The Original Conception of Section 1 and its Demise:
A Comment on Irwin Toy Ltd v. Attorney-General of Quebec
Jamie Cameron*
The author submits that the logic and purpose
of the Canadian Charter of Rights and
Freedoms, as it was originally conceived,
demand that the substantive rights be given a
broad and literal interpretation, with limita-
tions imposed exclusively under section 1.
This distinction between breach and justifica-
tion must be maintained to preserve the
Charter’s integrity. The author suggests that
the Supreme Court of Canada’s decision in
Irwin Toy will only perpetuate the confusion
surrounding Charter interpretation. The Court
again failed to articulate a concrete conception
of section 1 review, and, in obiter dicta, noted
that forms of expressive activity having phys-
ical consequences were not expression under
s.2(b). The incorporation of justificatory crite-
ria in defining the scope of the right doctrina-
lizes the choices which the Court would other-
wise have to make openly under section 1. The
author concludes that only a return to the orig-
inal conception of the Charter can salvage its
uniquely Canadian balance between individual
and collective values. Such a reinterpretation
entails the reform of the rigid Oakes test to
allow for diverse standards of justification.
L’auteur soutient que ]a logique interne de la
Charte canadienne des droits et liberts et le
but qu’elle doit poursuivre ne permettent pas
une limitation des droits substantifs par une
approche dbfinitionnelle. Une interprdtation
large et litt6rale doit 8tre donnde et des limites
peuvent etre imposres uniquement sous l’arti-
cle 1. L’intrgrit6 de la Charte force le maintien
d’une distinction entre l’atteinte hL un droit et ]a
justification de celle-ci. D’apr~s l’auteur, la
decision de la Cour supreme dans Irwin Toy c.
P.G. Quibec maintient la confusion entourant
l’interprdtation de la Charte. La Cour n’61a-
bore pas une approche concr~te de la revision
judiciaire permise sous l’article 1 et, en obiter
dicta, note que l’expression donnant lieu A des
consdquences physiques n’est pas protbgde
sous l’ar. 2(b). L’application de crit~res de jus-
tification ii la definition du droit supplante
l’analyse de la Cour sous l’article 1. L’auteur
conclut que seul un retour
la conception ori-
ginale de la Charte peut sauvegarder l’quili-
bre canadien distinct entre les valeurs indivi-
duelles
telle
rdinterprtation exige un assouplissement du
test Oakes afin de permettre divers standards
justificatifs.
collectives.
et
Une
*Associate Professor, Osgoode Hall Law School. I would like to thank Evan Siddall for his
research assistance.
McGill Law Journal 1989
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 35
Synopsis
Introduction
I.
II.
The Original Conception of Section 1
A. The Logic and Purpose of Section 1
B. The Dilemma of the Text
Introduction
Irwin Toy Ltd v. Attorney-General of Quebec
A.
B. Defining “Expression”
C. Purpose and Effect
Conclusion
Introduction
Section 1 of the Canadian Charter of Rights and Freedoms’ remains as
important and mysterious today as it was in 1982.2 A limitations clause was
included in Canada’s Charter of Rights and Freedoms because a similar provi-
sion does not exist in the American Bill of Rights.’ Ironically, section l’s pres-
ence has created interpretive dilemmas that may ultimately be as irresolvable as
those caused by its absence from the U.S. Constitution. The Charter’s bifurca-
tion of rights and limitations has already complicated the task of defining the
substantive guarantees. Until recently, one unsolved mystery was whether those
rights could be restricted as a matter of definition, or whether limitations should
be imposed exclusively under section 1.
IPart I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter the Charter].
2W. Conklin, “Interpreting and Applying the Limitations Clause: An Analysis of Section 1”
(1982) 4 Sup. Ct L. Rev. 75.
3See H. Marx, “Entrenchment, Limitations and Non-Obstante” in W.S. Tamopolsky & G.-A.
Beaudoin, eds, Commentary: The Canadian Charter of Rights and Freedoms (Toronto: Carswell,
1982) at 63-66; and A. Bayefsky, “Defining Equality Rights” in A.F. Bayefsky & M. Eberts, eds.,
Equality Rights and The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) at
73-78 (tracing the origins of section 1 in international human rights covenants).
1989]
COMMENTS
Twice this year the Supreme Court of Canada has addressed that issue.
First, Law Society of British Columbia v. Andrews gave s.15’s guarantee of
equality a definitional interpretation.4 Then Irwin Toy Ltd v. A.G. Quebec lim-
ited the scope of expressive freedom under s.2(b)., In rejecting a literal defini-
tion of “equality”, Andrews explicitly considered the relationship between the
concepts of breach and justification.6 However, only a few months later, in Irwin
Toy, the Court failed to explain why limitations on the scope of s.2(b) were
appropriate.’ Having rejected a prima facie concept of breach in Andrews, the
Supreme Court of Canada might have assumed that consistency required a non-
literal or definitional interpretation of s.2(b)., Though it could have invoked that
argument, or otherwise advanced a substantive theory of expressive freedom, it
did neither. Instead, the Court adopted a complex and overlapping set of prin-
ciples to define “freedom of expression”. The difficulty is that these principles
are not based on any theory of the relationship between breach and justification,
or of expressive freedom as a substantive concept.
This Comment argues that the decision in hwin Toy compromises the
structural integrity of the Charter. As a matter of textual logic, the purpose of
the substantive provisions is to guarantee individual rights, and that of section
1 to measure those entitlements against the claims of the community. Under
such a scheme, democratic values should be irrelevant in defining the scope of
the guarantees. Despite this logic, the momentum in favour of definitional lim-
itations has blurred the concepts of breach and justification. This pattern of
4[1989] 1 S.C.R. 143 at 178-82, [1989] 2 W.W.R. 289 [hereinafter Andrews cited to S.C.R.].
Dickson C.J. and Lamer, Wilson, and L’Heureux-Dub6 JJ., joined Justice McIntyre’s majority
opinion rejecting a literal interpretation of s. 15. Instead, the Court limited the scope of s. 15 to
the enumerated categories and other classifications based on similar kinds of personal
characteristics.
1[1989] 1 S.C.R. 927, 58 D,L.R. (4th) 577 (per Dickson C.J., Lamer and Wilson JJ.; McIntyre
and Beetz JJ. dissenting) [hereinafter Irwin Toy cited to S.C.R.].
6Justice McIntyre rejected a literal interpretation because “it virtually denies any role for
s.15(1).” Supra, note 4 at 181. Similarly, he declined to follow the B.C. Court of Appeal’s defi-
nitional approach because its focus on the reasonableness of the classification meant that “virtually
no role would be left for s.l.” Ibid. at 182. While conceding that it may be difficult to determine
the relationship between s.15 and section 1 on “a wholly satisfactory basis”, he advanced a textual
justification for his definition of equality by characterizing “without discrimination” as the govern-
ing substantive concept of s.15. Ibid. at 178.
7Although a textual rationalization was available for s.15, the wording of s.2(b) does not as read-
ily suggest definitional restrictions. In such circumstances, Irwin Toy’s interpretation of s.2(b)
rested primarily on the statement that “[c]learly, not all activity is protected by freedom of expres-
sion”. Supra, note 5 at 967.
S1n Andrews, supra, note 4, Justice LaForest’s concurring opinion raised questions about the con-
sistent interpretation of the substantive guarantees. Specifically, he suggested that it might be “out
of keeping with the broad and generous approach given to other Charter rights”, such as s.7, to
adopt a restrictive interpretation of s.15. In concurring on the question of breach, he specifically
reserved his views about the scope of s.15. Ibid. at 193. Justice LaForest was not a member of the
panel which heard Irwin Toy.
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interpretation recently culminated in an interpretation of s.2(b) based partly on
justificatory criteria.9
The first part of this Comment analyzes the text of the Charter, with par-
ticular emphasis on its separation of the individual rights from their permissible
limitations. The logic of section 1, or the “original conception”, as it is referred
to in this paper is first examined and it is then suggested that a scheme appears
to be structurally and analytically logical is, in fact, profoundly ambivalent.
Having outlined the interpretive dilemma posed by the text, the section con-
cludes with some observations on the Supreme Court of Canada’s early juris-
prudence. It suggests that, by reinforcing the ambivalence of the text, these deci-
sions have perpetuated the ideological vacuum in which the Charter was
enacted.
