Part 3 of a 5 Part Series:
Section 2(b) Building Blocks: Irwin Toy and the contextual approach
The third in this series of blogs on freedom of expression under the Charter focuses on s.2(b)’s building blocks. These foundations are found on both sides of the Charter equation: a definition of expressive freedom under the guarantee and standard of justification to determine reasonable limits under s.1. The bedrock of s.2(b) methodology was set during the Charter’s first decade, when Irwin Toy Ltd. v. Quebec proposed a framework for s.2(b) analysis and Edmonton Journal v. Alberta introduced the idea of a “contextual approach.” Both were decided in 1989, and each marked a pivotal development that set s.2(b)’s path in a particular direction. The principles embedded in these landmarks have been persistent over time and, at this checkpoint forty years on, remain authoritative. Regrettably, they have not served s.2(b)’s guarantee of expressive freedom especially well.
The Quebec Trilogy: the Bill 101 cases and Irwin Toy
Late in 1987, the Court heard a trilogy of appeals from Quebec that were fraught with significance. The Bill 101 cases – Ford v. Quebec and Devine v. Quebec – set Quebec’s “visage linguistique” and the French-only outdoor sign law against the right of non-francophone members of the community to display signs in other languages. Meanwhile, Irwin Toy seemingly posed the more modest question whether s.2(b) protects commercial expression, including the right of corporations to aim advertising at children. To avoid a potential quorum issue, the Court expedited the Bill 101 cases and postponed decision in Irwin Toy.
Late in 1988, the Court invalidated the outdoor sign law and the province moved immediately to re-enact the legislation and deploy the legislative override under s.33 of the Charter. Doing so had poignant implications for the Meech Lake Accord, which was under ratification at the time and then failed in 1990. Premier Bourassa’s decision to use s.33’s override to protect French language rights was conflated with concerns about the MLA’s distinct society clause. At that juncture in post-patriation history, the Bill 101 cases could hardly have been more significant for Quebec.
Irwin Toy was released a few months later, after Quebec invoked s.33, and what a difference a few months made. While Ford and Devine applied a robust standard of justification under s.1, Irwin Toy backed away, proposing an approach that eased the state’s burden and enabled the Court to uphold the legislation. It is speculative whether the result in Irwin Toy might have been different if the Quebec trilogy had been decided together. Still, comparing the s.1 discussion before and after the override makes it difficult to imagine the Court releasing three decisions that prescribed such mis-aligned standards of justification.
The Bill 101 cases made it unnecessary to address the status of commercial advertising in Irwin Toy, but the Court went ahead, providing a landmark interpretation and proposing a two-part test for breach of s.2(b)’s guarantee of expressive freedom.
Step 1’s definition of expression as “any attempt to convey meaning” is unlimited and inclusionary, conferring prima facie protection on all content, regardless how odious or offensive. Under that view, expressive content receives indiscriminate protection under s.2(b) – to avoid censorial exclusions – and the question of limits is reserved to s.1. That part of Irwin Toy, which prohibits the state from discriminating against expression because of its content, is solidly grounded in principle.
Still, there were problems because Irwin Toy both simplified and complicated the question of breach. First, the conveys-meaning definition of expression addressed a factual question – what is expression? – that obviated the need for qualitative discussion of the violation. Put another way, step 1 all but conceded the question of breach and required little or no discussion of expressive freedom. Under a prima facie concept of breach, the nature or severity of the infringement did not matter. Yet a generous interpretation of s.2(b)’s guarantee of expressive freedom need not be simple. The problem was that Irwin Toy’s oversimplification of the s.2(b) analysis shifted the momentum to s.1 and the question of justifiable limits. The impact of the violation and its consequences for expressive freedom were lost in that process.
Irwin Toy’s second step grafted a supplementary test onto the conveys-meaning test, which took the form of a purpose-effects analysis. In contrast to the content neutrality of step 1, the purpose-effects test imposed a burden on some to prove that their expressive activity serves s.2(b)’s aspirational values (i.e., truth seeking, democratic self-government, self fulfillment). That created a hierarchy under s.2(b) that depended on the nature of the breach. While purposeful infringements went directly to s.1, a different approach applied when government action adversely affected expressive freedom. More onerously, a breach under the effects test required proof that expressive content served s.2(b)’s underlying values. Not only did that introduce a contradiction between step 1’s content-neutral and step two’s content-grounded conceptions of entitlement, it lodged the idea that the scope of s.2(b) might depend on whether its content or message are seen as valuable.
