When Are Government-Mandated Messages Constitutional? (Preliminary Thoughts)

In 2007, the Supreme Court of Canada held that the health-related warnings mandated by the federal government to cover about 50% of a cigarette package were constitutional. But are all mandated messages constitutional? The current provincial government is mandating that gas stations place on the pumps an anti-carbon tax message. Failure to do so could result in hefty fines. But is this requirement constitutional? The province is also changing the slogan on licence plates to “A Place to Grow” from “Yours to Discover”, perhaps both of them equally anodyne, but otherwise not particularly objectionable; however, the government will be using the slogan “Open for Business” on commercial licence plates. Would this message on commercial plates be constitutional?

There are, of course, many government-required messages on packages and other commodities or products, including gas pumps. However, while government-mandated messages may breach section 2 of the Canadian Charter of Rights and Freedoms, freedom of expression, they may also be justified under section 1 as “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Canada (Attorney General) v. JTI-Macdonald is the major decision in this line.

In JTI-Macdonald, the warnings constituted 50% of the packaging space (an increase from the previous 33%). Chief Justice McLachlin (as she then was), for the Court, explained why the Attorney General of Canada considered that section 2 had not been infringed:

The regulations under the [Tobacco Products Information Regulations permit the manufacturers to present the health warnings, not as their messages, but as messages from Health Canada. The manufacturers still have half the package to convey such messages as they choose, and they are not confined to a particular size or style of package that might inhibit that ability. As a result, the Attorney General argues, the manufacturers have not shown that they are prevented from conveying messages of their choice on their packaging. Not having discharged this burden, they have not established a breach of their freedom of expression, he concludes.

The Chief Justice dismissed this analysis in part because of the extent of the warnings relative to the pack, saying that the requirement is not a minor restriction on the tobacco companies speech, but a significant one and therefore it does contravene the guarantee; however, it is justified under section 1. The purpose of the warnings is to alert smokers to the hazards of smoking, a pressing and substantial objective; the warnings have a rational connection to the objective by increasing public awareness and in reducing smoking levels; even bigger warnings would have greater effect and therefore this is minimal impairment; and as far as proportionality is concerned, “The benefits flowing from the larger warnings are clear. The detriments to the manufacturers’ expressive interest in creative packaging are small.”

Compelled speech was also at issue in the 1984 Supreme Court of Canada decision in National Bank of Canada v. Retail Clerks’ International Union et al.. The National Bank closed a unionized branch and folded it into a non-unionized branch. Among other findings, the Canada Labour Relations Board found that National Bank had been motivated by anti-union animus and the Board required the president of the Bank to send a letter to employees with prescribed contents. One reason a majority of the Court found that the letter constituted an excess of the Board’s jurisdiction was that requiring the writing of the letter, given its contents, was punitive and that it would appear that it represented the views of the president and the National Bank. Beetz J., for himself and four other justices, stated,

There is nothing to show that such were in fact their views and sentiments. However admirable the objectives and provisions of the [Canada Labour Relations] Code may be, no one is obliged to approve of them: anyone may criticize them, like any other statute, and seek to have them amended or repealed, though complying with them so long as they are in effect.

[Writing and sending the letter (and being required to create a trust fund)] thus force the Bank and its president to do something, and to write a letter, which may be misleading or untrue.

This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.

Furthermore, “the Canadian Charter of Rights and Freedoms … guarantees freedom of thought, belief, opinion and expression. These freedoms guarantee to every person the right to express the opinions he may have: a fortiori they must prohibit compelling anyone to utter opinions that are not his own.”

In contrast, the Supreme Court of Canada in Slaight Communications Inc. v. Davidson upheld an arbitrator’s order to the employer to provide the employee with a letter of reference that contained certain comments about the employee’s work performance, as well as limiting the employer’s reference to that letter, despite the employer’s claim that it infringed its freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms.

One reason in Slaight Communications why the arbitrator-ordered letter passed muster was that the identified facts helped to counteract the impact of the unjust dismissal. In short, correcting a “mischief” can justify expression that would otherwise constitute an unjustified infringement of section 2 of the Charter. The stickers do not correct a mischief, but in fact perpetuate one by failing to provide a correct picture of the impact of the carbon tax. Dickson CJ, for himself and three other justices, who considered both the letter and the limitation of a reference to the letter, distinguished the circumstances in National Bank from those before it in Slaight Communications on the basis that there was no disagreement about the facts in Slaight Communications and unlike in National Bank, its impact was circumscribed, since it would be triggered only when the employer was asked for a reference for Davidson. Justice Beetz held that one element of the letter brought it within National Bank, and may have forced the employer to tell a lie (something with which it disagreed), although this could be remedied by including in the letter a statement that this element constituted a finding of the arbitrator (he also found the limitation to the letter unreasonable, as not permitting the employer to correct negative misapprehensions about the employee that might result from the letter, for example). Justice Lamer held the letter to be justified, since it “is intended to correct the impression given by the fact of the dismissal, by clearly indicating that the dismissal was found by an adjudicator to be unjust and by clearly setting out certain ‘objective’ facts relating to respondent’s performance.” However, he considered it unreasonable to limit Slaight Communications’ comments to the facts in the letter, because a prospective employer could conclude that that is all Slaight Communications had to say and that might not be true. For the purposes of considering the stickers, the important aspect of the letter is that contained objectively factual information.

