[1995] 2 F.C. 778
T-225-90
Association of Canadian Distillers (Applicant/Plaintiff)
v.
The Canadian Radio-Television and Telecommunications Commission (Respondent/ Defendant)
Indexed as: Assn. of Canadian Distillers v. Canadian Radio-Television and Telecommunications Commission (T.D.)
Trial Division, Dubé J.—Ottawa, May 30 and June 12, 1995.
Broadcasting — Motion for summary judgment declaring Television Broadcasting Regulations, 1987, s. 6(2) of no force or effect — Distillers not allowed to advertise spirits containing more than 7% alcohol — Advertising on television expressive activity protected by Charter — Restriction in s. 6(2) making distinctions based on type of beverage rather than alcoholic content — Motion granted.
Constitutional law — Charter of Rights — Fundamental freedoms — Television Broadcasting Regulations, s. 6(2) prohibiting broadcast of spirits containing more than 7% alcohol — Whether inconsistent with freedom of expression in Charter, s. 2(b) — Purpose of Regulations, s. 6(2) to restrict content of commercial expression — Restriction arbitrary, irrational — Minimal impairment, proportionality tests not met — Provision declared of no force or effect.
Practice — Judgments and orders — Summary judgment — Declaration provision of Television Broadcasting Regulations of no force or effect for infringing charter-guaranteed freedom of expression — Purpose of new RR. 432.1-432.7 to spare litigants delay, expense of trial where outcome in little doubt, all parties seek same solution.
This was a motion for summary judgment under Federal Court Rules 432.1-432.7 declaring subsection 6(2) of the Television Broadcasting Regulations, 1987 to be of no force or effect. That provision prohibits the broadcast on television of spirits containing more than 7% alcohol by volume. The application contended that while the distillers it represents are not permitted to advertise beverages containing more than 7% alcohol, other products—such as fortified wine—containing even greater percentages of alcohol may be advertised on television. Although the CRTC was free to amend its own Regulations, it chose not to do so until this action was resolved. The issue was whether subsection 6(2) of the Regulations is inconsistent with the freedom of expression of the applicant and its members as guaranteed by paragraph 2(b) of the Charter and whether the restriction on television advertising of spirits is a reasonable limit demonstrably justifiable in a free and democratic society under section 1 of the Charter.
Held, the motion should be allowed.
According to the scientific evidence, none of the major medical or psychosocial problems related to alcohol abuse are associated with any particular type of alcoholic beverage. The expert witnesses were unanimous in saying that all forms of beverage alcohol are essentially the same and that they are equally susceptible of abuse or of being consumed with moderation. There is no scientific evidence, in their view, to justify any differential treatment.
The Court has an obligation as the guardian of the Constitution to exercise the judicial review powers granted it by the Constitution, whether or not the regulatory authorities, for reasons of their own, are willing to take the initiative. Commercial expression, including advertising on television, is expressive activity and is therefore protected under paragraph 2(b) of the Charter. The purpose of subsection 6(2) of the Regulations is to restrict the content of commercial expression. It is for the governmental authority to show that the impugned provision is not arbitrary but is carefully designed to meet the government’s objective. Since the weight of expert evidence before the Court was that spirits are no more susceptible of abuse than are beer, wine or cider, the absolute restriction in subsection 6(2) is arbitrary and irrational. The impairment was not as minimal as it could have been as there were other regulatory responses available to the CRTC which would include a non discriminatory test based on percentage of alcohol and not on types of beverage. Subsection 6(2) is not a proportional response that would justify a regulation which is inconsistent with the provisions of the Constitution. The new Federal Court Rules 432.1-432.7 were introduced primarily to spare litigants the burden, expense and delay of proceeding to trial when there will be little doubt as to the outcome of the action, as in the instant case, where all parties in the action sought the same solution. Subsection 6(2) of the Regulations is invalid and of no force or effect.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b), 24(1).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19).
Federal Court Rules, C.R.C., c. 663, RR. 432.1 (as enacted by SOR/94-41, s. 5), 432.2 (as enacted idem), 432.3 (as enacted idem), 432.4 (as enacted idem), 432.5 (as enacted idem), 432.6 (as enacted idem), 432.7 (as enacted idem).
Liquor Licence Act, R.S.O. 1990, c. L.19.
