Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 92: Commercial advertising directed at persons under thirteen years of age -- protected sphere of conduct -- whether the purpose or effect of the government action in issue was to restrict freedom of expression -- restricting content --government's purpose direct harmful physical consequences -- meaning of the activity or the purported influence that meaning has on the behaviour of others
In November 1980, the respondent sought a declaration from the Superior Court that ss. 248 and 249 of the ConsumerProtection Act, R.S.Q., c. P-40.1, which prohibited commercial advertising directed at persons under (page 929) thirteen years of age, were ultra vires the Quebec legislature and, subsidiarily, that they infringed the Quebec Charter of Human Rights and Freedoms. The Superior Court dismissed the action. On appeal, the respondent also invoked the Canadian Charter of Rights and Freedoms which entered into force after the judgment of the Superior Court. The Court of Appeal allowed the appeal holding that the challenged provisions infringed s. 2(b) of the Canadian Charter and that the limit imposed on freedom of expression by ss. 248 and 249 was not justified under s. 1. This appeal is to determine (1) whether ss. 248 and 249 are ultra vires the Quebec legislature or rendered inoperative by conflict with s. 3 of Broadcasting Act, R.S.C. 1970, c. B-11; (2) whether they are protected from the application of the Canadian Charter by a valid and subsisting override provision; (3) whether they infringe s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter; and if so, (4) whether the limit imposed by ss. 248 and 249 is justifiable under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter; and (5) whether they infringed s. 7 of the Canadian Charter. Held (Beetz and McIntyre JJ. dissenting): The appeal should be allowed.
(3) Freedom of Expression
Per Dickson C.J. and Lamer and Wilson JJ.: When faced with an alleged violation of the guarantee of freedom of expression, the first step is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression. To make (page 932) this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. Here, respondent's activity is not excluded from the sphere of conduct protected by freedom of expression. The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respecting the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children. These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.
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