Under s.1, the Court clawed the standard of justification back, altering the Oakes test to make it easier to uphold limits. Unlike Ford and Devine, which applied Oakes in a rigorous manner, Irwin Toy created a double standard of justification. According to this hierarchy, a strict version of Oakes would apply when the state acted as the “singular antagonist” of the individual – as in the criminal justice system – but an attenuated standard would suffice when the state mediated between competing social interests or acted to protect the vulnerable. Though the mechanism was only partly successful, Irwin Toy’s dichotomous standard of justification validated the idea that the Oakes test could be changed to avoid protecting expressive freedom under s.1.
It bears noting that the Court’s landmark in Irwin Toy upheld the infringement of expressive freedom. With two in dissent and only three members of the Court signing the majority opinion, Irwin Toy could not be described as a strong opinion. If initially unclear whether s.2(b)’s interpretation might be re-considered by a full panel of the Court – and with the exception of the purpose-effects test – Irwin Toy’s s.2(b) framework has been resilient over the years. At the same time, the Court’s antagonist-mediator model was less successful, and was quickly supplanted by the contextual approach.
The idea of a contextual approach, which appeared in Justice Wilson’s sole concurrence in Edmonton Journal v. Alberta later in the same year, was a turning point for s.2(b).
Justice Wilson, the contextual approach, and R. v. Keegstra
Bertha Wilson was a Charter loner, known for her sole concurrences as well as for her dissenting opinions, and her concurrence in Edmonton Journal was one of her most influential. Within months of Irwin Toy, where she was one of three judges in the majority, she expressed dissatisfaction with an abstract and ennobled approach to the concept of expressive freedom. In Edmonton Journal Wilson J. agreed that statutory restrictions on reports of specified domestic proceedings violated the open justice principle but wrote separately to explain why setting s.2(b)’s aspirational values against competing interests was not a fair contest. In particular, she complained that an abstract approach to expressive freedom advantaged s.2(b), tipping the scales in the guarantee’s favour and against competing interests.
Justice Wilson’s contextual approach comprised two essential elements. First, her approach would place the interests at stake “in sharp relief”, allowing an analytical juxtaposition or comparison that was not available under an abstract conception of expressive freedom. Without naming it, Wilson J. was reaching, intuitively, for the final step of proportionality under Oakes, where the salutary benefits and deleterious consequences of a violation confront one another. Second, she made the pivotal observation that expressive activity is not monolithically valuable, and that the degree to which it should be protected in particular circumstances will depend on its context. Equating the content and context of expression in that manner pointed the way toward an approach that transparently judged the relative merits of expressive activity.
Wilson J.’s Edmonton Journal concurrence stopped short of proposing a concrete doctrinal form for the contextual approach. That step was taken the following year in R. v. Keegstra, another turning point for s.2(b) in which a Court divided 4-3 but upheld the Criminal Code’s hate propaganda provision. According to Irwin Toy, that provision was subject to a strict s.1 test because the state acted as the singular antagonist of individuals in criminalizing expression. Though both were part of Irwin Toy’s majority, Dickson CJ and Wilson J abandoned that concept, and the Chief Justice instead developed a “contextual approach” that tested expressive content against s.2(b)’s underlying values. In concept, that approach notionally placed expressive content along a high-low spectrum of value, permitting the Court to attenuate the standard of justification for “low value” expression. In this, Keegstra marked a crucial step in s.2(b)’s evolution, introducing a mechanism for testing expressive content against abstract values to lower the standard of justification under s.1.
In short, that is how the contextual approach enabled the Court to measure expressive activity against s.2(b)’s underlying values – of truth-seeking, democratic self-government, and self fulfillment – to determine whether its content warranted protection under s.1. Oddly, the contextual approach is a contradiction in terms because it uses abstract values to discount particular expressive content. As such, it provided a pretext and tool for engaging in the kind of content discrimination that Irwin Toy expressly prohibited. In Keegstra, the idea of context enabled the Court to relax the s.1 test and uphold the Criminal Code limits because hate propaganda is low-value expression.