Television Broadcasting Regulations, 1987, SOR/87-49, s. 6 (as am. by SOR/93-208, s. 1).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Assn. of Canadian Distillers v. Canada (Canadian Radio-television and Telecommunications Commission), [1994] F.C.J. No. 1937 (T.D.) (QL).
REFERRED TO:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1.
AUTHORS CITED
Hogg, Peter. Constitutional Law of Canada, 3rd ed. (Supplemented), Scarborough: Carswell, 1992.
MOTION for summary judgment under Federal Court Rules 432.1-432.7 declaring subsection 6(2) of the Television Broadcasting Regulations, 1987 to be of no force or effect. Motion allowed.
COUNSEL:
Stephen B. Acker for applicant/plaintiff.
Avrum Cohen and Carolyn G. Pinsky for respondent/defendant.
SOLICITORS:
Johnston & Buchan, Ottawa, for applicant/ plaintiff.
Canadian Radio-Television and Telecommunications Commission, Ottawa, for respondent/ defendant.
The following are the reasons for judgment rendered in English by
Dubé J: This motion is for summary judgment pursuant to new Federal Court Rules [C.R.C., c. 663, as enacted by SOR/94-41, s. 5] 432.1-432.7 declaring subsection 6(2) of the Television Broadcasting Regulations, 1987[1] (the Regulations) to be of no force or effect.
The grounds of the motion are that subsection 6(2) of the Regulations, which prohibits the advertising on television of spirits containing more than 7% alcohol by volume, is inconsistent with the freedom of expression of the plaintiff (ACD) and its members as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and that subsection 6(2) is not a reasonable limit demonstrably justifiable in a free and democratic society under section 1 of the Charter.
1. Procedural background
ACD filed a statement of claim in this action on January 25, 1990, seeking a declaration to that effect. The defendant (CRTC) filed a statement of defence on April 30, 1991, denying several allegations of the statement of claim, admitting other allegations and praying that the action should be dismissed. The Attorney General of Canada, originally named as a defendant in the action, applied to be removed as a party, which application was granted by order of the Court on September 5, 1991. The Addiction Research Foundation (ARF) applied for and was granted intervenor status with limited rights by order of the Court dated October 17, 1991.
However, CRTC changed its position and joined ACD in an application to the Court for judgment on consent. The joint application was dismissed by Mr. Justice Rouleau on December 16, 1994 [[1994] F.C.J. No. 1937 (T.D.)(QL)], on two grounds: (1) there were insufficient facts before the Court; and (2) CRTC was free to repeal subsection 6(2) of its own Regulations, if it wanted to. The Brewers Association of Canada (BAC) and the Canadian Association of Broadcasters (CAB) also applied to the Court separately for intervenor status in the context of that joint application but both applications were denied.
The instant motion for summary judgment was denied by Mr. Justice Pinard on May 10, 1995, on the ground that the provincial Attorneys General had not been properly notified under section 57 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 19)] which requires the service of a notice of constitutional question on federal and provincial Attorneys General. However, the learned Judge stated that ACD was free to bring a fresh application after proper service of the notices. He also added that the Attorney General of Canada needed no further notice as he had applied to be removed as a defendant in the action. All provincial Attorneys General were properly served on May 12, 1995, but chose not to appear for the hearing of the instant motion. ARF, which had been granted intervenor status as mentioned earlier, filed a letter dated May 25, 1995, to the effect that it does not oppose a granting of summary judgment in this matter.
At the opening of the hearing of this motion, heard by me on May 26, 1995, I made it known that I had strong reservations about granting a consent judgment in public law, largely on the two grounds already raised by Mr. Justice Rouleau, namely that there were insufficient facts before the Court and that CRTC was free to amend its own Regulations. The immediate response was that the situation had changed. This is not a consent judgment but an application for summary judgment on a claim which is not opposed under the new Rules 432.1-432.7. The facts now provided to the Court should prove to be sufficient. All the Attorneys General have been notified, as ordered by the Court, and not only CRTC, but ARF as well, do not oppose the motion. True, CRTC is free to seek an amendment to its own Regulations, but it does not wish to do so. Thus, submitted counsel for the applicant, ACD is entitled to seek a declaration to the effect that subsection 6(2) is discriminatory, infringes upon paragraph 2(b) of the Charter and is not saved by section 1 of the Charter.