The text’s separation of the substantive rights and their permissible limita-
tions is one manifestation of a deep-seated equivocation about the Charter’s
purposes.” In exploring the relationship between breach and justification, this
Comment tests two assumptions which have gained a foothold, both explicitly
and implicitly, in the jurisprudence. One is an instinct that retreat from the orig-
inal conception of section 1 is unavoidable;” and the other is the related view
that definitional limitations are as sound as they are imperative.’ 2 Though both
are in tension with the structural logic of the Charter, each is evident in a juris-
prudence which wavers between individual rights and democratic values. The
Supreme Court of Canada simultaneously embraces generous and restrictive
conceptions of the substantive rights, 3 as well as strict and deferential applica-
9By defining expression as “the attempt to convey meaning”, infra, note 56, Irwin Toy initially
appeared to adopt a literal interpretation of the guarantee. This Comment demonstrates that further
criteria which exclude certain expressive activity from s.2(b) encroach on the justificatory function
of section 1.
I0The tension inherent in this bifurcation is a more subtle reflection of the contradiction between
the Charter’s entrenchment of individual rights and its provision for a legislative override.
“In Edwards Books and Art Ltd v. R., [1986] 2 S.C.R. 713 at 768-69, 71 N.R. 161 [hereinafter
Edwards Books cited to S.C.R.], the Court cautioned against “rigid and inflexible” section 1
review. Similarly, two members of the Court rejected a monolithic application of R. v. Oakes,
[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.], in Andrews, supra,
note 4 at 154, per Wilson J. and 184-85, per McIntyre J. More recently, Justice LaForest denounced
a mechanistic approach to section t in United States v. Cotroni, [1989] 1 S.C.R. 1469 at 1489. To
the extent that Oakes represents the original conception, the Court has mixed feelings about it.
12Andrews and Irwin Toy provided the first real tests of the original conception of section 1 and
the structural logic of the Charter. Significantly, both followed the momentum in favour of a def-
initional, or non-literal interpretation. Without assessing the Court’s definition of equality, this
Comment focusses on the assumption that limitations on the scope of s.2(b) are appropriate.
13Although the Court repeatedly invokes the purposive approach, infra, note 45, it limited the
scope of section 2 in Retail, Wholesale and Dept Store Union v. Dolphin Delivery Ltd, [1986] 2
S.C.R. 573, 1 W.W.R. 577, 9 B.C.L.R. (2d) 273, 33 D.L.R. (4th) 174 [hereinafter Dolphin Delivery
cited to S.C.R.] and the Labour Trilogy, infra, note 47. More recently, compare Ford v. A.G.
Quebec, [1988] 2 S.C.R. 712 at 766, 54 D.L.R. (4th) 577 [hereinafter Ford cited to S.C.R.] (stating
19891
CHRONIQUE DE JURISPRUDENCE
tions of the Oakes test. 4 Curiously, in struggling with difficult issues of inter-
pretation and institutional responsibility, the Court has ignored the purpose of
the Charter’s bifurcated scheme.
The second part of the Comment analyzes the viability of definitional lim-
itations on s.2(b) through a critique of Irwin Toy Ltd v. A.G. Quebec. It estab-
lishes that the restrictions which this decision places on the scope of the sub-
stantive guarantee compromise the original conception of section 1. By
introducing justificatory concepts into the definition of expressive freedom,
Irwin Toy has made it virtually impossible to maintain any analytical distinction
between the scope of the right and its permissible limitations. In such circum-
stances, doctrinal confusion is inevitable. However, more troubling than the
Court’s elusive definition of expression is its failure to recognize that breach
and justification are distinct concepts. Although elements of Irwin Toy’s defimi-
tion of expression reflect a cultural instinct that freedom cannot be absolute, the
decision’s implications for constitutional interpretation are far-reaching. By
undercutting section 1, Irwin Toy compromises the Charter’s structural integ-
rity. In light of these conclusions, a final section proposes a literal interpretation
of s.2(b), a return to the original conception of section 1, and a reform of the
Oakes test. 5
I. The Original Conception of Section 1
A. The Logic and Purpose of Section 1
The original conception of section 1 is both logical and democratic. At the
outset, the Charter’s limitations clause was ballyhooed as its distinguishing fea-
ture and the hallmark of its textual superiority over the U.S. Bill of Rights. By
guaranteeing individual rights and refusing to provide for their limitation, the
American Constitution created an impossible contradiction. 6 The Charter
that “[i]t is within the perimeters of s.1 that courts will in most instances weigh competing values
in order to determine which should prevail”) and Irwin Toy, supra, note 7 (declaring that s.2(b)
does not protect all expressive activity).
141n addition to emerging doubts about the universality of the Oakes test, supra, note 11, the
Court also applies its criteria selectively to produce different results in seemingly analogous cases.
The Sunday closing cases, R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321
[hereinafter Big M cited to S.C.R.] and Edwards Books, supra, note 11, remain the best examples
of this.
15A second paper undertakes a comprehensive review of the relationship between s.2(b) and s.1,
ultimately advancing a proposal for the modification of Oakes in all s.2(b) cases. This paper is
titled “Rights and Their Limitations: Section 2(b), the First Amendment and the Future of Oakes”
[hereinafter Cameron] and is tentatively scheduled for publication in the first issue of a new journal
provisionally called The Media and Communications Law Journal.
16The contradiction is that, as a matter of practical reality, collective life and an atomistic con-
ception of the individual cannot co-exist. By guaranteeing absolute rights, the American Bill of
McGILL LAW JOURNAL
[Vol. 35
addressed that flaw with unassailable logic: self-contained provisions guarantee
the substantive rights and a limitations clause determines what restrictions on
those rights are consistent with democratic values.17 The structure of the
Charter, and section 1 in particular, precluded any fiction of absolute rights.
Not only is section 1 logical, it is democratic as well: textual primacy
makes the concept of justification the Charter’s fundamental organizing princi-
ple. As American experience demonstrates, the hierarchy of values created by
the Constitution is important. The ideological and symbolic significance of the
first amendment’s absolute guarantee of expressive freedom was immortalized
by Justice Cardozo’s description of free speech as “the matrix, the indispensable
condition, of nearly every other form of freedom”.”8 Just as the first amendment
is one of America’s cherished symbols of freedom, section 1 is Canada’s state-
ment of attachment to the values of parliamentary democracy. By expressly sub-
jecting individual rights to the legislature’s social and political judgment, the
concept of reasonable limits weakened the argument that the Charter exalted
individualism at the expense of collective values.’ 9
Along with its symbolic and ideological importance, section 1 also gener-
ated a set of doctrinal expectations. Canadian commentators initially believed
that the text of the Charter had cured the interpretive dilemmas caused by the
American Bill of Rights’ rigid presumption in favour of individual liberty.
Because the Constitution does not acknowledge the legitimacy of the state’s
claim, the U.S. judiciary was forced to treat restrictions on rights as discrete,
isolated exceptions.” In such circumstances, a coherent theory of justification
was impossible. Instead, through a slow and uneven pattern of evolution, a wide
Rights does not acknowledge that the requirements of social organization must also be
accommodated.
7Some of the Charter’s guarantees contain qualifying language. See, for example, s.6 (permit-
ting restrictions on mobility rights); s.8 (prohibiting searches which are unreasonable); s.9 (guar-
anteeing the right not to be arbitrarily detained or imprisoned); s.1 I (establishing a variety of stand-
ards of fairness in the criminal justice system); s.12 (prohibiting punishment which is cruel and
unusual); s.15(2) (qualifying s.15(1)); and s.23 (making minority language education contingent on
sufficient numbers). Even though the relationship between breach and justification is complicated
by the presence of qualifying language, the definitional issue does not displace section 1 review.
Moreover, guarantees such as ss. 2 and 15, which are cast in broad open-ended terms, are tailor-
made for the original conception.
‘sPalko v. Connecticut, 302 U.S. 319 at 327 (1937). This statement introduced the “preferred
freedoms” theory, which the U.S. Supreme Court invoked throughout the 1940s to justify a double
standard of adjudication which gave “civil” liberties active protection while deferring to the leg-
islatures on questions of socio-economic regulation.
19While the Charter endures, this argument will be as perpetual as it is inevitable. Section 1 was
never intended as a cure; only as a palliative.
20The U.S. Constitution does not guarantee all rights absolutely. For example, the fourth amend-
ment only prohibits unreasonable search and seizure and others, such as the fifth, only guarantee
due process or just compensation. The eight amendment prohibits punishment that is cruel and
unusual.
1989]
COMMENTS
array of disconnected doctrines emerged. Without a limitations clause, the
American judiciary could only address the permissibility of restrictions on indi-
vidual rights on an ad hoc, issue-specific basis.21
Under the Charter, it appeared that the Canadian judiciary might avoid
such contortions. First, by separating the individual’s prima facie entitlements
from the limitations on freedom which are inevitable in collective life, the
Charter’s bifurcated scheme obviated the need for doctrinal subterfuge.’ In the-
ory, Canada could avoid the institutional awkwardness of American doctrines
which argue, among other things, that certain types of speech are not “speech'”.1
Such unconvincing interpretations would be unnecessary under the Charter
because section 1 makes restrictions on the rights redundant.24 Second, by legit-
imizing limitations on individual liberty, section 1 would enable the Canadian
judiciary to discuss the issue of justification openly, pursuant to an express man-
date to balance the competing demands of individual freedom and social orga-
nization.” Once again, the Canadian concept of reasonable limits would resolve
the American dilemma of rationalizing limitations which the constitutional text
does not contemplate. Initially, therefore, the optimism that section 1 realism
would replace the formalism of U.S. doctrine was not wholly misplaced.26
supra, note 15.
