.
Section 37(39) of the Regulations could not be justified under s. 1 of the Charter.
The objective of the Regulation is sufficiently important to override a Charter right and s. 37(39) is rationally connected to this objective. The provinces have a legitimate interest in regulating professional advertising in order to maintain a high standard of professionalism (as opposed to commercialism) and to protect the public from irresponsible and misleading advertising. A distinction can be drawn between restrictions on information about standardized products and restrictions on claims that are inherently not susceptible of verification. Professional regulation of advertising is clearly justified in circumstances where a claim is not inherently susceptible of verification.
The means used to achieve the legislative objective does not impair the freedom as little as possible. Section 37(39) is very broadly drafted in that it starts with an absolute prohibition on all advertising and then sets out exceptions to that prohibition. The effect of the legislative measure, furthermore, is not proportionate to the objective. 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). Useful information is restricted without justification.
The impugned section should be struck. Overly broad legislation, if left in force, may prevent people from engaging in lawful activities simply because the prohibition is still "on the books". The section is drafted in such a way that it cannot be amended by striking out those portions which are overly broad. Because the section is cast in the form of limited exclusions to a general prohibition, the Court would be required to supply further exceptions. The profession and legislators, however, are in the best position to determine the precise content and wording of such further exceptions as may be required. It is not impossible to draft regulations which prohibit advertising which is unverifiable and unprofessional while permitting advertising which serves a legitimate purpose in providing the public with relevant information.
Professional bodies have a heavy duty to adopt appropriate regulations which do not unduly restrict the freedom of expression of their members. The importance of promoting professionalism and preventing irresponsible and misleading advertising, however, outweighs the protection of any commercial interests of professionals.
Cases Cited
Applied: Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; referred to: Re Klein and Law Society of Upper Canada (1985), 1985 CanLII 3086 (ON SCDC), 16 D.L.R. (4th) 489; Valentine v. Chrestensen, 316 U.S. 52 (1942); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 (1935); RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitution Act, 1982, s. 52(1), (2).
Regulation 447, R.R.O. 1980, ss. 37(39), (40).
United States Constitution, First Amendment.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 1988 CanLII 4558 (ON CA), 64 O.R. (2d) 353, 49 D.L.R. (4th) 641, 36 C.R.R. 241, allowing in part an appeal from a judgment of the Divisional Court dismissing an application for declaratory relief. Appeal dismissed.
R. E. Shibley, Q.C., and H. Travassos, for the appellants.
Martin Teplitsky, Q.C., for the respondents.
Jean Bouchard and Marise Visocchi, for the intervener.
//McLachlin J.//
The judgment of the Court was delivered by
MCLACHLIN J. -- The issue in this case is whether restrictions on advertising imposed by the College of Dental Surgeons on its members infringe the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.
The Background
Dr. Howard Rocket and Dr. Brian Price are dentists practising their profession in Ontario. They 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.
As a result of their participation in this advertising campaign, Dr. Rocket and Dr. Price were charged with violating ss. 37(39) and (40) of Regulation 447, R.R.O. 1980, made pursuant to the Health Disciplines Act. They brought these proceedings challenging the constitutionality of s. 37(39), a provision that explicitly restricts dentists' advertising, and seeking a declaration that s. 37(40), the Regulation's general professional misconduct provision, was inapplicable.
Statutory Provisions
The Canadian Charter of Rights and Freedoms provides:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
Doctors Rocket and Price are charged with professional misconduct under ss. 37(39) and (40) of Regulation 447 made pursuant to 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. Sections 37(39) and (40) read as follows:
- For the purposes of Part II of the Act, "professional misconduct" means:
39.publishing, displaying, distributing or using or permitting, directly or indirectly, the publishing, display, distribution or use of any advertisement related to the practice of dentistry by a member, or a member associating with or being employed by any person, other than,
i.professional cards that contain only the name of the member, a vocational designation, the member's address, academic degrees, telephone number and office hours,
ii.an announcement upon commencing practice or changing the geographical location of a member's practice that,
A.does not exceed two standard newspaper columns in width and five centimetres in depth including the margins,
B.does not contain references to qualifications, procedures or equipment, and
C.does not appear more than three times in a newspaper or periodical in respect of the commencement of the practice or of a change in the geographical location of the practice,
iii.appointment cards that do not contain more than the information contained in a professional card and the time and date of the appointment or appointments,
iv.reminder notices to patients;
v.announcement cards that do not state more than the information contained in a professional card and an announcement of the commencement of the practice of the member, a change of location or a new association in practice,
vi.not more than two exterior signs stating a member's name and his vocational designation, on the premises where the member practises but,
A.only one sign may be a suspended sign,
B.only one sign may be illuminated and shall not be of an intermittent or neon type,
C.the letters used in a sign shall not exceed ten centimetres in height,
D.words designating office hours may be added to an entrance sign in unilluminated letters not more than five centimetres in height,
E.where an entrance is difficult to find, the words "Entrance on" may be added to the sign,
vii.door plates and listings on building directories on the premises where the member is engaged in the practice of dentistry in letters not exceeding 2.5 centimetres in height,
viii.a telephone directory listing,
A.in the white pages that,
- is of dark or light type,
2.where a member is a certified specialist, may indicate the specialty designation,
- does not list office hours, and
4.is only an alphabetical listing according to the member's surname, and
B.in the yellow pages that,
- is only of light type,
2.where the member is a certified specialist, may indicate the specialty designation,
- does not list office hours, and
4.is listed only in the telephone listing for the geographical area in which the member is engaged in the practice of dentistry; and
40.conduct or an act relevant to the practice of dentistry that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Judgments
The Divisional Court dismissed the applications of Dr. Rocket and Dr. Price on the basis of its previous decision in Re Klein and Law Society of Upper Canada (1985), 1985 CanLII 3086 (ON SCDC), 16 D.L.R. (4th) 489.
