MOKGORO J
Testing for Overbreadth as Part of the Limitations Analysis
[48]
Applicants’ overbreadth argument may present us with an opportunity to resolve the matter
before us today without following United States and Canadian courts into the formidably difficult
task of drawing lines between different kinds of sexually explicit speech, which is in any event
primarily the task of the legislature. Applicants argue that the definition of proscribed material
in the Act sweeps so widely that it unconstitutionally bans a great deal of incontestably
constitutionally protected expression. 84 If that is so, there is no need for this Court to demarcate
protected from unprotected sexually explicit speech, because whatever may be the legitimate scope
of government regulation of sexually explicit material, the challenged legislation can be struck as
being overbroad.
[49]
Overbreadth analysis is properly conducted in the course of application of the limitations
clause. To determine whether a law is overbroad, a court must consider the means used, (that is,
the law itself, properly interpreted), in relation to its constitutionally legitimate underlying
objectives. If the impact of the law is not proportionate with such objectives, that law may be
deemed overbroad. The Canadian case of Royal College of Dental Surgeons of Ontario v.
Rocket,85 offers an example of this analysis in the free expression setting. The Canadian Supreme
Court struck down as overbroad a ban on dentists’ advertising, using an analysis conducted under
the Canadian Charter’s limitation clause. The Court held that while there was no doubt a
legitimate government interest in preventing irresponsible and misleading advertising by dentists,
the blanket ban challenged also struck at legitimate advertising, with the result that the test of
84
Applicants also make the separate, but connected, argument, that the said definition is unconstitutionally vague.
For reasons that will become clear, it is not necessary to consider that head of Applicants’ argument.
85
[1990] 71 D.L.R. (4th) 68.
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