21For a comprehensive analysis of the evolution of first amendment doctrine, see Cameron,
22See, for example, P. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1985) at 715
(stating that because the American Bill of Rights contains no limitation clause like section 1 of the
Canadian Charter, “American courts have had difficulty in supplying principled justification for
upholding laws that restrict speech….”); and M. Manning, Rights, Freedoms and the Courts: A
Practical Analysis of the Constitution Act, 1982 (Toronto: Emond-Montgomery, 1983) at 155 (con-
cluding that if the Bill of Rights had a section similar to section 1, the court would not have had
to stretch the concept of due process).
not “speech” for purposes of the first amendment).
23See, for example, Roth v. United States, 354 U.S. 476 (1957) (holding that obscene speech is
24See Soenen v. Director of the Edmonton Remand Centre (1983), 28 Alta L.R. (2d) 62 at 76,
48 A.R. 31 at 38 (Q.B.) (asserting that any balancing of individual interests against those of the
collectivity only comes into play under section 1); Re Service Employees’ Int’l Union, Local 204
(1983), 44 O.R. (2d) 392 at 465 (H.C.) (stating that any conclusion that Charter rights and free-
doms are anything but absolute would render section 1 redundant); D. Gibson, The Law of the
Charter: General Principles (Toronto: Carswell, 1986) at 140 (rejecting any internal balancing
through definitions of the rights, except in the case of s.15); and Manning, supra, note 22 at 195
(stating that s.2 rights are “cast in an absolute form” and “are subject only to the limits allowed
by operation of section 1”).
2See Gibson, ibid. at 134 (claiming that “the forthright consideration by judges of the reason-
ableness and justifiability … of particular limits … seems likely to produce a more consistent and
fully informed body of rights restrictions than that which has emerged from the more indirect def-
initional exercises in which American courts have had to engage because of the absence of an
explicit limitation clause”).
26See, Gibson, ibid. (stating that section 1 has had “beneficial effects” because its open acknowl-
edgment of reasonable limits has given the Canadian public a “more realistic appreciation of the
significance of constitutional guarantees than it once had” (emphasis added)); and T. Christian,
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[Vol. 35
Finally, by implying a single standard of justification,27 section 1 suggested
a further improvement on American constitutional jurisprudence. The Canadian
courts could apply s.l’s neutral and universal criterion of “reasonable limita-
tions in a free and democratic society” the same way in every case. Not only
is the U.S. doctrine a confusing jumble, articulating almost as many tests as
there are issues to decide, its justificatory analysis is implicit at best and rarely
explicit.’ Given a body of American jurisprudence that appeared arbitrary,
expedient and needlessly complex, section 1 made an objective and egalitarian
approach to rights feasible in Canada.
B. The Dilemma of the Text
At stake in defining the relationship between the substantive rights and
their permissible limitations are alternative conceptions of the Charter. At the
level of statutory construction, the issue is out of choosing between a defini-
tional and a literal interpretation. A definitional interpretation would limit the
scope of the guarantee itself; instead of presuming that interference with expres-
sive freedom violates s.2(b), this approach would place a burden on the individ-
ual to establish that the claim invokes values that are protected by the Charter.
By contrast, a literal interpretation would reject a narrow conception of the
guarantees in favour of a justificatory approach. This alternative would presume
the breach whenever there is an interference with individual liberty and oblige
the state to establish the permissibility of any limitations under section 1.
However, in deciding whether to read the substantive provisions literally
or not, more is at stake than a question of statutory construction or evidentiary
burden. A definitional conception focuses on “entitlements”, or the legitimacy
of the individual’s right to claim the Constitution’s protection, while a literal
interpretation focuses on “exceptions”, or the justifiability of any state interfer-
ence with individual liberty. Thus a definitional conception of the rights
assumes that the guarantees are themselves qualified by political, social and cul-
tural values. On this view, hate propaganda might be outside the scope of s.2(b),
“The Limitation of Liberty: A Consideration of Section 1 of the Charter of Rights and Freedoms”
[1982] U.B.C.L. Rev. (Charter Edition) 105 at 106 (concluding that the Canadian draftsmen “real-
istically realized that the courts will not, and in many cases cannot, give an absolute construction
to Charter freedoms” (emphasis added)).
27By subjecting all interferences with individual liberty to section l’s criterion of reasonable lim-
its, the Charter implies that all cases will be governed by the same standard. Though it does not
require the judiciary to apply the same definition of reasonableness in every case, section 1 unques-
tionably sets a universal standard that only legitimizes reasonable limits on rights.
28Christian, supra, note 26 at 106 (asserting that “Rather than having judicial energy misspent
on the creation of techniques for avoiding absolute interpretations, the Canadian limitation clause
focusses judicial attention on the adequacy of the policy reasons advanced to justify limita-
tions…”); and Gibson, supra, note 24 at 137 (stating that “if the American model is predictive,
a morass of complex and exclusive standards would result”).
1989]
CHRONIQUE DE JURISPRUDENCE
despite the fact that it is undeniably expression. 29 By contrast, a justificatory
conception assumes that a prima facie violation has occurred whenever an indi-
vidual can establish an interference with his liberty. Even though both concep-
tions permit collective values to prevail under section 1, the presumptions of
validity and invalidity expose distinct perceptions of the functions of breach and
justification.
Significantly, the Charter is as ideologically equivocal as it is analytically
logical. Unlike the U.S. Constitution, it does not indicate how the tension
between individual liberty and community values should be resolved. Under the
American document, freedom prevails because the text makes an irrefutable
presumption in favour of individual fights.3″ By contrast, the text of the Charter
equivocates. First, by indicating that the state can prevail, but not that it shall,
section 1 threatens the democratic values it was intended to reinforce.3
Whatever was intended, the words of section 1 are ideologically indifferent: the
concept of reasonable limits is so elastic that, in any given case, either the state
or the individual can win. This equivocation is aggravated by the Charter’s fail-
ure to resolve the relationship between breach and justification. On this issue,
it is open to the courts to adopt either an “entitlements” or an “exceptions”
approach because, once again, the text is different between the two. Structurally,
however, the problem is that an approach that invokes collective values to
restrict the substantive guarantees will inevitably conflict with a self-conscious
separation of the fights and their limitations. This stalemate forces an interpre-
tive choice between the introduction of definitional limitations based on justif-
icatory criteria and the duplication of section 1 review.
By separating the abstract entitlement from the question of justification,
the original conception joined a romanticism about rights with a realistic accept-
ance of life in a democracy. If the U.S. Constitution’s failure to acknowledge
limits on individual rights created an impossible dilemma for Americans, the
Charter introduced the distinctive contradiction of “romantic realism”. As
coined here, this expression describes the interpretive problems arising from a
document that creates textual equipoise between individualist values and the
29See, for example, R. v. Zundel (1987), 58 O.R.(2d) 129, 18 O.A.C. 161 (holding that holocaust
denial is not protected by s.2(b)); and R. v. Andrews (1988), 65 O.R.(2d) 161 (C.A.) (upholding
provisions prohibiting the dissemination of hate literature).
30Despite the absolutism of the text, a complex jurisprudence determines when limitations on
individual liberty are consistent with the Constitution. Although the doctrine rationalizes these lim-
its, it developed in the context of a document that creates an unambiguous presumption in favour
of the individual. Ultimately, therefore, the jurisprudence is answerable to the text.
31Although the purpose of section I is to vindicate democratic values, this provision directs the
courts to judge the reasonableness of democratic policy and thereby highlights the anti-democratic
nature of rights review, instead of diminishing it.
McGILL LAW JOURNAL
[Vol. 35
conflicting demands of social organization.”
The source of this ambivalence can be illustrated, once again, by compar-
ison with the U.S. Constitution. The American text is based on a principle of
limited government and a negative and distrustful conception of the state. In the
United States, individual rights are entitlements which are imperative against
the state as a matter of supreme law. Interferences with individual liberty are
presumed invalid because the text does not acknowledge the legitimacy of the
state’s claim.33 In Canada, however, the Charter’s equivocation between indi-
vidual liberty and collective values stems from a conception of their relationship
that is more organic and symbiotic than static and confrontational.34
Parliamentary democracy recognizes that individual autonomy and social values
will conflict, but contemplates their reconciliation on a pragmatic, ad hoc basis.
