Section Two of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada
's Charter of Rights
that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada
, regardless of whether they are a Canadian citizen, or an individual or corporation
. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression
, freedom of religion
, freedom of thought
, freedom of belief, freedom of peaceful assembly
, and freedom of association
.
Section 1
of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by the notwithstanding clause
of the Charter.
As a part of the Charter and of the larger Constitution Act, 1982
, section 2 took legal effect on April 17, 1982. Many of its rights, however, have roots in Canada in the 1960 Canadian Bill of Rights
(although this law was of limited effectiveness), and in traditions under a theorized Implied Bill of Rights
. Many of the freedoms, such as freedom of expression, have also been at the centre of federalism
disputes.
, freedom of religion in Canada may have originated as early as 1759, when French Canadian
Roman Catholics were allowed rights of worship by their British conquerors; this was later reconfirmed in 1774 in the Quebec Act
. Later the Constitution Act, 1867
provided for denominational school rights (these are reaffirmed by section 29 of the Charter
). Discussions of church-state relations also took place in the Guibord case
of 1874. In 1955, the Supreme Court ruled in Chaput v. Romain, regarding Jehovah's Witnesses
, that different religions have rights, based upon tradition and the rule of law
(at the time no statutes formed the basis for this argument).
Religious freedom was later included in the Canadian Bill of Rights. Its effectiveness was limited, however. When Sunday closing laws compelling respect for the Christian Sabbath were challenged in R. v. Robertson and Rosetanni (1963), Justice Ritchie of the Supreme Court found that non-Christians merely lost money when denied rights to work on Sunday and were otherwise free to believe in and observe their own religions.
In Syndicat Northcrest v. Amselem
(2004), the Supreme Court drew up a definition of freedom of religion under the Quebec Charter of Human Rights and Freedoms
, mindful of the overlap with section 2(a). The majority found freedom of religion encompasses a right to religious practices if the individual has a sincere belief that the practice is connected to religion. It would not matter whether the practice was needed according to religious authority. If courts can believe an individual is telling the truth in saying a practice is connected to religion, the courts then ask whether the infringement of freedom of religion is severe enough to trigger section 2. The Court also said religious beliefs are vacillating, so courts trying to determine an individual belief should be mindful that beliefs may change. Following this test in Multani v. Commission scolaire Marguerite‑Bourgeoys (2006), the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan
(dagger) in school.
speculated this would include a right to atheism
, despite the preamble to the Canadian Charter of Rights and Freedoms
, which recognizes the "supremacy of God." The right has not spawned a great deal of case law, although Justice Bertha Wilson
did rely on it in her opinion in R. v. Morgentaler
(1988). Finding laws against abortion to be a breach of the rights to liberty
and security of the person under section 7 of the Charter
, Wilson then argued this infringement could not be justified as being consistent with fundamental justice
. The legal protections found under fundamental justice could be defined as including other rights under the Charter, and in particular abortion laws breached freedom of conscience. As she wrote, the "decision whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience." She then said "conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a)." No other judges signed Wilson's opinion.
Jean Chrétien
, who was the attorney general during negotiations of the Charter, later recalled in his memoirs that freedom of conscience was nearly excluded from the Charter. The federal and provincial negotiators found the right too difficult to define, and Chrétien eventually agreed to remove it. A legal advisor for the federal government, Pierre Genest, then kicked Chrétien's chair, prompting Chrétien to joke, "I guess we leave it in. Trudeau's
spy just kicked me in the ass."
can validly create under section 91(27) of the Constitution Act, 1867
. Switzman v. Elbling
(1957) is an example of a case in which this was discussed. An Implied Bill of Rights theory further stated governments were limited in their abilities to infringe upon free speech by virtue of the preamble
of the Constitution Act, 1867. This preamble states Canada's constitution would be based upon Britain's, and Britain had limited free speech in 1867. Furthermore, free speech is considered to be necessary for a parliamentary government to function.
Free speech was later included in the Canadian Bill of Rights
.
. In Native Women's Association of Canada v. Canada
(1994), the Court considered a claim that the government had to financially support an interest group in constitutional negotiations, as it had supported others. Section 28
(sexual equality under the Charter) was used to reinforce this argument, since the rights claimants were an interest group. Still, while the Supreme Court agreed discussions with the government is "unquestionably" a form of expression, the government did not seem to be guilty of suppressing any expression and thus the claim was dismissed.
A law's purpose can limit the right either through limiting the content or form of expression. Limits on content are where the meaning of the expression is specifically forbidden by the law, such as hate-speech law, and is the most easily identifiable form of limitation. Limiting the form of the expression can often invoke section 2(b) as it will often have the effect of limiting the content as well.
Where a law does not intend to limit the freedom of expression it may still infringe section 2(b) through its effects. A law will be found to restrict expression if it has the effect of frustrating "the pursuit of truth
, participation in the community, or individual self-fulfillment and human flourishing".
The protection of commercial expression was first established in Ford v. Quebec (1988) where the Court struck down a Quebec law requiring all signs to be exclusively in French. This was soon followed by Irwin Toy v. Quebec
where the Court found that Quebec law prohibiting advertising to children to violate section 2(b) but was saved under section 1.
The Supreme Court has also found that restrictions on advertising by professionals to be protected. As well, even communications for the purpose of prostitution was found to be protected as commercial expression.
