Rocket v. Royal College of Dental Surgeons of Ontario  2 S.C.R. 232: Appellants were dentists who participated in an advertising campaign. As a result, they were charged with violating the Health Disciplines Act --- 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 judgment of the Court was delivered by MCLACHLIN J.
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 (page 233) 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 (page 234) 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.
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