As a result, parliamentary systems impose only a few categorical rules because
“responsible government” is based on an assumption of flexible political and
social relations. These relations evolve through a dynamic process which bal-
ances competing demands through discussion and reform.
The organicism of the parliamentary tradition stands in stark contrast to the
ideological assumptions of American constitutionalism. 35 One strength of
Canada’s pre-Charter tradition was that because it did not represent the relation-
ship between the individual and the state as irresolvably in conflict, it declined
to make any categorical choice between the two.36 However, by attempting to
join that organicism with the positivism of entrenched rights, the Charter cre-
ated an unresolved contradiction. It is sometimes portrayed as shifting Canada
into the direction of American constitutional culture but although the institu-
tions of rights review may formally be in place, its ideological values are not.
Unfortunately, instead of making a choice between these conceptions, the
text delegates the task of grappling with this contradiction to the Canadian judi-
s. 33 provides the most compelling evidence of the Charter’s ideological ambivalence.
32The contradiction between a guarantee of constitutional rights and the override provision of
33The first amendment states, for example, that “Congress shall make no last, respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances” (emphasis added).
34Americans idealize their Constitution, in part, because it has endured; to them, this flexibility
reinforces its status as a fundamental truth. There can be little doubt that, through necessity, the
document has been given a flexible interpretation. That does not alter the fact that the text itself
is based on a conception of the relationship between liberty and authority that is inflexible, static
and adversarial.
35See J. Cameron, “Liberty, Authority and the State in American Constitutionalism” (1987) 27
Osgoode Hall Li. 257 for a preliminary analysis of American constitutional ideology and, in par-
ticular, of the role which a distrust of authority plays in American culture.
36Though parliamentary supremacy meant that the state would prevail as a matter of law, it did
not mean that the state should prevail as a matter of “responsible government”.
1989]
COMMENTS
ciary. The Charter has not only forced the judiciary to adopt an institutional role
that compromises its self-image as a neutral and apolitical body,37 it also abdi-
cates much of the responsibility for a Canadian ideology of rights. 8 By equivo-
cating between individualist and democratic values, the Charter compounded
the strain inherent in any system of rights review.
Dissatisfaction with the statutory bill of rights aggravated this strain even
more. As a result, early Charter adjudication was conditioned as much by con-
text as by the unresolved problems of text. Burdened by the negative legacy of
the federal Bill of Rights and seemingly untroubled by institutional concerns, the
Supreme Court of Canada initially gave the Charter an “activist” interpreta-
tion.39 To the extent that it interpreted the Chapter too aggressively in this
period, its decisions became the target of attack.4″ A second period of compar-
ative “restraint” then set in.4 If they were ever sharply defmed, those extremes
have been superseded by the current phase, in which the Supreme Court of
Canada’s Charter jurisprudence is less unstable, but almost as unpredictable.
From one perspective, this is a welcome development, because it shows that,
with increasing confidence, the Court is overcoming the pendulum swings of
the earliest years. From another perspective, however, the unsteadiness of this
jurisprudence is disturbing, because it reveals how ill at ease the Court is with
the ideological choices which the Charter forces it to make.
This equivocation is evident in the way the Court has addressed the rela-
tionship between the concepts of breach and justification. Because these con-
cepts are symbiotic, it would be impossible for the Court to interpret section 1
without affecting its perception of the substantive guarantees. Although the con-
verse is equally true, the judiciary’s concerns about section 1 have controlled its
interpretation of the substantive guarantees, rather than the reverse. Given this
dynamic, much of the discussion has focussed on the Court’s conception of sec-
37The Supreme Court of Canada’s resistance to this aspect of change is documented in The B.C.
Motor Vehicle Reference, [1985] 2 S.C.R. 486 at 496, [1986] 1 W.W.R. 481, 69 B.C.L.R. 145, 24
D.L.R. (4th) 536 (asserting that neither before nor after the Charter have the courts been enabled
to adjudicate the merits of public policy); and Dolphin Delivery, supra, note 13 at 600 (describing
the judiciary as “neutral arbiters”).
3SThe Charter unquestionably indicates a variety of ideological choices: by including sections
1 and 33; by guaranteeing minority language rights; by s.15(2)’s qualification of s.15(1); and by
its declaration of multiculturalism, to mention only a few. The point this Comment makes is that,
by failing to resolve the relationship between breach and justification, or indicate a presumption
either in favour of the individual or the state, the Charter contains no ideological statement of its
raison d’etre.
39See A. Petter and P.J. Monahan, “Developments in Constitutional Law: The 1985-86 Term”
(1987) 9 Sup. Ct L. Rev. 69 [hereinafter Petter and Monahan] (documenting the Supreme Court
of Canada’s “activism” in the early jurisprudence).
40See A. Petter, “The Politics of the Charter” (1986) 8 Sup. Ct L. Rev. 472 [hereinafter Petter].
41See Petter and Monahan, “Developments in Constitutional Law: The 1986-87 Term” (1988)
10 Sup. Ct L. Rev. 61 at 61-70 (documenting this period of comparative restraint).
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tion 142 Not surprisingly, a consensus has emerged that Oakes propounded a
strict standard of justification which the Court subsequently found impossible
to implement.43 The Court’s retreat from Oakes has been documented but nei-
ther the judiciary nor its commentators have examined the issues inherent in the
Charter’s bifurcation of breach and justification. Precisely because these con-
cepts are symbiotic, that analysis is a prerequisite to any reform of the Oakes
test. This Comment on Irwin Toy demonstrates that the Court’s definitional lim-
itations on the scope of expressive freedom are justificatory and, ultimately,
advocates a return to the original conception of section 1.
II. Irwin Toy Ltd v. A.G. Quebec”
A.
Introduction
The scope of the substantive guarantees is governed by the “purposive”
approach45 whose content has been defined with more precision through sub-
sequent adjudication. Although commentators have favoured a restrictive inter-
pretation of s.15 from the start, the status of limitations on freedom of expres-
sion was more ambiguous. 6 In light of this uncertainty, the early Charter deci-
sions dealing with labour relations, especially Dolphin Delivery, are pivotal.47 In
Dolphin Delivery, the Supreme Court of Canada flatly asserted that s.2(b) would
not protect “threats or acts of violence, property destruction, assault, or other
clearly unlawful conduct”.” In making that pronouncement, it failed to explain
why certain activity is excluded from s.2(b).49 Without exploring their concep-
42Although sections 15 and 2 have also generated a body of literature, section 1 has been fea-
tured in commentary for the simple reason that it applies in every case. The three year moratorium
on section 15’s operation, together with the lack of an early section 2(b) jurisprudence, have helped
retain the focus on section 1.
43For commentary along these lines, see Monahan and Petter, supra, notes 39 and 41 and Petter,
supra, note 40; see also R. Elliot, “The Supreme Court of Canada and Section 1: The erosion of
the common front” (1988) 12 Queen’s LJ. 277.
44Supra, note 5.
45Big M, supra, note 14 at 344 (stating that this interpretation should be “a generous rather than
a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the
full benefit of the Charter’s protection”).
46See Gibson, supra, note 24.
47Supra, note 13; see also Reference Re Public Service Employee Relations Act (Alta), [1987]
1 S.C.R. 313, 51 Alta L.R. (2d) 97, [1987] 3 W.W.R. 577, 38 D.L.R. (4th) 161; Public Service
Alliance of Canada v. R., [19871 1 S.C.R. 424, 32 C.R.R. 114, 38 D.L.R. (4th) 249; and Retail,
Wholesale andDept Store Union v. Saskatchewan, [1987] 1 S.C.R. 460,56 Sask. R. 277, 38 D.L.R.
(4th) 277 (holding that s.2(d) does not include the right to strike or bargain collectively] [herein-
after referred to collectively as the Labour Trilogy).
4t1bid. at 588.
49For a brief comment, see J. Cameron, “The Forgotten Half of Dolphin Delivery: A Comment
on the Relationship Between the Substantive Guarantees and Section 1 of the Charter” (1988) 22
U.B.C. L. Rev. 147.
19891
CHRONIQUE DE JURISPRUDENCE
tual or analytical viability, Dolphin Delivery simply assumed that limitations on
the scope of the substantive right were appropriate. This decision is significant
because it legitimized a justificatory interpretation of s.2(b), thereby blurring the
distinction between the scope of the right and section l’s vindication of demo-
cratic values.5″ The decision in Irwin Toy further obscures that distinction.