Ironically, the genesis of this approach traces to Wilson J.’s lingering disappointment after the Labour Trilogy refused to constitutionalize labour relations entitlements under s.2(d)’s guarantee of associational freedom. In short order, the contextual approach was transformed into a doctrine and grafted onto the Oakes test, where it enabled the Court to uphold limits on “low value” expression. The contextual approach has dominated the s.2(b) jurisprudence since Keegstra was decided in 1990.
The contextual approach and its legacy
The contextual approach infuses the s.2(b) jurisprudence. Following Keegstra, the Court employed the idea of value-assessment or content discrimination to uphold a variety of limits on expressive activity. Under this pattern, the jurisprudence evaluated objectionable or offensive expression against s.2(b)’s lofty values and consistently found limits on low value expression easy to justify under s.1.
Examples of this methodology include the Criminal Code’s provisions on obscenity and child pornography (R. v. Butler; Little Sisters Book & Art Emporium v. Canada; R. v. Sharpe); defamatory libel and common law defamation (R. v. Lucas; Hill v. Church of Scientology of Canada); human rights legislation (Ross v. New Brunswick School District No. 15; Saskatchewan (Human Rights Commission v. Whatcott); and Holocaust denial and tobacco advertising (dissenting opinions in R. v. Zundel, RJR-MacDonald v. Canada). Though the concept of a high-low spectrum suggested that high-value expression would be rigorously protected under s.1, the Court deferred to Parliament, relaxed the standard of justification, and upheld limits on electoral expression (Harper v. Canada; R. v. Bryan). Even in cases that engaged s.2(b)’s core values, the Court found ways to relax the requirements of s.1 and uphold limits.
Meanwhile, the Court bestowed singular protection on labour expression, including leafletting, picketing, and secondary picketing, describing it as high value expression and entitled to vigilant protection under s.1. (See UFCW, Local 518 v. Kmart Canada Ltd., RWDSU, Local 558 v. Pepsi-Cola Canada).
In principle, the contextual approach undermines s.2(b)’s guarantee of expressive freedom in two central ways. First, it confuses and conflates the concepts of value and harm, at times assuming that expression perceived as valueless is also harmful, and more generally treating value as a proxy for harm. This methodology profoundly and unavoidably compromises s.2(b) and its guarantee of expressive freedom. Second, the contextual approach suppresses the constitutional violation of freedom of expression, essentially rendering it invisible and removing it from consideration under s.1. Once the Court declares that expressive content lacks value the analysis is done. There is little need to discuss the nature and severity of the infringement, the insult to freedom, or the violation’s impact on s.2(b).
The s.2(b) jurisprudence is complex, presenting diverse branches that have evolved over the years, not all of which can be considered in this blog series. The jurisprudence is centered on and pivots on the building blocks that were set in place with the 1989 decision in Irwin Toy and introduction of the contextual approach. This blog has briefly explained the analytical flaws of this methodology, under s.2(b) (Irwin Toy) as well as s.1 (the contextual approach). The point is that, as long as it remains in place, the s.2(b) jurisprudence will be hobbled by the contradictions of Irwin Toy and a s.1 methodology that is unsound in principle and incapable of protecting s.2(b)’s guarantee of expressive freedom.1
Irwin Toy and the contextual approach provide the general framework for s.2(b) analysis and are accompanied and supplemented by several issue-specific doctrines. The next blog considers two very important branches of s.2(b) doctrine: the first is the open court or open justice principle, and the second concerns the status of the press and media under s.2(b) of the Charter.
1 Elsewhere I have outlined a proposal to overhaul this methodology. Among other things, the proposal would eliminate the purpose-effects test and revise the analysis of breach under s.2(b), and then eliminate the contextual approach under s.1 and explain how the Oakes analysis must be revised to adequately protect freedom of expression. See “Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter” (2022), 105. S.C.L.R.(2d) 120-51; SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4132543