2. The issue
The relevant provisions of section 6 of the Regulations read as follows:
6. (1) Subject to subsection (3), a licensee shall not broadcast a commercial message advertising, directly or indirectly, an alcoholic beverage.
(2) Subsection (3) does not apply in respect of any of the following alcoholic beverages:
(a) a spirituous liquor;
(b) a liqueur or an alcoholic cordial; or
(c) an alcoholic beverage for which a standard is not prescribed pursuant to the Food and Drugs Act, that is a distillate or that contains a distilled spirit, and that contains more than 7 per cent ethyl alcohol by volume.
(3) A licensee may broadcast a commercial message advertising, directly or indirectly, an alcoholic beverage where
(a) the sponsor of the commercial message is a brewer, winery, cider-house or distiller;
(b) the sponsor is not prohibited from advertising the beverage by the laws of the province in which the commercial message is broadcast;
(c) subject to subsection (4), the commercial message is not designed to promote the general consumption of alcoholic beverages.
ACD claims that the net effect of subsection 6(2) is that an advertisement for fortified wine containing 20% alcohol by volume can be broadcast on television, whereas advertising a spirits-based beverage containing less alcohol by volume (viz Bailey’s Irish Cream at 17%, and Bacardi’s Hot Buttered Rum at 11%) is not permitted. In other words, ACD contends that the distillers it represents are not allowed to operate on a level playing field with reference to television broadcasting as it is not permitted to advertise alcoholic beverages containing more than 7% alcohol, whereas sponsors of beverages containing a higher volume of alcohol than 7% are allowed to do so.
Thus, ACD submits that subsection 6(2) of the Regulations is in violation of paragraph 2(b) of the Charter which stipulates that everyone has the fundamental freedom of expression, including freedom of the press and other media of communication. ACD also alleges that the violation is not justified under section 1 of the Charter as it is not “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
3. Scientific evidence
As may be expected, the affidavit evidence marshalled by ACD is in support of its basic contentions. No adversarial evidence was filed for the simple reason that the parties who could have provided other views chose not to do so.
According to Harold Kalant, M.D, PhD, a physician and pharmacologist who has been active in the addictions field since 1950, the alcohol contained in each of beer, wine, cider and spirits is of the same chemical composition, and is known as ethyl alcohol. It is common in medical and pharmacological circles to express alcohol intake in terms of “standard drinks”, which are 12 fluid ounces of beer, 5 fluid ounces of table wine and 1.5 fluid ounces of a distilled spirit. Such standard drinks are typical individual servings, indicative of centuries of common experience that such servings produce the same subjective effects regardless of type of beverage consumed.
Dr. Allan Wilson, a physician and psychologist, declares that although differences may exist in the manner in which the body absorbs and metabolizes beverages with different concentrations of alcohol, there are no significant physical or medical differences in the consequences to the individual of consuming different types of beverage alcohol. Indeed, none of the major medical or psychosocial problems related to alcohol abuse are associated with any particular type of alcoholic beverage.
According to Andromache Karakatsanis, Chairman of the Liquor Licence Board of Ontario since 1988, the Liquor Licence Act [R.S.O. 1990, c. L. 19] of Ontario and the regulations and advertising guidelines thereunder do not, except for minor exceptions, discriminate amongst the different kinds of alcoholic beverages: there are no compelling policy reasons why regulators should discriminate adversely amongst beer, wine and spirits in the regulation of advertising of beverage alcohol.
It is also the opinion of these three aforementioned affiants, as well as that of Jan Skirrow, who was at one time the Chief Executive Officer of the Alberta Alcohol and Drug Abuse Commission (1981 to 1988) and later held the same position with the then newly established Canadian Centre for Substance Abuse (1989 to 1992), that all forms of beverage alcohol are essentially the same. They are equally susceptible of abuse or of being consumed responsibly in moderation. It is their view that alcohol control measures such as the rules that govern the advertising of alcoholic beverages should operate so as to treat all forms of beverage alcohol in a non-discriminatory manner: there is no scientific evidence, in their view, to justify any differential treatment.
