Looking Northward: Canada's Approach to Commercial Expression

Abstract

The commercial speech doctrine in the United States has come under fire from some scholars who argue that the categorical approach of determining commercial speech adopted by the Supreme Court of the United States is unworkable. Because of the debate on the appropriate constitutional protection for commercial speech, it can be instructive to look at how another country deals with the issue. An examination of the Canadian Supreme Court cases dealing with commercial speech finds that the Court does not, at the outset, categorize speech as commercial, but first considers the nature of the speech when examining the government's role in regulating the speech and the effect of the regulation. The result is that the Court is more actively engaged in a substantive discussion of the right and the regulation.