Smoke 'em if you got 'em.

Take that Steve

For a court that goes out of its way to stop Parliament from doing its job, it has certainly bent over backwards to defer to it in this particular instance, eh? Why didn't the court take this opportunity to (ahem) circumcise Joe Camel's nose?

As is always the case, I agree with the result, but am not impressed with how the Court got there. Call me Thomas J.

Expression is a tricky thing to minimally impair and is quite separate and apart from "Speech" though there is a strong link. This debate has changed significantly since the advent of the "defamation machine" known as the internet, but the distinction remains - s/he who has a press is welcome to use it to express whatever they think they should have the right to express.

Unless they are trying to sell cigarettes. There are tricky issues involved with this case - and it isn't only about limiting "speech" but also about forcing it.

Let me begin by saying that I do not believe that advertising constitutes expression or speech. The freedom of expression, in my admittedly narrow view, is limited to participating in the public discourse. Dentifrice, Dentifrice Dentifrice is NOT speech - any lawyer who advances this argument deserves to be disbarred for stupidity. I do not believe that I am out on a limb by saying that when cigarette ads are seen as free speech worth defending, we have to take a second look at the charter rights associated to speech.

Expression is a slightly different kettle of fish. The Falun Gong don't actually say anything, but use expression protection in Canada to do their mime routine, except THEY don't actually need the protection in Canada. Anti-abortionists walk around with placards and don't exactly harass us, but their pictures are gross. Expression can be dance, it can be art, it can be used for a commercial purpose - but I think it is a stretch to say that advertising is a form of expression in and of itself - it is an expression with a purpose which is not necessarily in the public interest. And that is the bright line test for me.

Ironically, some advertising with a specified political purpose constitute speech and expression, and even constitute (depending on the cost) peaceable assembly & association. We have lots of unconstitutional laws (in my view) that limit this type of speech. If, however, it is OK to limit political speech, expression, association and peaceable assembly (as the Elections Act and Bryan decision does) by all means, regulate the fuck out of the cigarette and booze industry for all of the above. But, why stop there?

I agree wholeheartedly with clearly expressed limits on the freedom of speech - there are some things so awful that simply uttering them should be punishable by death - or at least, very strict fines. As long as the rule is "You can't say X." That is what the current Tobacco Act says. Yay for laws.

I get uncomfortable is when Parliament starts telling people they have to express something - forced expression - when that expression is itself a political message. I am an ex-smoker- I get the need for strong warnings - but to say that you are forced to put disgusting pictures on your product is going to far. I would rather that smokers be forced to sign a complicated waiver each time they bought cigarettes then be exposed to these pictures. There is the rub - kids today actually think they are cool! I used to try and collect the various packages like trading cards. They are so pervasive to people who have already made the decision to smoke that they are now lacking in effect and are not inconvenient in any way.

And not surprisingly, this is where the Court lost me - in doing their analysis - they look to pressing and substantial, and minimal impairment, but they glazed over rationally connected to the pressing and substantial objective. For five of the six questions, my analysis would have ended at "is it speech?" For the last one, I could be convinced that the law should be struck down.

Of course, I would have written a one page dissent in part- only to agree with the result.