Irwin Toy Ltd. v. Quebec (Attorney General)
Encyclopedia
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada
decision on freedom of expression in section 2(b)
of the Canadian Charter of Rights and Freedoms
. The court held that in order to determine if a breach of section 2(b) had occurred one first had to determine whether the conduct constituted non violent activity which attempted to convey meaning. This changed the law of the constitution of Quebec. The next step was to consider whether the effect or purpose of the legislation was to restrict freedom of expression. Applying the analysis, the Court held that a Quebec law that restricted advertising directed to children was valid law which violated section 2(b) but could be justified under section 1
.
, Justice Lamer
, and Justice Wilson
wrote the decision of the majority.
The Justices then considered the scope of expression. They defined it broadly as any activity that "attempts to convey meaning". However, it excluded nonsensical activities that are "purely physical and [do] not convey or attempt to convey meaning" as well as activities that are of a violent form.
The majority re-affirmed the decision of Ford v. Quebec (1988) by finding that freedom of expression included advertising. Accordingly, they found that the Quebec law violated section 2(b).
On the inquiry into minimal impairment the Court held that when the government attempts to justify the necessity of a complete ban, courts will not be restrictive to social sciences, however, the government must establish a “sound evidentiary basis” for their conclusions.
The Court was unsympathetic to the harm to Irwin. The effects of the ban, said the Court, were not so severe as to override the objective of the ban. The advertisers would always be able to direct ads to adults or use other means to sell children’s products.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision on freedom of expression in section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The court held that in order to determine if a breach of section 2(b) had occurred one first had to determine whether the conduct constituted non violent activity which attempted to convey meaning. This changed the law of the constitution of Quebec. The next step was to consider whether the effect or purpose of the legislation was to restrict freedom of expression. Applying the analysis, the Court held that a Quebec law that restricted advertising directed to children was valid law which violated section 2(b) but could be justified under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
.
Background
The province of Quebec passed legislation that prohibited "commercial advertising directed at persons under thirteen years of age". The law was challenged on the basis that it violated the freedom of expression under section 2(b) of the Charter.Reasons of the court
Chief Justice DicksonBrian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, Justice Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, and Justice Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
wrote the decision of the majority.
Expression
The Justices considered the rationale of the freedom of expression provision and enumerated three grounds:- seeking and attaining the truth is an inherently good activity;
- participation in social and political decision-making is to be fostered and encouraged; and
- the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.
The Justices then considered the scope of expression. They defined it broadly as any activity that "attempts to convey meaning". However, it excluded nonsensical activities that are "purely physical and [do] not convey or attempt to convey meaning" as well as activities that are of a violent form.
The majority re-affirmed the decision of Ford v. Quebec (1988) by finding that freedom of expression included advertising. Accordingly, they found that the Quebec law violated section 2(b).
Justified limitation
The Justices then considered whether the law was justified under section 1. They dismissed the argument that the law was not prescribed by law. A law only needed to have an "intelligible standard" which the Quebec law satisfied.On the inquiry into minimal impairment the Court held that when the government attempts to justify the necessity of a complete ban, courts will not be restrictive to social sciences, however, the government must establish a “sound evidentiary basis” for their conclusions.
The Court was unsympathetic to the harm to Irwin. The effects of the ban, said the Court, were not so severe as to override the objective of the ban. The advertisers would always be able to direct ads to adults or use other means to sell children’s products.