A majority of those who participated in Irwin Toy concluded that Quebec
legislation prohibiting advertising aimed at children under thirteen years of age
was a justifiable breach of the Charter’s guarantee of expressive freedom.5′ In
reaching this conclusion, the Court articulated a complex test to determine the
scope of s.2(b).52 A few months earlier, however, Ford had held that s.2(b) pro-
tects commercial expression.53 This conclusion avoided the need for any discus-
sion of that issue in Irwin Toy. It is trite law that a court should not offer abstract
opinions on important questions of constitutional interpretation, and it is unfor-
tunate that the Supreme Court of Canada ignored one of its own principles of
adjudication in this case.54 In large part because it was promulgated in the
abstract, Irwin Toy’s test is vague and imponderable.
Following Irwin Toy, courts must apply two tests to determine the scope of
s.2(b). Under the first, the Court held that “[a]ctivity is expressive if it attempts
5There can only be two rationales for excluding violent or destructive picketing activity from
s.2(b): that it constitutes pure conduct rather than expression, or that it is justifiable for the state
to limit expressive activity which causes harmful consequences. By including a reference to other
“clearly unlawful conduct”, Justice McIntyre’s reasons suggest the latter interpretation, and his
concurring reasons in B.C. Govt Employees’ Union v. R., [1988] 2 S.C.R. 214 at 250-52,53 D.L.R.
(4th) 1, confirm that view.
5’Only five judges participated in this decision [Dickson C.J., Lamer and Wilson JJ.; Beetz and
McIntyre JJ., dissenting]. Two of the five, Justices Beetz and McIntyre, have retired, and two oth-
ers who heard the case but did not participate in the decision, Justices Estey and LeDain, have also
resigned.
52Technically, this test consists of two steps: the first determines what activity is expression, and
the second, whether such activity is protected expression. However, within the second step, the
Court created a further dichotomy between the purpose and effect of legislation, making this a
three-step test.
53Supra, note 13 at 767: “there is no sound basis on which commercial expression can be
excluded from the protection of s.2(b)”.
54This principle can be traced to Citizens Insurance Co. v. Parsons (1881-82) 7 A.C. 96 at 108.
It was ignored then and despite being regularly invoked, is still ignored today. Perhaps in antic-
ipation of Irwin Toy, the Court stated, in Ford, ibid. at 767 that “the focus [in this case] is on choice
of language and … [w]e are not asked … to deal with the distinctive issue of the permissible scope
of regulation of advertising….” This passage was then cited in Irwin Toy, supra, note 5 at 967.
Although Ford technically reserved the point, it also indicated that the permissible scope of adver-
tising regulation was a section 1 issue, not a s.2(b) issue, ibid. at 767. This meant that Irwin Toy
raised no real issue about the scope of s.2(b); see McIntyre J., dissenting in Irwin Toy, ibid. at 1006.
It is revealing that h-win Toy’s discussion of the s.2(b) status of advertising is set out in a single
paragraph. The rest of its discussion of s.2(b) has nothing to do with the issue which the Court
claimed it was addressing. Effectively, it is obiter dicta.
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to convey meaning”.” In doing so, it appeared to adopt a literal interpretation
of s.2(b), 6 Somewhat inconsistently, the second part of the analysis adds qual-
ifications which explore the nature of the violation. According to these criteria,
whenever the state has committed an act of purposeful interference with expres-
sive freedom, the breach is presumed and section 1 review is required; in all
other cases, the individual has the burden of establishing entitlement to s.2(b)
protection by proving that the expressive activity in question serves its under-
lying values.5
There are further complexities. Not only is the purpose-effect distinction
grafted onto a concept of expression that is essentially literal, but exceptions are
also grafted onto both parts of the test. Violent forms are excluded from the first
test’s definition of expression58 and, under the second test, the presumption of
invalidity for purposeful breach is qualified by an exception for the physical
consequences of expressive activity. 9 In this way, activities that would satisfy
the preliminary definition are excluded from s.2(b).
To the extent that it defined what is included in s.2(b), Irwin Toy is less
problematic,’ More difficult to understand are its exclusionary criteria and
adoption of the purpose-effect distinction in this context. Inherent in such an
elaborate series of inquiries is substantial analytical overlap. Following this
decision, the lower courts will be required to draw distinctions between form
and content,61 purpose and effects, 62 and speech and its consequences in order
to determine the preliminary issue of breach.63 Then, under section 1, they must
assess the legitimacy of the state objective and apply the three part proportion
551rwin Toy, supra, note 5 at 968.
56Ibid. at 969 (stating that “if the activity conveys or attempts to convey a meaning, it has
expressive content and prima facie falls within the scope of the guarantee”). Any interpretation of
s.2(b), including one that is literal, will be definitional, because it gives the words “freedom of
expression” meaning. In constitutional terms, however, a literal approach is non-interpretive: the
words receive a popular, rather than a jurisprudential, interpretation.
571bid. at 971-77.
51bid. at 970.
591bid. at 974-76.
60A definition of expression as any activity which attempts to convey meaning is somewhat
vague because it does not specify whether this criterion is subjective or objective. The Court may
have a mixed test in mind: the claimant must show a subjective intention to communicate, which
can objectively be understood as having “meaning”. Interpreted in this way and without reading
substantive content into the word “meaning”, Irwin Toy would only exclude activity that is not cog-
nizable as expression. Given the function of section 1, this definition would have sufficed without
any further qualification.
61This is the dichotomy the Court created in the first step of its test.
62This distinction is the basis on which the second step of the test rested.
63This is the “physical consequences” exception the Court grafted onto the second step’s concept
of purposeful breach.
1989]
COMMENTS
ality test of Oakes.64 Such a complex doctrinal overlay can only cause problems
of implementation. This difficulty is compounded by the lack of any substantive
concept of expressive freedom or vision of the Charter’s structural logic.6″
B. Defining “Expression”
Unless the Supreme Court of Canada is prepared to protect all conduct
which an individual subjectively characterizes as expressive, a definition of
expression is unavoidable. Accordingly, the first step in Irwin Toy’s test seeks
to separate activity that is constitutionally protected from that which is not. In
doing so, it defines what expression is, distinct from conduct, with more preci-
sion than the dicta in Dolphin Delivery.66 The examples which the Court
invoked to illustrate the difference between protected expression and unpro-
tected conduct initially appear unproblematic: they recall the speech-conduct
distinction of American first amendment jurisprudence. Conclusions that park-
ing a car, murder and rape are not protected by s.2(b) respond to the instinct that
there must be a difference between pure conduct and constitutionally protected
expression.67
The difficulty is that, although parking a car normally has no expressive
content beyond the observable physical act, in some cases it might. Irwin Toy
acknowledged this possibility by stating that car parking can attain constitu-
tional dimensions when a claimant establishes that the physical act is accompa-
nied by an attempt to convey meaning. 6 Nonetheless, having articulated a def-
inition of “expression” that is effectively literal, and having potentially
extended it to all conduct which conveys a meaning, the Court retreated into a
double standard. Though car parking may occasionally come within s.2(b), mur-
der and rape are absolutely excluded.69 As an explanation, the Court simply
64Supra, note 11 (requiring the courts to determine the permissibility of the state’s objective
before assessing the reasonableness of its means through a three part proportionality test).
65At the outset, the Court stated that “[c]learly, not all activity is protected by freedom of expres-
sion, and governmental action restricting this form of advertising only limits the guarantee if the
activity in issue was protected in the first place.” Irivin Toy, supra, note 5 at 967, emphasis added.
Since advertising is undeniably a form of expressive activity, this statement reveals an assumption
that a non-literal or definitional interpretation of s.2(b) is appropriate. The Court did not rationalize
this concept of expressive freedom, except by citing Dolphin Delivery, supra, note 13, Big M,
supra, note 14 and some American commentary, none of which addresses the relationship between
s.2(b) and s.l.
661bid.
67hivin Toy, supra, note 5 at 969 (stating that “some human activity is purely physical and does
not convey or attempt to convey meaning.”).
6tThus an unmarried person might park in a zone reserved for spouses of government employees
69 “While the guarantee of free expression protects all content of expression, certainly violence
to protest that form of preferential treatment based on employment and marital status. Ibid.
as a form of expression receives no such protection.” Ibid. at 970, emphasis added.
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asserted that “freedom of expression ensures that we can convey our thoughts
and feelings in non-violent ways without fear of censure”. 0
With respect, a definition of expression which selectively excludes certain
types of communication on the basis of their “form” fails to explain why some
expressive activities are governed by a concept of breach, and others by section
l’s standard of justification. When an act is purely violent and not cognizable
as expression, perhaps it should be excluded from s.2(b), as in the case of mur-
der or rape simpliciter7′ When conduct can be identified as expression, how-
ever, the real issue is whether its undesirable elements are harmful enough to
justify its prohibition under section 1. As a result, the analysis which the Court
applies to car parking applies with equal force to “violent” forms of expression.
