CASE:

Irwin Toy Ltd. v. Quebec (Attorney General)

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927

The Attorney General of QuebecAppellant

v.

Irwin Toy LimitedRespondent

and

Gilles Moreau in his capacity as President

of the Office de la protection du consommateurIntervener

and

The Attorney General for Ontario,

the Attorney General for New Brunswick,

the Attorney General of British Columbia,

the Attorney General for Saskatchewan,

Pathonic Communications Inc.,

Rseau Pathonic Inc., and the Coalition contre

le retour de la publicit destine aux enfantsInterveners

1987:November 19, 20; 1989:April 27.

Present:Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson and LeDain*JJ.

on appeal from the court of appeal for quebec

Constitutional law -- Distribution of legislative powers -- Commercial advertising -- Provincial legislation prohibiting commercial advertising directed at persons under thirteen years of age -- Whether provincial legislation intra vires the provincial legislature -- Colourable legislationImpairment of federal undertakings -- Conflict with federal legislation -- Criminal law -- Constitution Act, 1867, ss. 91, 92 -- Consumer Protection Act, R.S.Q., c. P-40.1, ss. 248, 249 -- Broadcasting Act, R.S.C. 1970, c. B-11, s. 3(c).

Constitutional law -- Charter of Rights -- Application -- Exception where express declaration -- Provincial legislation prohibiting commercial advertising directed at persons under thirteen years of age -- Whether provincial legislation protected from the application of s. 2(b) of the Canadian Charter of Rights and Freedoms by a valid and subsisting override provisionCanadian Charter of Rights and Freedoms, s. 33 -- Consumer Protection Act, R.S.Q., c. C-40.1, ss. 248, 249, 364 -- Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21, ss. 1, 7.

Constitutional law -- Charter of Rights -- Freedom of expressionCommercial advertising -- Provincial legislation prohibiting commercial advertising directed at persons under thirteen years of age -- Scope of freedom of expression -- Whether provincial legislation infringes the guarantee of freedom of expression -- Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 1 of the Canadian Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Consumer Protection Act, R.S.Q., c. P-40.1, ss. 248, 249 -- Regulation respecting the application of the Consumer Protection Act, R.R.Q., c. P-40.1, r. 1, ss. 87 to 91.

Constitutional law -- Charter of Rights -- Reasonable limits --Provincial legislation prohibiting commercial advertising directed at persons under thirteen years of age -- Whether provincial legislation too vague to constitute a limit prescribed by law -- Whether only evidence of legislative objective contemporary with the adoption of the provincial legislation relevant to justifying provincial legislation as a reasonable limit upon freedom of expression -- Canadian Charter of Rights and Freedoms, s. 1 -- Consumer Protection Act, R.S.Q., c. P-40.1, ss. 248, 249.

Constitutional law -- Charter of Rights -- Fundamental justiceLife, liberty and security of person -- Whether corporations may invoke the protection of s. 7 of the Canadian Charter of Rights and Freedoms -- Meaning of the word "Everyone" in s. 7.

Civil rights -- Provincial human rights legislation -- Freedom of expression -- Commercial advertising -- Provincial legislation prohibiting commercial advertising directed at persons under thirteen years of age -- Scope of freedom of expression -- Whether provincial legislation infringes the guarantee of freedom of expression -- Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 9.1 of the Quebec Charter -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 3, 9.1Consumer Protection Act, R.S.Q., c. P40.1, ss. 248, 249 -- Regulation respecting the application of the Consumer Protection Act, R.R.Q., c. P-40.1, r. 1, ss. 87 to 91.

In November 1980, the respondent sought a declaration from the Superior Court that ss. 248 and 249 of the Consumer Protection Act, R.S.Q., c.P-40.1, which prohibited commercial advertising directed at persons under thirteen years of age, were ultra vires the Quebec legislature and, subsidiarily, that they infringed the Quebec Charter of Human Rights and Freedoms.The Superior Court dismissed the action.On appeal, the respondent also invoked the Canadian Charter of Rights and Freedoms which entered into force after the judgment of the Superior Court. The Court of Appeal allowed the appeal holding that the challenged provisions infringed s. 2(b) of the Canadian Charter and that the limit imposed on freedom of expression by ss. 248 and 249 was not justified under s. 1.This appeal is to determine (1) whether ss. 248 and 249 are ultra vires the Quebec legislature or rendered inoperative by conflict with s. 3 of Broadcasting Act, R.S.C. 1970, c. B-11 (You don't have to consider this question); (2) whether they are protected from the application of the Canadian Charter by a valid and subsisting override provision; (3) whether they infringe s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter; and if so, (4) whether the limit imposed by ss. 248 and 249 is justifiable under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter; and (5) whether they infringed s. 7 of the Canadian Charter.

Held (Beetz and McIntyre JJ. dissenting):The appeal should be allowed.

(1)Sections 248 and 249 of the Consumer Protection Act are not ultra vires the provincial legislature nor deprived of effect under s. 3 of the Broadcasting Act.

(2)The override provision in s. 364 of the Consumer Protection Act expired on June 23, 1987.

(3)Sections 248 and 249 infringe s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.

(4)Per Dickson C.J. and Lamer and Wilson JJ. (Beetz and McIntyre JJ. dissenting):Section 248 and 249 are justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

(5)Section 7 of the Canadian Charter cannot be invoked by the respondent.

(1)Constitution Act, 1867

In this part of the judgment the court ruled the Quebec government had the constitutional authority to enact the legislation that is being challenged. In other words, the legislation is intra vires the jurisdiction of Quebec. But that still leave the Charter questions to be resolved.

