| Irwin Toy Ltd. v. Quebec (Attorney General) | |||||||||
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| Hearing: November 19–20, 1987 Judgment: Decided April 27, 1989 |
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| Court membership | |||||||||
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Chief Justice: Brian Dickson |
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| Reasons given | |||||||||
| Majority by: Dickson C.J. and Lamer and Wilson JJ. Dissent by: McIntyre J. Joined by: Beetz J. Estey J. took no part in the consideration or decision of the case. |
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| Laws applied | |||||||||
| Attorney General of Quebec v. Kellogg's Co. of Canada, (1978); R. v. Oakes, (1986); Ford v. Quebec (Attorney General), (1988); Devine v. Quebec (Attorney General), (1988); R. v. Big M Drug Mart Ltd., (1985) | |||||||||
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.
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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.
Chief Justice Dickson, Justice Lamer, and Justice Wilson wrote the decision of the majority.
The Justices considered the rationale of the freedom of expression provision and enumerated three grounds:[1]
The Justices then considered the scope of expression. They defined it broadly as any activity that "attempts to convey meaning".[2] However, it excluded nonsensical activities that are "purely physical and [do] not convey or attempt to convey meaning"[3] as well as activities that are of a violent form.[4]
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).
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.[5]
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.