Just as a court might conclude that blocking the emergency entrance to a hos-
pital is an unjustifiable means of protesting the lack of intensive care services,
it might also conclude that property destruction is not an acceptable by-product
of labour picketing. Under a bifurcated scheme, consequences which compro-
mise an individual’s entitlement to Charter protection do not raise a question
about the definitional scope of the right; more accurately, they raise an issue
about the justifiability of denying Charter protection in the contextual circum-
stances surrounding the exercise of the right.72
Instead of denying that activity which has a violent element can be consid-
ered “expression” under s.2(b), the Court should give it prima facie protection
and deal with any elements that compromise its constitutional status under sec-
tion 1.’ The justificatory analysis need not be complex: it can hardly be dis-
puted that peace and order are sufficient reasons for prohibiting expression
which incites acts of violence.74 In lieu of a simple justificatory analysis, how-
ever, the first part of Irwin Toy’s s.2(b) test introduced criteria which have the
effect of pre-empting section 1 review. The reflex to exclude violent forms is
7 Ibid. The Court cited the dicta of Dolphin Delivery, supra, note 13 that s.2(b) would not protect
threats of violence or acts of violence. Curiously, it did not include Dolphin Delivery’s references
to assault, property destruction and other clearly unlawful conduct, and otherwise did not explain
why violent expression should be singled out for exclusion.
71In excluding violent forms of expression, the Court drew no distinction between those that
attempt to convey a meaning, and those that do not. Instead of limiting the exclusion to acts of pure
physical violence, the Court explicitly stated that certain forms of expression are outside the guar-
antee, even if they are “chosen to convey a meaning”. Ibid. at 970.
721n Ford, supra, note 53 at 766, the Court suggested that the functional difference is that s.2(b)’s
analysis is definitional, and section l’s is contextual. The difficulty is that any non-literal definition
of expression will unavoidably be contextual. The point is pursued in the text.
731t bears repeating that conduct should only receive preliminary recognition under s.2(b) if it
attempts to convey meaning or, in other words, is cognizable, on a mixed subjective-objective test
construed liberally in favour of the guarantee, as expression.
74A detailed proposal suggesting the modifications to the Oakes test which would be necessary
to accommodate the possible range of s.2(b) issues which can arise is beyond the scope of this
Comment. See Cameron, supra, note 15.
1989]
CHRONIQUE DE JURISPRUDENCE
instinctive, but it nevertheless obscures the distinction between breach and jus-
tification. Because “violent forms” do not exist in the abstract, the threat which
they pose to society can only be assessed contextually. By failing to distinguish
between acts of gratuitous violence and violent conduct which may also be
expressive, the Court’s concept of expression as “meaning” and violence as
“form” renders uncertain the status of many communicative activities.
One step removed from pure violence having no discernible communica-
tive intent, the exclusion is problematic. Any number of violent “forms” can be
placed along a spectrum from political terrorism to flag desecration to picketing
to hate literature and obscenity to the abstract advocacy of socialist revolution.
Whether or not any particular form is protected by the Charter will depend, in
large part, on the imminence and severity of the violence threatened or incited:
in other words, by the justifiability of prohibiting it on the facts of the case. By
making this an issue of initial entitlement, rather than of contextual assessment,
the Supreme Court of Canada has confused the concepts of breach and justifi-
cation, and encouraged the lower courts to draw non-existant definitional lines.
In the end, an exclusion that might appear both limited in scope and intuitively
correct is unworkable because it is analytically flawed.75 As Justice LaForest has
stated: the Constitution must be applied “on a realistic basis … and not on an
abstract theoretical plane”.76
C. Purpose and Effect
The first step of the analysis is symptomatic of problems inherent in the
entire decision. Whereas that step introduced justificatory criteria to rationalize
an exclusion for violent communications, the second step did so by drawing fur-
ther distinctions between protected and unprotected expression. The result is a
decision which endorses a baffling double standard whereby a presumption of
invalidity applies in cases of purposeful interference with expressive freedom,
and a presumption of validity, in all other cases where the state has merely
affected expressive freedom. Although the presumption of validity can be rebut-
ted by evidence that the claimant’s activity is valuable s.2(b) expression, that
inquiry is completely irrelevant in cases of purposeful breach.” In this way,
Irwin Toy discriminates between different kinds of s.2(b) claims.
This analytical structure demonstrates, once again, the Supreme Court of
Canada’s unwillingness to choose between competing conceptions of the
Charter’s bifurcated scheme. As a result, its twin doctrinal standards are in a
state of tension, both with themselves and with each other. For example, by ini-
the next section of text.
75The same is true of the Court’s exception for “physical consequences”, which is discussed in
76Edwards Arts, supra, note 11 at 795 (concurring opinion).
771nvih Toy, supra, note 5 at 971-77.
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tially defining expression as the attempt to communicate, the Court adopted a
conception of the right that was essentially literal. As such, the first part of the
analysis appeared to approve of a justificatory approach, which presumes the
breach and requires the state to establish its reasonableness. At the same time,
however, the Court excluded violent forms from this definition of expression.
In the absence of an explanation, it seems to have concluded that violent expres-
sion does not warrant Charter protection, thereby simultaneously embracing a
conception of the right as a privilege to which a claimant must establish
entitlement.
There is a parallel in the second part of the analytical framework. A finding
of breach in every case of purposeful interference suggests that limitations are
viewed as exceptions from a presumption in favour of the right.7″ However, by
imposing a burden on all those whose expressive freedom has merely been
adversely affected, Itwin Toy also endorsed a conception of the right that
requires the claimant to establish his entitlement to the constitutional guaran-
tee.79 Finally, the literal approach of the first test creates tension with the
purpose-effect focus on the quality of the violation. This conceptual see-saw
reveals the Court’s unwillingness to decide whether limitations on individual
rights should be substantively defined, or otherwise identified through a justif-
icatory analysis. In the end, Irwin Toy’s framework appears guided by raw
instinct, rather than by any concept of the Charter’s structural logic or of
expressive freedom.”
Turning specifically to the Court’s discussion of purposeful interference,
hwin Toy grafted additional exceptions onto its presumption of invalidity in
such cases. In doing so, it further dissected the substantive right and created
additional difficulty. Restrictions on expressive freedom which are aimed at the
content of a communication constitute a prima facie breach of the Charter
because they are purposeful, unless they merely prohibit the physical conse-
quences or the direct physical results of expressive activity.8′ Presumably, such
7SThe accuracy of this statement turns on the definition of “purpose”. If any direct interference
is considered purposeful, that effectively would mean that a breach occurs every time the state
infringes expressive freedom. Because most infringements arise from provisions that prohibit
expressive freedom on the face of the legislation, this interpretation of “purpose” would give the
presumption of unconstitutionality a broad scope. On the other hand, if a claimant must show bad
“motive” or malafides to establish a breach, this would restrict the presumption of invalidity. This
issue is discussed further in the text.
79Under this criterion, the fact that the state has interfered with the constitutional guarantee is
not sufficient to constitute a breach until the claimant establishes the social utility of his expressive
activity.
8The purpose-effect distinction was introduced in Big M, supra, note 14, a case concerning the
scope of s.2(a). Not only did the decision in Irwin Toy merely assume its applicability to s.2(b),
infra, note 94, it used the distinction to restrict the scope of the guarantee, though Big M did not.
Sllrwin Toy, supra, note 5 at 974-76.
1989]
COMMENTS
prohibitions do not violate s.2(b) because they control the results of expressive
activity, not its content.
Even without section l’s overlay of reasonable limits, this distinction
would be difficult to grasp. The attempt to isolate an act of communication from
its consequences is artificial and formalistic. Expressive activity is not always
discrete; when speech is merged with conduct and communication is insepara-
ble from its consequences, an abstract right cannot be defined in terms of pro-
tected expressive elements and unprotected consequences. As Justice Holmes
observed, “[e]very idea is an incitement”.,s Expressive elements cannot be
detached from their contextual setting because the scope of the right and its per-
missible limits inescapably collapse into a question of fact. 3 Precisely because
section 1 exists, a literal conception of expressive freedom is structurally and
analytically unavoidable.
The Court’s exclusion of physical consequences may have its roots in
Dolphin Deliveiy’s exceptions for acts of violence, property destruction and
assault. But it is also predicated on an assumption that it is possible to deal with
some undesirable consequences under s.2(b) and others under section 1. The
difficulty is that Irwin Toy never explains why “non-physical” consequences
pose a section 1 issue and “physical” consequences, a s.2(b) issue. 4 For exam-
ple, is perjury included because it is not a violent form and usually does not
produce physical consequences; and is the incitement of non-violent crime con-
stitutionally protected, though the solicitation of violent crime is not; or finally,
are the physical consequences of expression somehow more damaging than its
non-physical results, as in defamation cases? Additionally, Irwin Toy also fails
to suggest how the physical and non-physical should be distinguished as a mat-
82Gitlow v. New York, 268 U.S. 652 at 673 (1925) (dissenting opinion).