4. CRTC’s response to the instant action
As mentioned earlier, ACD launched this action in January 1990. It did not pursue the matter for several months to allow a public regulatory process initiated by CRTC to take its course. CRTC announced its findings from a public consultation process in June 1991 by way of a public notice (CRTC 1991-65). It stated that no evidence had been submitted from interested members of the public that would justify the distinction made in the Regulations between wine, beer and cider on the one hand, and spirits on the other. However, CRTC concluded that it would not amend its Regulations until such time as this action was resolved: “any further action by the Commission will await the result of the legal proceedings”.
CRTC conducted its own extensive review in the course of defending this action and came to the conclusion that in the context of the current Regulations, the prohibition against the advertising of spirits on television has no sound basis in science or public policy. CRTC also discovered that few other countries distinguish between spirits-based beverages and beer, wine and cider in their laws and regulations. Finally, it concluded that the total ban of advertising on television of spirit-based beverage alcohol containing more than 7% alcohol by volume cannot be justified as a reasonable limit in a free and democratic society. Accordingly, CRTC and ACD agreed to settle this action through a joint application to the Court.
5. The law and the jurisprudence
It ought to be pointed out at the outset that the relief sought is not based on subsection 24(1) of the Charter which provides for the enforcement of guaranteed rights and freedom through a remedy from the Court but on section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] which proclaims that the Constitution of Canada is the supreme law of the land and that any law inconsistent with its provisions is of no force or effect to the extent of the inconsistency. Whereas subsection 24(1) confers a discretion on the Court, subsection 52(1) requires the Court to make a holding of invalidity if it concludes that the law (or regulation) is inconsistent with the Constitution.[2] The Court has an obligation as the guardian of the Constitution to exercise the judicial review powers granted it by the Constitution, whether or not the regulatory authorities, for reasons of its own, are not willing to take the initiative.
The Supreme Court of Canada has consistently recognized that commercial expression, including advertising on television, is expressive activity and is, therefore, protected under paragraph 2(b) of the Charter.[3] Clearly, the purpose of subsection 6(2) of the Regulations is to restrict the content of commercial expression. Thus, the burden of proof is on the respondent to show that the infringement is justified under section 1 of the Charter as being “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Since CRTC has already admitted that subsection 6(2) of the Regulations cannot be defended, and the Crown, federal or provincial, has not come forward to shoulder the onus, then, the analysis of the justification needs not be extensive. I will therefore briefly apply the three basic tests.
(a) The rational connection test
It is for the governmental authority to show that the impugned provision is not arbitrary but is carefully designed to meet the government’s objective. Otherwise, the rule is not rationally connected to the objective.[4] In the instant case, except for the 7% cooler exception, the impugned provision makes distinctions based on type of beverage rather than content with the result that it prohibits the advertising on television of alcoholic beverages that contain a lower percentage of alcohol by volume than certain alcoholic beverages that are allowed to be advertised. As mentioned earlier, the weight of expert evidence before the Court is that spirits are no more susceptible of abuse than are beer, wine or cider: thus the absolute restriction in subsection 6(2) is arbitrary and irrational.
(b) The minimal impairment test
That test requires the Government to demonstrate that the impugned provision conflicts as little as possible with freedom of expression, while at the same time advancing the government’s objective.[5] In the instant case, the impairment is not as minimal as it could be as there are other regulatory responses available to CRTC which would include a non discriminatory test based on percentage of alcohol and not on types of beverage.
(c) Proportionality test
In light of the above, it is obvious that the presence of subsection 6(2) of the Regulations is not a proportional response that would justify a regulation which is inconsistent with the provisions of the Constitution. A proportional response would be based on a single, identical limit based solely on alcohol level.
6. Summary judgment
The new Federal Court Rules 432.1-432.7 came into force on January 13, 1994. They were introduced primarily to spare litigants the burden, expense and delay of proceeding to trial when there will be little doubt as to the outcome of the action, as in the instant case, where all parties in the action seek the same solution. So as to afford CRTC the opportunity to amend its Regulations in accordance with these reasons, this judgment will only come into force 90 days from its release.
7. Disposition
Consequently, it is hereby ordered that subsection 6(2) of the Television Broadcasting Regulations, 1987, SOR/87-49, as amended, is invalid and of no force or effect as of ninety (90) days from the date of this judgment.