(2)Application of Canadian Charter

For the reasons given in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, s. 364 of the Consumer Protection Act -- the standard override provision enacted by s. 1 of the Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21 -- came into force on June 23, 1982 and ceased to have effect on June 23, 1987. Since s. 364 was not re-enacted pursuant to s. 33(4) of the Canadian Charter, it follows that ss. 248 and 249 of the Consumer Protection Act are no longer protected from the application of the Canadian Charter by a valid and subsisting override provision.

(3)Freedom of Expression

Per Dickson C.J. and Lamer and Wilson JJ.:When faced with an alleged violation of the guarantee of freedom of expression, the first step is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee.Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct.If the activity falls within the protected sphere of conduct, the second step is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression.If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee.Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes:does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity.If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression.To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. Here, respondent's activity is not excluded from the sphere of conduct protected by freedom of expression.The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respecting the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children.These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.

Per Beetz and McIntyre JJ.:Sections 248 and 249 of the Consumer Protection Act, which prohibit advertising aimed at children, infringe s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.Sections 248 and 249 restrict a form of expression -- commercial expression -- protected by s. 2(b) and s. 3.

(4)Reasonable Limits

Per Dickson C.J. and Lamer and Wilson JJ.:Sections 248 and 249, read together, are not too vague to constitute a limit prescribed by law. Section 249 can be given a sensible construction, producing no contradiction or confusion with respect to s. 248. Further, ss. 248 and 249 do not leave the courts with an inordinately wide discretion. According to s. 248, the advertisement must have commercial content and it must be aimed at those under thirteen years of age, and s. 249 directs the judge to weigh three factors relating to the context in which the advertisement was presented.Sections 248 and 249, therefore, do provide the courts with an intelligible standard to be applied in determining whether an advertisement is subject to restriction.

In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place.However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available.The same is true as regards proof that the measure is proportional to its objective. It is equally possible that a purpose which was not demonstrably pressing and substantial at the time of the legislative enactment becomes demonstrably pressing and substantial with the passing of time and the changing of circumstances. In this case, the question is whether the evidence submitted by the government establishes that children under 13 are unable to make choices and distinctions respecting products advertised and whether this in turn justifies the restriction on advertising put into place.Studies subsequent to the enactment of the legislation can be used for this purpose.

Based on the s. 1 and s. 9.1 materials, ss. 248 and 249 constitute a reasonable limit upon freedom of expression and are justifiable under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.The objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation -- to protect a group that is most vulnerable to commercial manipulation.Children are not as equipped as adults to evaluate the persuasive force of advertising. The legislature reasonably concluded that advertisers should not be able to capitalize upon children's credulity.The s. 1 and s. 9.1 materials demonstrate, on the balance of probabilities, that children up to the age of thirteen are manipulated by commercial advertising and that the objective of protecting all children in this age group is predicated on a pressing and substantial concern.

The means chosen by the government were also proportional to the objective. First, there is no doubt that a ban on advertising directed to children is rationally connected to the objective of protecting children from advertising.The government measure aims precisely at the problem identified in the s. 1 and s. 9.1 materials.It is important to note that there is no general ban on the advertising of children's products, but simply a prohibition against directing advertisements to those unaware of their persuasive intent.Commercial advertisements may clearly be directed at the true purchasersparents or other adults.Indeed, non-commercial educational advertising aimed at children is permitted. Second, the evidence adduced sustains the reasonableness of the legislature's conclusion that a ban on commercial advertising directed to children was the minimal impairment of free expression consistent with the pressing and substantial goal of protecting children against manipulation through such advertising. Where the government is best characterized as the singular antagonist of the individual whose right has been infringed, the courts can assess with a high degree of certainty whether the least intrusive means have been chosen to achieve the government's objective.On the other hand, where the government is best characterized as mediating between the claims of competing individuals and groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources which cannot be evaluated by the courts with the same degree of certainty. Thus, while evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set.This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups.There must nevertheless be a sound evidentiary basis for the government's conclusions. Third, there was no suggestion here that the effects of the ban are so severe as to outweigh the government's pressing and substantial objective.Advertisers are always free to direct their message at parents and other adults.They are also free to participate in educational advertising.The real concern animating the challenge to the legislation is that revenues are in some degree affected.This only implies that advertisers will have to develop new marketing strategies for children's products.

Per Beetz and McIntyre JJ. (dissenting):Sections 248 and 249 of the Consumer Protection Act are not justified under s. 1 of the Canadian Charter or s. 9(1) of the Quebec Charter.The promotion of the welfare of children is certainly an objective of pressing and substantial concern for any government, but it has not been shown in this case that their welfare was at risk because of advertising directed at them. Further, the means chosen were not proportional to the objective. A total prohibition of advertising on television aimed at children below an arbitrarily fixed age makes no attempt to achieve of proportionality.

Freedom of expression is too important a principle to be lightly cast aside or limited. Whether political, religious, artistic or commercial, freedom of expression should not be suppressed except where urgent and compelling reasons exist and then only to the extent and for the time necessary for the protection of the community. This is not such a case.

(5)Fundamental Justice

Respondent's contention that ss. 248 and 249 of the Consumer Protection Act infringe s. 7 of the Canadian Charter cannot be entertained.The proceedings in this case are brought only against the company and not against any individuals. A corporation, unlike its officers, cannot avail itself of the protection offered by s. 7.The word "Everyone" in s. 7, read in light of the rest of the section, excludes corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and includes only human beings.

QUESTIONS:

1. This case involved legal arguments based both on the Canadian Charter of Rights and on the Quebec Charter of Rights and Human Freedoms. What is this latter Charter and what is it meant to protect? 3 marks

1. What was the Court's Charter decision with respect to 2(b)? 2 marks