83The same is true of the exception for violent forms.
84The Court’s distinction between a prohibition against the distribution of pamphlets and a rule
against littering illustrates the point: whereas the former is tied to content, the latter simply aims
to control the physical consequences of conduct, “regardless of whether that conduct attempts to
convey meaning.” Irwin Toy, supra, note 5 at 975. Assuming the soundness of that example, it is
unclear how it would apply to others such as flag desecration, the erection of a peace camp on
Parliament Hill, and a prohibition on overnight sleeping in a public park. See Texas v. Johnson,
109 S.Ct 2533 (1989) (flag desecration); and Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984) (sleep-in to protest the plight of the homeless). They all fit the Court’s exclusion-
ary criterion for physical consequences, despite the attempt to convey meaning in each case. Only
the prohibition on flag desecration appears aimed at the content of the message.
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ter of doctrinal application.”5 Ultimately, therefore, the dichotomy is less analyt-
ical than intuitive.
These points can be further illustrated through an analogy between adver-
tising aimed at children and other forms of solicitation, such as tobacco adver-
tising and street-walking.86 Given evidence about the consequences of advertis-
ing aimed at children, it is not even clear why Irwin Toy was decided under
section 1″ Conceptually, it is doubtful there is much difference between buying
a toy, a carton of cigarettes or sexual services: much expressive activity even-
tually leads to physical action. Functionally, in terms of the relationship between
s.2(b) and section 1, it is doubtful there is any difference at all. The character-
ization is unworkable because, ultimately, undesirable consequences, whether
physical or non-physical, raise a question of justification, not of abstract
entitlement.
However, by creating a dichotomy and then neglecting to articulate a con-
cept of causation to support it, Ii-win Toy leaves lower courts free to draw the
exception as narrowly or expansively as they please. While a generous interpre-
tation of the exception could result in the exclusion of advertising, a peace camp
or flag burning, a narrow interpretation could render it ineffective. Under an
alternative reading, as long as the state remains free to punish the perpetrator of
physical consequences, any expressive activity which is discrete would initially
85The Court makes confusing reference to the role of any “intervening element of thought, opin-
ion, belief, or a particular meaning”; Irwin Toy, ibid. The distinction appears to be that where any
intent to communicate can be found, the activity will be protected as expression. Where such an
intention cannot be found, the state’s prohibition of the subsequent physical consequences will not
be considered a violation because the activity did not constitute a communication. Unfortunately,
this refinement is not helpful. Because it is expressed in abstract terms, it overlooks the fact that
physical action is always preceded by a decision to create consequences. If that is so, the exception
is meaningless: where a cognitive element has not intervened, as perhaps in cases of murder and
rape, the activity in question is pure conduct. The definition of expression addressed that point, and
by employing slightly different doctrinal language to cover it again under step two, the Court added
a confusing gloss.
86The cases dealing with solicitation for the purpose of prostitution are currently before the
Supreme Court of Canada. For lower court opinions, see Reference Re Sections 193 and
195.1(1)(c) of the Criminal Code, [1987] 6 W.W.R. 289, 49 Man. R. (2d) 1 (C.A.); Skinner v. R.
(1987), 58 C.R. (3d) 137, 196 A.P.R. 8 (N.S. C.A.); and R. v. Jahelka (1987), 58 C.R. (3d) 164,
54 Alta. L.R. (2d) 1 (C.A.). An action challenging the constitutionality of restrictions on tobacco
advertising is pending; see Rothmans, Benson & Hedges v. A.G. Canada (August 17, 1989),
A-301-89 (F.C.T.D.).
87The Court’s distinction between regulations aimed at content and mere physical consequences
is based on a distinction between conduct that is triggered by elements of thought, opinion or
belief, and conduct which is not, supra, note 84. Despite this distinction, the Court upheld these
regulations because of the susceptibility of young children to manipulative or misleading advertis-
ing. If the basis of the decision is that children, as listeners, lack the capacity to interpose an ele-
ment of cognition, consumer purchases resulting from the speaker’s advertising are a physical
result which might be excluded from s.2(b) on the Court’s own analysis.
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CHRONIQUE DE JURISPRUDENCE
be protected.”8 As the Court pointed out, legislation prohibiting the distribution
of literature would violate s.2(b), though legislation punishing those who com-
mit the act of littering would not. 9
This interpretation of Iwin Toy produces a rule of adjudication which
would treat any interference with expressive activity, even that which is quasi-
physical, as a breach, because the state can punish any purely harmful conduct.
If this is how Irwin Toy should be read, prohibitions on expression that produces
consequences, whether immediate or remote, trigger section 1 review.9″ On this
view, the Court’s definitional restrictions collapse into the preliminary defini-
tion: the exceptions for violent forms and physical consequences are redundant
because pure conduct is outside the conception of expression as an attempt to
convey meaning.9 ‘
Beyond these problems of implementation, Irwin Toy is troubling because
it fails to respect the structural integrity of the Charter. The Court appeared
unaware of the need to distinguish between breach and justification, or to pre-
serve the functional role of section 1.’ Although the Court may have been cor-
rect in excluding non-communicative conduct from the scope of s.2(b) because,
defimitionally, it is not “expression”, Irwin Toy’s other criteria are justificatory.
The exclusion of violent forms and other expressive activity giving rise to phys-
ical consequences is not based on any conclusion that it is not expression, but
on an instinct that it is permissible for the state to prohibit communicative activ-
ity that is linked to undesirable consequences.
Both conceptually and structurally, the problem with imposing definitional
limitations on freedom of expression is that the right cannot be defined in the
abstract, without a contextual assessment of its surrounding circumstances.
Because that assessment must be experiential, it cannot be reduced to an
88On this analysis, pure physical conduct would remain outside s.2(b) but activity which has
undesirable physical consequences would be protected, subject to section l’s justificatory analysis.
891rwin Toy, supra, note 5 at 974-75. By adding the qualification that littering is excluded, “even
if it attempts to convey meaning”, the Court created additional confusion. Littering is somewhat
like parking a car: it is an ordinary physical act which only occasionally has expressive content.
In the case of car parking, however, the Court acknowledged that the physical act would be pro-
tected if it attempted to convey a meaning, supra, note 68. By stating a different rule for car parking
and littering, the second step of Irwin Toy contradicts the first. The purpose-effect distinction does
not explain the conflict.
9 This interpretation would extend s.2(b)’s protection to tobacco advertising, solicitation for the
purpose of prostitution, incitement, hate literature, obscenity, and a range of expressive activities
which induce physical results, whether directly or indirectly.
91″Violence” is a subset of the more amorphous category of “physical consequences”. By sep-
arating violent forms from other physical consequences, the Court inferred a distinction between
the two which may not exist.
92Compare Ford, supra, note 13 at 766 (emphasizing the distinction between s.2(b) and s.1
analysis).
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abstract definition. An assessment which is inescapably contextual and justifi-
catory should be conducted under section 1. By doing otherwise, Irwin Toy has
introduced a confusing doctrinal solution which attempts to bifurcate the issue
of permissible limitations, addressing it under both s.2(b) and section 1.
If Irwin Toy’s exceptions for violent forms and physical results are difficult
because they undercut section 1, the purpose-effect distinction is problematic
for additional reasons. First, it is implicit in Irwin Toy’s definition of expression
as an attempt to convey meaning that any interference with expressive activity
constitutes a primafacie breach. From this perspective, the conceptual and ana-
lytical utility of a second level of analysis is not apparent.93 Second, and perhaps
more importantly, the purpose-effect distinction does not apply in this context:
whether or not an individual’s expressive activity advances s.2(b)’s underlying
values is irrelevant in determining the existence of a violation. According to the
Court, however, regulations which undeniably infringe expressive freedom are
presumed to be valid until the claimant affirmatively establishes that the activity
promotes s.2(b)’s underlying values.’ The Supreme Court of Canada has cre-
ated a double standard based on the erroneous assumption that its severity
somehow determines whether a breach has occurred. 95
Conceptually, the difficulty is that Irwin Toy treats Big M’s purpose-effects
distinction as a proxy for the principle of content neutrality.96 Unfortunately, the
analogy does not work. Any requirement of purposeful interference is actually
in conflict with content neutrality because it implies that the state’s motive is
relevant. 97 Any focus on the state’s purpose requires the judiciary to speculate
on why the legislature prohibited certain activity. In many cases, it will be dif-
ficult, if not impossible, for the judiciary to determine whether a breach was
purposeful. Anti-solicitation legislation may seek to censor the offer to engage
in immoral conduct, to eradicate a visible public nuisance, or both. Parliament’s
motive should be irrelevant, however, because the mere fact that it has selec-
93In adopting the distinction in Irwin Toy, the Court simply stated that “[t]he importance of
focussing … on the purpose and effect of the legislation is nowhere more clearly stated than in [Big
M]”. Irwin Toy, supra, note 5 at 972.
