Advertising and the Charter: Just Do It? An Analysis of the Constitutional Recognition of Commercial Expression
Bibliographic record
Abstract
One area of Charter jurisprudence which has developed a particularly high level of controversy is the recognition of "commercial expression" as falling under the purview of "freedom of expression" and thereby deserving of s. 2(b) Charter protection. The source of this controversy relates to the nature of both the Charter's guarantees and of commercial expression. The Charter is the supreme law of Canada and the main source of our constitutionally guaranteed rights and freedoms. Commercial expression is that expression having the sale of a good or service as its purpose. Commercial expression is, simply put, advertising. Many people no doubt feel a certain level of discomfort affording advertising for breakfast cereal the same level of constitutional protection as political speech. Despite this common sensical antipathy toward commercial expression, the Supreme Court of Canada has firmly entrenched commercial expression as being within the purview of section 2(b) of the Charter. This paper will demonstrate why commercial expression should not be afforded section 2(b) protection under the Charter. The Supreme Court, in granting commercial expression constitutional recognition, relied on a series of justifications. Upon closer analysis, these justifications in fact lead to the conclusion that commercial expression should be denied section 2(b) protection. The reasons given by the Supreme Court support the constitutional recognition of commercial expression in theory only, and not in practice. The jurisprudential framework of the Supreme Court in deciding these issues is a predominantly liberal one. In addition, the court uses economic justifications for granting commercial expression constitutional recognition. For these reasons this paper will use liberal and law and economic analyses to challenge the conclusions reached by the Supreme Court. Rather than demonstrate that the Court's conclusions can be challenged by alternative legal philosophies (for example, Critical Legal Studies or feminism), this paper proposes to show that the Supreme Court's conclusions can be challenged from within the very same framework(s) used by the Court.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.013 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.012 | 0.045 |
| Scholarly communication | 0.017 | 0.009 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.008 | 0.011 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".