Playing with Irwin Toy

Here’s something that might be obvious to people with good memories, or those immersed into the Supreme Court’s freedom of expression jurisprudence, but which, I confess, surprised me when I recently re-read two of the foundational cases of that jurisprudence, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, and R. v. Keegstra, [1990] 3 S.C.R. 697.

I did remember, as I’m sure any constitutional law junkie does, what we have come to know as, to borrow Justice Rothstein’s phrase in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, as “the values underlying freedom of expression first recognized in Irwin Toy” [65]. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, Chief Justice McLachlin summarized these values as “individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy” [23]. Their original statement, in Irwin Toy, was more elaborate. In their joint reasons, Chief Justice Dickson and Justices Lamer and Wilson wrote:

[T]he principles and values underlying the vigilant protection of free expression in a society such as ours … can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) 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. (976)

This original statement has, I think, largely been forgotten, though perhaps we haven’t lost anything with the Chief Justice’s pithier summary or variations thereon. That’s not so important now. What I find more interesting is that we, or I at any rate, have also forgotten the context in which this statement occurs.

In Irwin Toy, as in other early Charter cases going back to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, the Court analyzed infringements of Charter rights by the object of a statute and those by the statute’s effects separately. (This distinction seems to have mostly fallen by the wayside at some point which I am too lazy at the moment to ascertain, although it was resurrected, with unfortunate effect in my view, in the Ontario Court of Appeal’s citizenship oath decision,  McAteer v. Canada (Attorney General), 2014 ONCA 578.) In Irwin Toy, the Court found that the statute at issue infringed the freedom of expression by its object, since it was meant to prohibit the diffusion of a type of messages based on their meaning (specifically, it prohibited advertisements aimed at children). Nevertheless, presumably in an effort to provide guidance to lower courts, the majority opinion went on to discuss the circumstances in which a law that does aim at infringing freedom of expression will nevertheless have that effect. It is in this extended obtier that the statement of the “values underlying the vigilant protection of the freedom of expression” appears: the majority explains that

[i]n showing that the effect of the government’s action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. (976)

But to repeat, this is only necessary if the impugned law does not have the purpose of restricting or suppressing expression based on its content.

Fast forward… less than two years, to Keegstra, where the role of the three values changes quite dramatically. Chief Justice Dickson ― one of the co-authors of the Irwin Toy opinion ― sets the scene by stating that

one’s conception of the freedom of expression provides a crucial backdrop to anys. 2(b) inquiry; the values promoted by the freedom help not only to define the ambit of s. 2(b), but also come to the forefront when discussing how competing interests might co-exist with the freedom under s. 1 of the Charter. (726)

And indeed it is (almost?) exclusively in the s. 1 analysis that the “values promoted by the freedom” of expression are relevant, in the Chief Justice’s opinion. These values, though, are the same three described in the Irwin Toy obiter as part of the infringement-by-the-effects-of-legislation test. In Keegstra, they become something very different ― namely, a sort of yardstick by which the worth of the expression restricted by the government, and thus the ease with which the government will be able to justify the restriction are to be appraised. Chief Justice Dickson explains that

the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b). (760)

The closer the connection between the restricted expression and one (or more) of the Irwin Toy values, the more difficult it is for the government to justify the restriction.

That’s the theory, anyway, because this approach introduces an uncertain sliding scale, rather than anything like an American-style hierarchy of “levels of scrutiny.” Still, it is unusual in the Supreme Court’s Charter jurisprudence, which doesn’t ask whether, say, a religious activity is closer to or further from the values protected by freedom of religion, or whether some aspects of the right to the security of the person are more important than others. I don’t think there’s anything conceptually impossible about such inquiries, though it’s pretty clear that they would be difficult and quite subjective. But then again, aren’t those that happen under s. 2(b)?

Anyway, I don’t know if there’s a deeper point to the foregoing. I just thought it interesting how a test articulated in one context could, within a very short time and under the pen of the same judge, migrate to a rather different one and take on a much more important role than seems to have been envisioned for it. The stuff that gets you going when you’re a constitutional law junkie…

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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