Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter

• Author: Chanakya Sethi
• Position: Is a JD candidate at Osgoode Hall Law School and a graduate of Princeton University
• Pages: 21-45

APPEAL VOLUM E 17

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AR T I C L E

BEYOND IRWIN TOY: A NEW APPROACH TO

FREEDOM OF EXPRESSION UNDER

THE CHARTER

By Chanakya Sethi*

CITED: (2012) 17 Appeal 21-45

INTRODUCTION

Not all expression is equally worthy of protection.1 Yet all expression is prima facie

constitutionally protected.2 ese t wo simple assertions—and the Supreme Court of

Canada’s struggle in re solving their inherent tension—are the subject of th is paper.

e text of the Canadian Charter of Rights and Freedoms leaves much open to interpretation.

Section 2(b) protects the “fre edom of thought, belief, opinion and expres sion, including

freedom of the press and other media of com munication.”3 e language, on its face,

is broad and without apparent def‌initional limit ations. As a result, picketing outside a

business,4 advertising to children,5 publishing details of a divorce proceeding,6 describing

Jews to school children as “sadist ic,” “power hungry” “child k illers,”7 soliciting one’s

services as a prostitute,8 denying the Holocaust in a pamphlet,9 f‌inancin g elec tion

advertisements,10 creating chi ld pornography,11 comparing a public personality to Hitler,

* Chanakya Sethi is a JD cand idate at Osgoode Hall Law School and a g raduate of Princeton

University. He was a law clerk to Just ice Dalveer Bhandari of the Supreme Cour t of India in the

summer of 2011 and will clerk for Justice Michael J Moldaver o f the Supreme Court of Canada

in 2012-13. He would like to thank Jamie Cameron and Chr istopher Bredt for inspiring and

encouraging this articl e and Appeal editor Mila Shah and the jour nal’s external reviewers for

their thoughtful sugg estions on how to improve it.

1. Edmonton Journal v Alber ta (AG), [1989] 2 SCR 1326 at para 50 (QL), 64 DLR (4th) 577, Wilson J

[Edmonton Journal]; Rocket v Royal Colle ge of Dental Surgeons of Ontario, [1990] 2 SCR 232 at para

28 (QL), 71 DLR (4th) 68 [Rocket]; and R v Keegstra, [1990] 3 SCR 697 at para 83 (QL), 61 CCC (3d) 1

[Keegstra].

2. Irwin Toy v Québec (AG), [1989] 1 SCR 927 at para 41 (QL), 58 DLR (4th) 577 (“Activity is expressive if

it attempts to convey meaning” ) [Irwin Toy]. The single exception to this general ru le, for reasons

that are less than clear, is violence. See RWDSU v Do lphin Delivery, [1986] 2 SCR 573 at para 20

(QL), 33 DLR (4th) 174 [Dolphin Delivery]. See als o note 51, below.

3. Canadian Charter of Rights and Freedoms , s 2(b), Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

4. Dolphin Delivery, supra note 2.

5. Irwin Toy, supra note 2.

6. Edmonton Journal, supra note 1.

7. Keegstra, supra note 1.

8. Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 SCR 1123 (QL), 56 CCC (3d) 65

[Prostitution Reference].

9. R v Zundel, [1992] 2 SCR 731(QL), 95 DLR (4th) 202 [Zundel].

10. Libman v Quebec (AG), [1997] 3 SCR 569, 151 DLR (4th) 385 [Libman]; Harper v Canada (AG), 2004

SCC 33, [2004] 1 SCR 827 [Harper].

11. R v Sharpe, 2001 SCC 2, [2001] 1 SCR 45 [Sharpe].

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APPEAL VOLU ME 17

the Ku Klux K lan and skinheads,12 and adver tising on the side of a transit bus,13 among

other things, have a ll been held to be protected means of expression under section 2(b).

e state can, however, seek to l imit e xpression. S ection 1 of the Charter permits

“such reasonable li mits prescribed by law as can be demonstrably justi f‌ied in a free and

democratic society.”14 Simi lar to the languag e used in section 2(b), t he c onstitutional

dictate in section 1 is broad, leaving much to be f‌illed in by those charged with interpreting

our law s. e resu lt, for exa mple, is t hat certain limits on advertising to children are

constitutionally acceptable,15 but others on the sides of transit buse s are not;16 denying

the Holocaust is permis sible,17 but calling al l Jewish people “child killers” is not.18

ese examples demonstrate that the Court has opted for a structure that def‌ines

expression very broadly, with a lmost every conceivable form of human expression prima

facie protected u nder section 2(b).19 e result is t hat section 2(b) is “l ittle more t han a

formal step,”20 leaving ef‌fectively all analysis to section 1. But at the same time, the Court

has imposed a single, high bar for justif‌ication under section 1. As a result, illegally

parking a car in order to make a point21 and distributing pornography depicti ng real

children22 are each considered forms of expression that—in theory—require a “pressing

and substantia l purpose” if they are to be constitut ionally limited .23 Unsurprisingly, the

Court h as thus stru ggled mightily in the two decades since its ea rly section 2(b) ca ses

to f‌ind meaningful way s to assess limits under sec tion 1. Its solutions to this dilemma

include the adoption of a “contextual approach” and “deference” to the legislative branch.

However, these solutions have often serve d to further muddy the jur isprudential waters

of section 2(b).

e overall result is a jurisprudence that, according to one schola r, is replete w ith

“contradictions and double standards,”24 is “capricious, and [is] a captive of inst incts

which shift from judge to judge, case to case, and issue to issue.”25 In this view, the myth of

a monolithic Oakes test under section 1 is belied by “case-by-case ma nipulation”26 where

the Court has “transformed section 1 review into an ad hoc exercise that exalts f‌lexibil ity

12. WIC Radio v Simpson, 2008 SCC 40, [2008] 2 SCR 420 [WIC Radio].

13. Greater Vancouver Transportation Authority v Canadian Federation o f Students, 2009 SCC 31, [2009]

2 SCR 295 [Translink].

14. Charter, supra note 3, s 1.

15. Irwin Toy, supra note 2.

16. Translink, supra note 13.

17 Zundel, supra note 9.

18. Keegstra, supra note 1.

19. See note 2, above and note 51, below.

20. Richard Moon, “Justied Limits o n Free Expression: The Collapse of the G eneral Approach to

Limits on Charter Right s” (2002) 40 Osgoode Hall LJ 337 at 339 [Moon, “Collapse of the G eneral

Approach”].

21. Irwin Toy, supra note 2 at para 41. As Peter Hogg has cheekily obser ved, “Fortunately, most

drivers are unaware of their cons titutional right to disregard parkin g restrictions of which they

disapprove.” Peter W Hogg, Constitutional Law o f Canada, student ed (Toronto: Carswell , 2009) at

987 n 55 [Hogg, Constitutional Law].

22. Sharpe, supra note 11.

23. See R v Oakes, [1986] 1 SCR 103 at 138-9, 26 DLR (4th) 200 [Oakes] (“It is necessary, at a minimum,

that an objective relate to conce rns which are pressing and substantial in a fr ee and democratic

society before it c an be characterized as suciently im portant”).

24. Jamie Cameron, “Governan ce and Anarchy in the s. 2(b) Jurisprudence: A Comment on

Vancouver Sun and Harper v. Canada” (2005) 17 NJCL 71 at 103 [Cameron, “Governance and

Anarchy”].

25. Ibid at 71.

26. Jamie Cameron, “Abstract Prin ciple v. Contextual Conceptions of Harm: A Comme nt on R. v.

Butler” (1992) 37 McGill LJ 1135 at 1147. See also Oakes, supra note 23.