One of the most important questions to be litigated was what was protected as "expression". In
Irwin Toy ltd. v. Quebec (Attorney general), [1989] 1 S.C.R. 927, the Supreme Court ruled that anything that "conveyed meaning" was expression. This meant virtually any way that someone chose to express themselves, whether through words, acts, or depictions. Anything that conveyed meaning and was not in "an unacceptable form" (i.e., violence or threats of violence), was protected by the
Charter.
The second question the Supreme Court answered in
Irwin Toy was what constituted a violation of the right to free expression. If the purpose of the government restriction on expression was to restrict certain content, then that restriction violates the
Charter. This includes restricting certain methods of conveying meaning that are tied to the content itself (e.g., instead of banning rock music--the content--, banning FM radio-- the method of conveying the music).
If the purpose of the limit is not to restrict content but to prevent certain harmful effects from the way the content is physically expressed, then the court must examine the effects of the restriction. If the restriction has the effect of frustrating "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing", then the restriction violates the
Charter. The burden of proof is then on the government to show that the restriction is reasonable under the Oakes test. If it is not reasonable, then the restriction on expression is unconstitutional.
