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

Irwin Toy Ltd.’s challenge of a Quebec law prohibiting advertising targeted at children under thirteen years of age led the Supreme Court of Canada to an extensive analysis of the meaning of freedom of expression, and what limits on expression can be tolerated in a free and democratic society.

The court defined expression as any activity that “attempts to convey meaning,” and found that advertising was such an activity, and therefore protected by Section 2(b) of the Charter. Quebec’s prohibition on advertising to children was therefore found to infringe on the Charter, but the majority of the court also found the law to be a “reasonable limit” to the right to freedom of expression.

The Supreme Court’s decision in this regard was based in part on reports and studies which found that children tend to be manipulated by advertising:

The Report thus provides a sound basis on which to conclude that television advertising directed at young children is per se manipulative. Such advertising aims to promote products by convincing those who will always believe.

This finding, together with Irwin Toy’s inability to provide a convincing reason why they had to market to children in order to carry on their business, led the Supreme Court to the conclusion that the Quebec law prevented more harm than it caused, and was therefore “demonstrably justifiable in a free and democratic society.”

Irwin Toy Ltd. v. Quebec laid the groundwork for a utilitarian approach to freedom of expression, where the harms of a given law are weighed against the harms it aims to prevent. Sadly, the concept of freedom of expression as a “fundamental freedom” is often lost in this process.

Decided by the Supreme Court of Canada on April 27, 1989
Click here for the full text of the decision

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Filed under Section 2: Fundamental Freedoms, Section 2(b): Freedom of Expression

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