Law Matters John Carpay
Advertising Standards Canada (ASC) tries to ban pro-life expression whenever it can. ASC is a non-government body composed of advertisers, large corporations, law firms, the CBC, Toronto Star, and Globe and Mail. ASC thinks it is qualified to determine what is “true, fair and accurate” when it comes to controversial issues like abortion. ASC rulings are technically non-binding. However, courts and municipalities refer to the Canadian Code of Advertising Standards to justify silencing pro-life speech, and other speech on matters of public interest and concern.
The latest ASC ruling denounces an ad by St. Catharines Right to Life stating, “Same person inside and out” with a background image of a pregnant woman beside a woman who is no longer pregnant and holding her baby.
An anonymous complaint filed with ASC claimed that “legally” the unborn child is not a person, therefore the St. Catharines Right to Life ad is “inaccurate.” On Feb. 13, ASC issued a final “ruling” that this pro-life ad is “inaccurate” because the unborn child is not a “person” as defined by the Criminal Code of Canada.
ASC, which has no legal qualifications or expertise, ignores the fact that the 1988 Supreme Court of Canada ruling in R. v. Morgentaler invited Parliament to introduce new legislation to protect the unborn. The Morgentaler ruling does not establish a constitutional right to abortion, and instead clearly recognized society’s interest in the protection of the unborn child. For ASC to suggest that there is legal clarity about whether the unborn child is a “person” is highly misleading.
Aside from the Morgentaler ruling, ASC is misguided in assuming that current law is the final and definitive test for establishing personhood. Following ASC’s logic, if an organization had run a newspaper advertisement in 1928 to promote the idea that women are persons, such ad would have been “inaccurate” because, legally, women were not “persons” at that time. It was not until 1929 that the Judicial Committee of the Privy Council overturned the Supreme Court of Canada and ruled that women are legally “persons.”
In 1857, the U.S. Supreme Court ruled in Dred Scott v Sandford that black slaves (and former slaves) were not “people” or “persons” under the U.S. Constitution or Declaration of Independence. Applying ASC’s logic to an American newspaper advertisement in 1858 that advocated for the human rights of blacks, ASC would have ruled that such ad was “inaccurate” because, legally, blacks were not persons.
Hopefully ASC thinks that women and blacks are persons. If so, then ASC needs to reject the idea that courts and parliaments have the sole and final authority to determine the truth about who is, and is not, a person.
The question of “personhood” depends on moral, scientific and philosophical considerations. To suggest that current laws determine truth, regardless of ethics, and biology, is to put the cart before the horse. Yet ASC believes passionately that the question of personhood should be left only to politicians and judges to determine what is true.
The ASC is irrational and biased when it denounces an ad expressing the view that an unborn child is a person, just because the Criminal Code (at this time) does not include a fetus in its definition of “person.” Through its influence with the courts, ASC effectively suppresses views and opinions that do not conform to current laws.
The Canadian Code of Advertising Standards states specifically that those “assessing the truthfulness and accuracy of a message” should not be concerned with the “precise legality” of the message. Yet ACS ignores its own Code by fixating exclusively on what the Criminal Code says about “persons,” ignoring biological and ethical considerations.
As stated by Justice Beverley McLachlin in R. v. Zundel, freedom of expression protects the expression of “beliefs which the majority regard as wrong or false.” Freedom of expression is utterly worthless if it extends only to stating what the majority agrees with, or if it extends only to opinions that support and agree with current laws.
Ironically, ASC refuses to denounce any advertising by political parties, claiming it does not want to “restrict the free expression of public opinion or ideas.” So political parties can freely ignore the Canadian Code of Advertising Standards, but ACS happily issues rulings against other organizations which promote viewpoints on issues of public concern. This is gutless and unprincipled.
