Attorney General of Quebec v. Kellogg's Co. of Canada

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Attorney General of Quebec v. Kellogg’s Co. of Canada, [1978] 2 S.C.R. 211 is a leading constitutional decision of the Supreme Court of Canada on the pre-Charter right to freedom of expression. The Quebec Consumer Protection Act, which prohibited advertising to children through cartoons, was challenged on the basis that it affected TV stations across the country. The Court held that the regulation of advertising is a matter within the authority of the province, and that the Act was valid law under the Property and Civil Rights power allocated to the province under section 92(13) of the Constitution Act, 1867.

[edit] Opinion of the Court

Justice Martland found that the pith and substance of the legislation was the regulation of advertising which he identified as a matter allocated to the provincial government under the property and civil rights power. He noted that the regulation of advertising and was also part of a larger provincial scheme of regulating business practices, all of which fell within the purview of the provincial government. The encroachment upon the regulation of broadcasting was found to only be incidental to the primary subject of adverstising, and so was valid.

Chief Justice Laskin, in dissent, disagree with Martland and argued that the regulation must be read down to exclude the regulation of expression. He pointed out how in McKay v. The Queen (1965) the provincial law regulating signs was read down to exclude the regulation of federal voting signs. Likewise, in Johannesson v. West St. Paul (1952) a provincial law that regulated the zoning of aerodromes was not valid as it encroached on federal power to regulate air transportation.