The majority in the Court of Appeal (1988), 1988 CanLII 4558 (ON CA), 64 O.R. (2d) 353, reversed the decision of the Divisional Court with respect to one of the impugned provisions. Cory J.A., Goodman J.A. concurring, held that commercial messages are protected by s. 2(b) of the Charter, and found that s. 37(39) infringed the guarantee of free expression under s. 2(b) of the Charter. Turning to the question of whether this limitation on free expression could be justified under s. 1 of the Charter, he concluded that s. 37(39) failed the s. 1 test because it was an overbroad, catching expression which clearly should be protected under s. 2(b) in view of the right of free expression and the public interest in obtaining information. At the same time, he declined to grant a declaration that s. 37(40) (professional misconduct) could not be applied to the conduct of the dentists.
Dubin A.C.J.O., dissenting on the issue of the constitutionality of s. 37(39), emphasized the duty and importance of the College's regulating and disciplining its members in the public interest. In his view, the freedom of expression guaranteed by s. 2(b) of the Charter does not extend to violations of regulations concerned with maintaining the ethics of a profession. It is not for the courts to pass minute judgment on this or that aspect of the regulations which a professional body adopts pursuant to its duty to maintain appropriate professional standards and ethics. Dubin A.C.J.O. went on to state that in any event the remedy would not be to strike out the section in its entirety, but rather to refuse to enforce those parts of it which might be overbroad.
Leave to appeal to this Court was granted. The respondents did not cross‑appeal the refusal of the Court of Appeal to grant a declaration that the general misconduct provision, s. 37(40), could not be applied to the conduct of the dentists in this case.
The Issues
The issues may be simply stated: (1) does s. 37(39) of the Regulation offend the guarantee of freedom of expression in s. 2(b) of the Charter, and (2) if so, is s. 37(39) nevertheless justified as a reasonable limit in a free and democratic society under s. 1 of the Charter?
The two issues are reflected in the constitutional questions stated by the Chief Justice of this Court on June 2, 1989:
1.Does s. 37(39) of Ontario Regulation 447 of R.R.O. 1980, (as amended, by Ontario Regulation 720/83), made pursuant to the Health Disciplines Act, R.S.O. 1980, c. 196 (the "Regulations"), regulating advertising by members of The Royal College of Dental Surgeons of Ontario, infringe or deny the rights and freedoms guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter")?
2.If s. 37(39) of the Regulations infringes or denies the rights and freedoms guaranteed by s. 2(b) of the Charter, can s. 37(39) be justified by s. 1 of the Charter?
If s. 37(39) of the Regulation is found to violate the Charter, the further question arises of what remedy this Court should grant.
Analysis
I. The Regulation of Professional Advertising and Freedom of Expression -- General Considerations
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.
The first question is whether the protection conferred by s. 2(b) applies to commercial speech, such as advertising. The argument against applying s. 2(b) to commercial speech rests on the proposition that the Charter was not intended to protect economic interests. This argument has been rejected by this Court on the ground that advertising involves more than economics. In Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, where the issue was the constitutionality of a provincial law restricting the language of advertising, the Court noted advertising's intrinsic value as expression, the protection afforded to the recipients of advertising as well as the advertisers, and the importance of fostering informed economic choices to individual fulfillment and autonomy. Hence in Ford and subsequently in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, commercial advertising was held to be protected by s. 2(b) of the Charter.
Although it has been clearly held that commercial expression does not fall outside of the ambit of 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 in s. 2(b) of the Charter, but this does not end the inquiry. The further question of whether the infringement can be justified under s. 1 of the Charter must be considered. It is at this stage that 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, in the case of regulation of advertising, is the fact that the expression at issue is wholly within the commercial sphere.
