The Facts: Quebec’s Ban on Advertising to Children
In the late 1970s, Quebec passed strong consumer protection laws banning commercial advertising directed at children under 13 years of age. Irwin Toy, a toy company, challenged this law, arguing it restricted their freedom of expression. The case forced the Supreme Court to answer foundational questions: Does the Charter protect any activity that conveys meaning, even a commercial sales pitch? And is protecting children a sufficient reason for the government to silence that expression?

What is Freedom of Expression?
“It’s the freedom to express oneself in the public world,” Professor Moon explains. The Court in Irwin Toy defined it broadly: “Any act that is intended to convey meaning to an audience is an act of expression.” This protects a communicative relationship between speaker and audience — “not just leave me alone, don’t interfere with me State. It is here is a relationship that the State should not interfere with.”

The Parking Lot Example
To illustrate how broadly the Court defined expression, Professor Moon points to their famous example: “If I object to how parking spaces are allocated and, in order to protest that, I park my car against the rules — that’s an act of expression, because I’m intending to convey a message.” Ordinarily, how you park isn’t expression; but if done as protest, it becomes protected.

Freedom of Expression Before the Charter
Even before 1982, expression wasn’t unprotected. Professor Moon explains how courts used the federal division of powers to protect political speech: “When a province restricted political speech, that measure fell outside their jurisdiction… Political speech was of national significance, indivisible. You couldn’t have a democratic parliamentary system nationally if speech was restricted anywhere in the country.”

The Two-Step Charter Analysis
Every Section 2(b) case involves two steps:

1. Has the right been breached? — Is this expression that the State has restricted?
2. Is the restriction justified under Section 1? — Is it a reasonable limit demonstrably justified in a free and democratic society?

Because the Court defined expression so broadly, “almost all the significant analysis occurs at the Section 1 stage.”

The Irwin Toy Test for Section 2(b)
Professor Moon walks through the Court’s framework:

1. Is it an act of expression? — Any act intended to convey meaning to an audience
2. Does it take a violent form? — Violence is excluded (but not advocacy of violence)
3. Is it in certain excluded locations? — Government property not generally open for public communication
4. What is the law’s purpose? — If the purpose is to restrict expression, there’s automatically a breach; if the effect is merely incidental, the claimant must show their expression advances underlying values

Commercial Expression: Protected but Not “Core Value”
The Court held that commercial advertising is protected expression. But Professor Moon explains the nuance: “Political speech, that’s core value expression. It clearly advances the values underlying our commitment to free speech — the importance of speech to democratic governance. Commercial advertising? It’s protected, but it doesn’t as clearly advance those values. So it may be easier to justify restricting it.”

The Section 1 Analysis in Irwin Toy
The Court found:

• Pressing and substantial purpose — Yes, protecting young people from manipulation
• Rational connection — Yes, the ban connects to protecting children
• Minimal impairment — This was contested; Irwin Toy argued the law was overbroad because studies showed older children (ages 7-13) can recognize advertising’s persuasive intent

The Court showed deference to the legislature: “We need to show some deference when they’re assessing complicated social science evidence. We also should show deference when it’s attempting to protect a vulnerable group.”

Keegstra and the “Contextual Approach”
In R. v. Keegstra (1990), the hate speech case, the Court built on Irwin Toy by articulating the “contextual approach”: while all non-violent expression is protected under Section 2(b), some forms are more valuable than others at the Section 1 stage.

“Hate speech almost invariably involves claims that are false. It doesn’t work towards realization of truth. It undermines democracy and the standing of some in the community as citizens. So Chief Justice Dickson, writing for the majority, starts by saying this is less valuable expression. The State still has to justify its restriction, but it may be easier to do so.”

Hate Speech vs. Offensive Speech
Professor Moon emphasizes a crucial distinction: “There could be a lot of bigoted speech out there, but it’s not necessarily extreme enough to count as hate speech falling within the scope of the Criminal Code prohibition. The law restricts only a very narrow category of extreme speech.”

“Expression, no matter how offensive, unpopular, or disturbing, cannot be deprived of its Section 2(b) protection.”

Compelled Speech: The Right to Silence
Freedom of expression also protects the right not to speak. Professor Moon discusses West Virginia v. Barnette (US, 1943), where Jehovah’s Witness children were punished for refusing to salute the flag: “To be compelled to express a view that was not your view” violated free speech.

“Speech is so important to my sense of who I am, how I present myself in the world. It’s really invasive when I am required to utter words that are not mine and that don’t represent my views.”

Bubble Zones and Harassing Speech
Professor Moon addresses current debates: “We’re already witnessing this whole debate about bubble zones — initially around abortion clinics and now around places of worship and synagogues. We don’t want to cleanse the public sphere of all communication I might not want to hear. But individuals can and should be protected from harassing speech.”

The Lasting Impact of Irwin Toy
“The Court makes clear they understand the scope of freedom of expression very broadly. It includes commercial advertising. It includes speech many of us might regard as offensive or hurtful. Because they’ve defined it so broadly, almost always the significant analysis of whether a law is constitutional occurs under Section 1.”

Professor Moon offers a provocative reflection: “I do wonder about a law that aims to restrict advertising directed at children that the State believes is manipulative in character — whether that should count as expression in the first place.”