Bill C-45 received Royal Assent from Parliament in June. When it comes into effect on October 17, it will create the Cannabis Act, the legislation that will permit the use and selling of marijuana. The act includes restrictions on the advertising of cannabis. Unfortunately, these restrictions go too far. They invoke a blanket ban on advertising, which threatens to violate our fundamental freedom of expression.
Section 17 of the Cannabis Act creates a blanket prohibition on the promotion of marijuana and marijuana-related products and services. Although there are some exceptions, such as promotion that gives purely factual information about a product, this restriction makes it extremely difficult for a small business to build any sort of brand or differentiate itself online. Without having the freedom to advertise, many marijuana growers and distributors will be put in a position where the government has prevented them from being able to grow their businesses.
In our opinion, this blanket prohibition on all forms of marijuana promotion violates our fundamental freedom of expression protected by section 2(b) of the Charter. Commercial expression, such as advertising and promotion, plays an important role in our society that should not be overlooked. Some may take a dim view of advertising, but the role of advertising includes informing the public about available goods and services. As the Supreme Court of Canada put it in Ford v Quebec (Attorney General), commercial expression “plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfilment and personal autonomy.” Having the freedom to express ourselves, either through speech or through commercial advertising, is an essential element of our democratic society.
Bill C-45’s limitation on freedom of expression is unjustified
Commercial expression, like all other freedoms protected by the Charter, is subject to certain limitations. Section 1 of the Charter allows an act to limit your rights when certain criteria are met. First, the objectives of the act must be considered sufficiently important to override a charter protection. Second, once the objectives of the act are considered sufficiently important, it must be shown that the way the freedom is restricted is reasonable and demonstrably justified.
“It makes little sense that marijuana would be treated as harshly as tobacco when marijuana has been shown to have significant health benefits.”
The Cannabis Act states that its purpose is to protect public health and public safety and, in particular, to protect children from having access or being induced to use marijuana. Although this is an important objective, a blanket prohibition on all promotion cannot be said to be reasonable or demonstrably justified.
To be reasonable or demonstrably justified, the measures used to reach an objective must be fair and not arbitrary and should impair a person’s right as little as possible. By putting a significant ban on all cannabis advertising, the government has overstepped its objective of protecting youth. This is equivalent to creating a complete ban on voting simply because children are not allowed to vote. Our right to freely express ourselves cannot be said to have been impaired as little as possible.
The government is treating Cannabis as equivalent to tobacco
Strangely, the Cannabis Act treats marijuana as if it were the same as tobacco. The Cannabis Act is almost a word-for-word copy of the Tobacco and Vaping Products Act. Both acts have a blanket prohibition on promotion while permitting informational and brand preference advertising in limited circumstances. Additionally, both acts have the same stated objective of protecting public health and young people from having access to or being induced to use the product.
Parliament likely decided to copy tobacco legislation because the Supreme Court of Canada has already decided that the Tobacco Act’s limit on expression is reasonable and demonstrably justified. However, parliament has failed to realize that the Supreme Court of Canada came to this decision based on the conclusive evidence linking tobacco use to numerous debilitating and fatal diseases. The reality is, however, that marijuana does not have anywhere near the negative health side effects of tobacco. In fact, considering the damaging effects of tobacco, if it were to appear as a new substance with the known health implications, it would likely be banned outright justifiably as a public health emergency.
It makes little sense that marijuana would be treated as harshly as tobacco when marijuana has been shown to have significant health benefits. Alcohol, which has been conclusively linked to significant health and safety concerns, is allowed to be freely advertised while marijuana is still facing unfair treatment by the government. Canadians recognize that marijuana has its place in our society and does not need to be treated as dangerous. The government needs to catch up with the times. It isn’t the 1940s anymore.
Our Charter rights violated by legislation that goes too far
What amounts to a ban on advertising in Bill C-45 violates our fundamental freedom of expression by failing to be rationally connected to any legitimate public purpose. When it comes time to justify this infringement of our rights, lawyers for the federal government will not be able to gather the evidence to show cannabis is a health risk or that a ban on advertising is necessary to protect the public. Simply put, cannabis is not tobacco.