So, would the anti-carbon tax stickers be constitutional? The Ontario Chamber of Commerce has opposed the stickers because, their president says, “Our members – including gas station operators – have expressed concerns regarding the political nature of the stickers, viewing them as a violation of their rights and freedoms.”

The stickers do not advance an alternative approach to fighting climate change; they purport to be providing information but one that seeks to undermine an approach that has been widely accepted as a positive response to cutting greenhouse emissions (see, for example, “Carbon Tax vs. Cap-and-Trade: What’s a Better Policy to Cut Emissions?“, which compares the benefits and disadvantages of the two approaches, concluding they can both work better than other responses). Rather than being linked to an alternative approach that may also be effective, the stickers reflect the debate between addressing climate change as a priority and focusing on economic (“bread and butter”} issues. They are thus connected to the debate and not to a solution.

Accordingly, the stickers are not a means to advancing a pressing and substantial objective of decreasing the impact of climate change, analogous to the health stickers on cigarette packages. They are related to the objective of advancing the government’s ongoing fight with the federal government (they are merely one of several actions, including the Ontario government’s constitutional challenge to the carbon tax). They are not related to a plan to address climate change.

There is no rational connection between the message of the stickers (that gas prices have increased because of the carbon tax) and opposition to the carbon tax because they fail to provide all the information. Far from correcting a wrong, as was the case in Slaight Communications, they are themselves misleading, since they fail to state that taxpayers receive rebates that may offset the increased cost of gas, an omission reinforced by the dramatic portrayal of the graph. They do not contain objectively factual information as did the letter in Slaight Communications, but rather force the gas station operators to exhibit a message that is not factually accurate as if it were their own.

Even if the requirement were to survive the first steps of the section 1 analysis, the delterious impact on persons required to post the stickers are disproportionate to any benefits of the stickers, or the message on them, in advancing the government’s policy agenda. Gas station operators who disagree with this political position will be forced to voice it unless they are willing to pay a significant price: under the Federal Carbon Tax Transparency Act 2019 (to be enacted in relation to budget approval), individuals are subject to fines of up to $500 per day for a first offence and up to $1,000 a for subsequent offences and corporations are subject to fines of $5,000 per day for a first offence and $10,000 per day for subsequent offences. These are significant penalties.

It could be argued that gas station operators could post their own stickers or put up their own signs, if permitted by an owner or franchisor, opposing the mandatory stickers. (There are different gas station ownership models.) The operators should not be expected to supplement the stickers with a correcting message that explains about the rebates or corrects the graph pictured on the stickers. Furthermore, doing so would seem to be inconsistent with the objective sought by the government’s requirement.

The stickers communicate a political message, one of several steps the provincial government is taking in opposition to the carbon tax. It is difficult to ignore that the stickers and their placement are designed to reflect the Ontario government’s political position and that they force gas station operators to place this political message on the gas pumps, regardless of their own views. (It is perhaps not irrelevant that if a business were to make a false or misleading representation, it would be subject to criminal or civil proceedings under the Competition Act.)

In addition to the gas station stickers, the provincial government has also imposed another political slogan on some drivers in Ontario. It has announced that it will be changing the commercial vehicle licence plate to “Open for Business”. “Open for Business” was a Progressive Conservative political slogan during the election campaign and it appears as a heading in the 2019 budget. Similar arguments can be made about the mandatory imposition of the government’s political slogan on drivers, as in the case of the mandatory anti-carbon tax stickers: while seemingly inoffensive, it results in drivers using the licence plate they paid for in the normal course as if they had adopted the government’s political slogan. It should be noted, too, that not only large commercial vehicles require commercial plates, but also trucks used as personal vehicles. It is true that the drivers have an alternative to the “Open for Business” plate by purchasing a personalized plate. A personalized plate costs $310. With respect to both the stickers and the licence plate, people are required to take additional action at some additional cost to avoid being carriers of the government political messages, whether they agree with them or not, or whether they simply object to having government impose their political views without an objectively factual basis.

Most freedom of expression cases involve government restriction on freedom of speech and these are treated seriously on the basis that the guarantee is one of the most important ways in which we realize democracy (although the meaning of the guarantee early expanded to cover commercial interests that have little to do with that objective in itself). Even more important, perhaps, is when government mandates expression that cannot be linked to the benefit of members of society, such as improving health, but instead reflects the political position of a political party that has gained power. In the case of the mandatory gas pump stickers, in particular, a lesson might be learned from the Social Credit government’s unsuccessful attempt in Alberta to require newspapers to print statements that in the government’s view ensured that their policies would be accurately presented, pursuant to the Publication of Accurate News and Information Bill. The Supreme Court held that requirement was ultra vires and contrary to free debate. While the situations are not the same (the Alberta case was concerned in part with whether the Bill was ultra vires the province as being criminal law, as it was found to be), and the use of gas pumps may not appear to be the equivalent of “confiscation of space” in newspapers (a term used by Cannon J. in the Supreme Court of Canada), the idea that the government may require individuals and companies to communicate its message, regardless of the beliefs of those subject to the requirement, subject to penalty, is anathema to the notion of a free society, whether it appears on a gas pump or on a licence plate.

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