94Ibid. at 976-77.
951t is beyond the scope of this Comment to discuss the relevance of purpose and effect in other
contexts, such as s.15.
9qthe Court’s discussion suggests that it views the concept of purposeful breach as the functional
equivalent of a principle of content neutrality, the governing rule of first amendment doctrine.
Unfortunately, the Supreme Court of Canada has erred in equating this principle with the purpose-
effect distinction. In American doctrine, content discrimination presumptively violates the first
amendment, without any inquiry into purpose or motive. Furthermore, state action which has the
effect of denying expressive freedom is also considered a primafacie violation of the Constitution.
Although content distinctions are judged by a higher standard of review, that is reflected in the
American equivalent of section 1 analysis, rather than in any preliminary determination about the
definitional scope of the right. For further discussion of this point, see Cameron, supra, note 15.
97Iruin Toy, supra, note 5 at 973.
1989]
COMMENTS
tively regulated expressive activity on the basis of its content betrays a purpose
that is presumptively unconstitutional. In this context, “purpose” should be syn-
onymous with purposeful.98 Accordingly, a breach is established whenever the
state interferes with expressive freedom, regardless of its purpose or motive in
doing so.
Any other interpretation of this requirement would compromise the con-
cepts of breach and justification. In the case of street-walking, for example, it
would be difficult to argue that Parliament’s selective targeting was not purpose-
ful, because the provision regulates a single form of solicitation based on its
content. However, when motive is confused with purpose, a less insidious inter-
pretation can be suggested: on this view, the legislation simply regulates the
streets, without censoring prostitution. Tobacco advertising provides a further
example of the way in which a focus on purpose can deflect the analysis. It is
undeniable that, on its face, restrictions on tobacco advertising constitute a form
of content discrimination; at the same time, however, the legislature’s interest
can be characterized as concern for the safety of smokers, prospective smokers
and those exposed to secondary smoke. If purpose is made synonymous with
motive, the health and street control rationales become the functional equiva-
lents of Oakes’s sufficiently important government objective.99 Ultimately, any
assessment of the legislature’s objectives unavoidably engages the justificatory
issue. Because this is the function of section 1 review, the state purpose is not
relevant in determining whether there has been a breach.
Furthermore, any distinction between purpose and effect is also unsound.
Once an interference with expressive freedom is established, the state’s reasons
for violating that constitutional right have no relevance whatsoever. Even if the
purpose of the anti-solicitation legislation is street control, this does not mean
that the prohibition interferes any less with the expressive freedom of those who
wish to solicit acts of prostitution. Similarly, Parliament’s prohibition against
the erection of structures on Parliament Hill might not be “aimed at” expressive
98Instead of suggesting a subjective intent, it should only require a direct interference with
expressive freedom.
99This is alarming because it assumes the relevance of division of powers principles in Charter
adjudication, Irwin Toy, supra, note 5 at 973-74. However, the purposes of the analysis are entirely
different: in the division of powers context, the judiciary would ask whether restrictions on the
activities of prostitutes were aimed at the regulation of streets or were, in their pith and substance,
an attempt to engage the federal criminal law power. See Westendorp v. R., [1983] 1 S.C.R. 43,
2 C.C.C. (3d) 330. Jurisdictional analysis cannot apply under the Charter, because the state’s pur-
pose in violating a guarantee is irrelevant. By suggesting that division of powers concepts some-
how control the scope of s.2(b), the Court has introduced the justificatory criteria into the concept
of breach. Any focus on purpose at this stage of the analysis destroys the distinction between
breach and justification.
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freedom but when the state tears down a peace camp pursuant to such regula-
tions, expressive freedom has nevertheless been violated.”W Although the state’s
objective in restricting expressive activity is unquestionably relevant under sec-
tion 1, it makes no contribution to the prior question whether the state has inter-
fered with expressive freedom. Requiring one set of claimants to establish the
social utility of their expressive activity, while assuming its value in the case of
others, is inappropriate. Moreover, by requiring some to prove the social utility
of their expressive activity, while assuming its value for others, Irwin Toy cre-
ates further conflict between its definitional restrictions and the initial definition
of expression. The result is confusion.
Conclusion
This Comment has challenged the assumption that definitional limitations
are either conceptually sound or analytically workable. Irwin Toy demonstrates
that, at least in the context of s.2(b), restrictions on the substantive guarantee
compromise the functional integrity of section 1. Though the decision to
exclude violent forms and expressive activity resulting in physical conse-
quences is instinctive, such exceptions are directly based on justificatory crite-
ria. Despite the strength of those instincts, it matters where the justificatory
analysis is undertaken.’
The right cannot be limited, as an abstract entitlement, by definitions that
require contextual application. In addition, because this analysis must be con-
textual, it unavoidably focusses on the permissibility of limitations on expres-
sive freedom. Criteria that fail to distinguish between a “violent form” and vio-
lence itself or between physical and non-physical consequences, and which
make the initial entitlement contingent on a purpose-effect distinction render
Irwin Toy unworkable.
Furthermore, these criteria do not have a jurisprudential content independ-
ent of the justificatory issue. They are offered without any substantive or insti-
tutional explanation of the Court’s conception of expression. Given the purposes
of the bifurcated scheme, it is doubtful that any definition imposing normative
restrictions on the scope of s.2(b) can be sustained.”w Institutionally, the covert-
ness of definitional interpretation may do more to undermine the legitimacy of
‘0Supra, note 84. The peace camp was removed pursuant to regulations which prohibited the
erection of structures on Parliament Hill.
I0I am often confronted with the accusation that the original conception of section 1, as I
describe it, is both purist and unrealistic. I am told that not only do definitional limitations ease
the burden of section 1 review, but they are positively beneficial. For example, who could doubt
the wisdom of denying all constitutional status to perjury or criminal solicitation? For a full defense
of my views, see Cameron, supra, note 15.
’02Once again, support for this position will be found in Cameron, ibid.
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CHRONIQUE DE JURISPRUDENCE
review than would analysis under section 1.13 Finally, the Court’s unwillingness
to confront the interpretative issues inherent in the bifurcation of the rights and
their limitations perpetuates the ideological confusion surrounding the text and
the reluctant jurisprudence it has generated.
However, the Supreme Court may be able to remedy the confusion created
by Irwin Toy. First of all, Irwin Toy can and should be.’read down”.” Instead
of applying its complex framework literally, it is open to the Supreme Court of
Canada to treat the preliminary definition of expression as its governing con-
cept. Thus, the exceptions for violent forms and physical consequences would
be understood as illustrations of pure conduct outside the scope of expression
as an attempt to convey meaning. The purpose-effect distinction can also be
minimized by following decisions which endorse an expanded interpretation of
s.2(b).’0 The distinction can then be recalled under section 1, where the reasons
for the state’s violation of a constitutional right are weighed against the values
which the expressive activity serves. In this way, the functional equivalent of a
literal interpretation can be substituted for Irwin Toy’s definitional limitations.
A literal interpretation of s.2(b) is synonymous with the original concep-
tion of section 1. Adopting that interpretation therefore makes the reform of
Oakes necessary. Accordingly, a second suggestion is that the Supreme Court
of Canada introduce diverse standards of justification to accommodate the range
of s.2(b) issues that will arise. Such a project is as imperative as it is inevita-
ble.”t
Section 1 makes the Charter distinctive: it is a testament to our commit-
ment to democratic values. We should not shy away from the task or be fright-
ened by it. The balance between individual rights and community values will
not be found in the guarantees but must be addressed, frankly and openly, under
section 1. Retreating into doctrinal formulas within the substantive guarantees
is not the answer.
103A doctrinal framework that is vague and difficult will generate a jurisprudence of irreconcil-
able results.
11nvin Toy is a weak precedent: only five members participated; two dissented from the major-
ity opinion, and two of the five have resigned their positions. Still, it is more realistic to expect
the Court to reinterpret these criteria than abandon them.
105Supra, note 45. It is open to the Court to give s.2(b) a liberal interpretation, despite Irwin Toy’s
references to the purpose-effect distinction. Given liberal statements about the scope of s.2(b)’s
underlying values in Dolphin Delivery, supra, note 13 and Ford, supra, note 13, there should be
no difficulty in finding a breach in cases where the state interfered with expressive freedom, but
not purposefully.
16Once again, see Cameron, supra, note 15, which provides a comprehensive proposal for the
reform of Oakes in all s.2(b) cases.