This approach to the treatment of commercial speech under the Charter may be compared with its treatment under the First Amendment to the Constitution of the United States. Since the American Constitution does not contain the equivalent of s. 1 of the Canadian Charter, courts there have historically drawn distinctions between categories of speech at the stage of determining if there is an infringement of the First Amendment. For many years commercial speech was considered to be beyond the scope of the First Amendment protection: see, e.g., Valentine v. Chrestensen, 316 U.S. 52 (1942). More recently, the scope of First Amendment protection has been broadened to include categories of speech that were formerly excluded. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), it was accepted that First Amendment protection could be extended to advertisements.
Some elements of the "categorical" approach survive, however, in that 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. In order to justify a restriction on commercial speech, the state must establish that: (1) the restriction serves a substantial interest; (2) the regulatory measure directly advances that interest; and, (3) the restriction is no broader than necessary to advance that interest -- Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Second, it is important to note that while overbreadth remains part of the test, the consequences of overbreadth in commercial speech cases are not to invalidate the legislation, but merely to prevent reliance on overbroad provisions. Ordinarily, overbreadth leads to a conclusion of invalidity in first amendment cases, because of the danger that it will "chill" constitutionally‑protected speech. But this has not been seen as an acute danger in the case of commercial speech, with the result that a person challenging a rule on the ground that it might apply to speech clearly meriting protection could not rely on that defect unless his or her own speech fell within that category: Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
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 against due process challenge, commenting at p. 612 that "the legislature was not dealing with traders in commodities, but with the vital interest of public health": In Virginia State Board of Pharmacy, supra, p. 773, n. 25, the court's opinion contains the following caveat:
We stress that we have considered in this case 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.
Burger C.J., concurring, likewise stressed, at p. 774, that: "Attorneys and physicians are engaged primarily in providing services in which professional judgment is a large component, a matter very different from the retail sale of labeled drugs already prepared by others." And in subsequently holding that the first amendment protected the right of lawyers to advertise fees, the court reiterated the distinction in Bates v. State Bar of Arizona, supra, at p. 366:
The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false.
Clearly, although these cases do not deal directly with the issue of claims about the quality of professional services, they suggest that such claims may be more readily regulated than other forms 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 extent to which and the means by which legislation limits professional advertising.
II. Does the Regulation Offend the Guarantee of Freedom of Expression under s. 2(b) of the Charter?
The decisions of this Court in Ford and Irwin Toy suggest the following considerations in determining if s. 2(b) has been infringed.
The first question is whether professional advertising constitutes expressive activity under s. 2(b) of the Charter. The test is whether it aims to convey a meaning: Irwin Toy. Clearly professional advertising meets this test.
The second question is whether the expressive activity limited by the Regulation is excluded from s. 2(b) because it takes a prohibited form. For example, a law prohibiting violence or threats of violence might be held not to be protected by s. 2(b) because of the expression's offensive form: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573.
Section 37(39) of the Regulation prohibits advertising which takes perfectly usual and acceptable forms. It is true that it limits the form in which dentists' advertising may be presented, effectively banning advertising by radio, television and even the newspapers apart from an announcement upon commencement or change of location of practice. But there is nothing inherent in the use of such media which should deprive an otherwise legitimate expression of the protection afforded by s. 2(b).
The third question is whether s. 37(39) of the Regulation has as its purpose the restriction of expression by singling out meanings which are not to be conveyed: Irwin Toy. In other words, is the purpose of the section to restrict the content of expression? The answer to this question must be affirmative. Section 37(39) prohibits not only the manner in which dentists advertise, but what information they may convey to the public by advertising.
I conclude that s. 37(39) of the Regulation infringes s. 2(b) of the Charter by prohibiting legitimate forms of expression and by purposefully limiting the content of that expression.
Dubin A.C.J.O. in the Court of Appeal expressed the view that the disciplinary proceedings brought against these defendants afforded them no basis for protection under the Charter. In his view, the prohibition of advertising such as that in which these dentists had engaged is not protected by the guarantee of freedom of expression in the Charter. I do not take Dubin A.C.J.O. to be suggesting that professional advertising should constitute a generic exception from the scope of s. 2(b). As I understand his analysis, it rests at least in part, on his conclusion that legislative overbreadth is not ground for striking out a legislative provision such as this, and that so long as the particular conduct in issue in the case is within an area where limits can be justified, the prosecution should be allowed to proceed. I address this argument later in the context of remedy.
III. Is the Regulation Justified under s. 1 of the Charter?
A. The Test under s. 1
Two criteria must be satisfied to establish that a limit on a Charter right is reasonable in a free and democratic society. First, the objective which the limit is designed to achieve must be of sufficient importance to warrant overriding a constitutionally protected right. Second, if such an objective is established, the party invoking s. 1 must show that the means chosen to achieve the objective, that is, the limit itself, is reasonable and demonstrably justified. To conclude that the means chosen are reasonable and demonstrably justified, the Court must be satisfied of three things:
1.the measures designed to meet the legislative objective must be rationally connected to the objective;
2.the means used should impair as little as possible the right or freedom in question; and,
3.there must be proportionality between the effect of the measures which are responsible for limiting the Charter right and the legislative objective of the limit on those rights. In effect, this involves balancing the invasion of rights guaranteed by the Charter against the objective to which the limitation of those rights is directed.
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 v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, 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, in most cases, 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‑fulfillment: see Irwin Toy, supra, at p. 976. This suggests that restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b).
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 of s. 2(b) 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, as has been done in the United States. In Irwin Toy, for example, the majority did not emphasize the consumer choice aspect, because the expression in question was advertising aimed at children, and the majority clearly felt that protection of consumer choice in children was much less important than it would be in adults. 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.
The majority in Irwin Toy also identified another factor that will be present in many cases of regulation of commercial expression. They 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 (such as traditional criminal law).
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.
With these considerations in mind, I now turn to the application of the s. 1 test.
B. Application of the Test
(1) The Objective of the Regulation
In determining whether the Regulation is saved under s. 1, the first question is whether the objective of the Regulation is of sufficient importance as to be capable of overriding a Charter right.
It is difficult to overstate the importance in our society of the proper regulation of our learned professions. Indeed, it is not disputed that the provinces have a legitimate interest in regulating professional advertising. The maintenance of professionalism and the protection of the public are at the heart of such regulations. As Dubin A.C.J.O. 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, supra, 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.O. identifies two major aims of regulation of professional advertising. The first is maintenance of a high standard of professionalism (as opposed to commercialism) in the profession. The second is to protect the public from irresponsible and misleading advertising. I have earlier observed that in the United States a distinction has been drawn between restrictions on information about standardized products and restrictions on claims that are inherently not susceptible of verification. 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, even though this may infringe the freedom of expression guaranteed to their members by s. 2(b) of the Charter. The only question is whether the regulation here in question meets the second branch of the test under s. 1 -- whether the particular limit in question is reasonable and demonstrably justified in a free and democratic society.
(2) Whether the Particular Limit is Reasonable and Demonstrably Justified
The first question is whether s. 37(39) is rationally connected to its objective. For the reasons I have given, I think it is. 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, as was the case in Irwin Toy. 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.
I conclude that s. 37(39) of the Regulations cannot be justified under s. 1 of the Charter.
III. Remedy
I have found s. 37(39) of the Regulations to violate the Charter. The question remains of the appropriate remedy. Should it be struck out under s. 52? Or is there a preferable alternative?
Dubin A.C.J.O. in the Court of Appeal would not have struck the section out merely because it might apply overbroadly to situations not at issue in this case. 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. This, as has been seen, reflects the American approach to commercial speech. Rather than striking down overbroad legislation limiting commercial speech, American courts have merely declined to enforce it to the extent that it is overbroad.
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". In the United States, courts have concluded that where commercial speech is concerned this prospect is not so serious that legislation must be struck down.
I am not convinced that this is the case, at least where professional persons are concerned. Professionals are typically very concerned with their standing in the profession, and few would be inclined to set themselves against their governing bodies. Short of a deliberate test case, there is no reason to expect another dentist to advertise factual information which contravenes the Regulation in a way that should be protected under s. 2(b). I am not prepared to accept the remedy advocated by Dubin A.C.J.O.
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. The idea that the Court might do so is supported by the fact that s. 52 of the Constitution Act, 1982 nullifies laws which infringe its guarantees only to the extent that they are inconsistent with the Charter. In my view it would be inappropriate to do so in this case because of the way the section is drafted. 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. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, Dickson J., as he then was, speaking for the Court, stated at p. 169:
While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.
I am satisfied that judicial revision of s. 37(39) of the Regulation would be inappropriate. I specifically leave aside the question of whether it might in other cases be appropriate for the Court to read down legislation by substituting an appropriate constitutional limit for an overbroad limit.
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. 37(39) was drafted in the form of an absolute prohibition subject to specified sections, a method of legislative drafting almost certain to raise the spectre of Charter infringement. Notwithstanding such considerations, I am satisfied that if the appropriate distinctions are borne in mind, it will not be 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. Indeed, having regard to the importance of promoting professionalism and preventing irresponsible and misleading advertising, a consideration that should outweigh the protection of any commercial interests of professionals, a heavy duty rests on professional bodies to adopt appropriate regulations which do so without restricting unduly the freedom of expression of their members.
Conclusion
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Shibley, Righton & McCutcheon, Toronto.
Solicitors for the respondents: Teplitsky, Colson, Toronto.
Solicitor for the intervener: The Attorney General of Quebec, Ste‑Foy.