There are not too many instances of limiting primary picketing. Typically, the debate has been over whether secondary picketing can be restricted; this practice of picketing businesses not directly involved in a labour dispute has in the past been banned under the common law. The most significant decision on limiting primary picketing is BCGEU v. BC (1988) where employees at the British Columbia Supreme Court, who were protesting as part of a province-wide public service employee strike, were ordered back to work by the Chief Justice of the court. The order was found to clearly violate section 2(b) but the Supreme Court upheld it on section 1.
(1987), the Supreme Court found that despite being written as a separate right, it was closely related to freedom of expression. The Nova Scotia Supreme Court
defined it in Fraser et al. v. A.G.N.S. et al. (1986) as including rights to meet as part of a committee or as workers. If there are membership fees to attend a meeting, prohibitions on being able to spend money for membership would be an abridgement of the right to peaceful assembly. In 2011, Occupy Canada
's protests in public parks raised questions of whether their eviction was prohibited by freedom of assembly, as well as expression and association.
context where employees are given the right to associate with certain unions
or other similar group to represent their interests in labour disputes or negotiations.
It is important to note that this right only protects the right of individuals to form associations and not associations themselves. Consequently, government legislation affecting the powers of established labour associations do not necessarily invoke section 2(d). It is only where legislation restricts the associative nature of an activity will section 2 be invoked. However, in a landmark decision, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (2007), the Supreme Court ruled that freedom of association guaranteed by s.2(d) includes a procedural right to collective bargaining. The Court ruled in this case that legislation that "substantially interferes" with the process of collective bargaining is a s.2(d) infringement. The test for "substantial interference" is twofold: (1) the importance of the matter affected to the process of collective bargaining, and more specifically, the capacity of union members to come together and pursue collective goals in concert; and (2) the manner in which the measure impacts on the collective right to good faith negotiation and consultation. The decision in the Health Services case overturns jurisprudence arising from the so-called "labour trilogy" cases of 1987 that found that s.2(d) did not include a right to collective bargaining.
Typically, where a union is denied a right it does not preclude the employees from forming a separate association. In Delisle v. Canada
(1999), members of the Royal Canadian Mounted Police
were excluded from the public services legislation. The Supreme Court held that they were not precluded from forming their own association outside of the Act. However, in contrast the decision of Dunmore v. Ontario indicated that agricultural workers who were excluded from provincial labour relations legislation were entitled to be included because individually they were unable to form their own associations, and consequently, this imposed a duty upon the government to include them.
The freedom of association also includes the freedom not to associate. In certain employment circumstances employees are required to contribute to a union as conditions of their employment (see Rand formula
). However, mandatory associations do not invoke section 2(d) in and of themselves. In Lavigne, the Court found that the right not to be associated extended only to where the association supported causes that went beyond what is necessary for employee representation. More generally, the Supreme Court had stated that the right is violated only when the mandatory association imposes "ideological conformity". Such violations have also mostly been found by the Supreme Court to be justified under section 1
, resulting in a right not to associate that has more theorical than practical effects.
In R. v. Advance Cutting & Coring Ltd. (2001), the Supreme Court was called to examine the constitutional validity of a Quebec
law that required all persons working in the province's construction industry to join a designated union. Eight of nine judges (Justice Claire L'Heureux-Dubé
dissenting) confirmed that section 2 includes, to at least some degree, the negative right to not associate. With a majority of 5 judges to 4, the Court determined that the law at issue violated this right. But with the same majority (judge Frank Iacobucci
"switching camps" on the two issues and citing a "unique and complex historical context" in Quebec), the Court deemed the law to be justified in a free and democratic society under section 1 and thus constitutional.
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
's Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, regardless of whether they are a Canadian citizen, or an individual or corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, freedom of thought
Freedom of thought
Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
, freedom of belief, freedom of peaceful assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, and freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
.
Section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
of the Charter.
As a part of the Charter and of the larger Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
, section 2 took legal effect on April 17, 1982. Many of its rights, however, have roots in Canada in the 1960 Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
(although this law was of limited effectiveness), and in traditions under a theorized Implied Bill of Rights
Implied Bill of Rights
The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada...
. Many of the freedoms, such as freedom of expression, have also been at the centre of federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
disputes.
Text
Under the heading of "Fundamental Freedoms" the section states:Background
According to Beverley McLachlinBeverley McLachlin
Beverley McLachlin, PC is the Chief Justice of Canada, the first woman to hold this position. She also serves as a Deputy of the Governor General of Canada.-Early life:...
, freedom of religion in Canada may have originated as early as 1759, when French Canadian
French Canadian
French Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...
Roman Catholics were allowed rights of worship by their British conquerors; this was later reconfirmed in 1774 in the Quebec Act
Quebec Act
The Quebec Act of 1774 was an Act of the Parliament of Great Britain setting procedures of governance in the Province of Quebec...
. Later the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
provided for denominational school rights (these are reaffirmed by section 29 of the Charter
Section Twenty-nine of the Canadian Charter of Rights and Freedoms
Section Twenty-nine of the Canadian Charter of Rights and Freedoms is the section of Charter that most specifically addresses rights regarding denominational schools and separate schools...
). Discussions of church-state relations also took place in the Guibord case
Guibord case
Brown v. Les Curé et Marguilliers de l'oeuvre et de la Fabrique de la Paroisse de Montréal, better known as the Guibord case, was a famous decision in 1874 by the Judicial Committee of the Privy Council in an early Canadian legal dispute over the relationship between church and state...
of 1874. In 1955, the Supreme Court ruled in Chaput v. Romain, regarding Jehovah's Witnesses
Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
, that different religions have rights, based upon tradition and the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
(at the time no statutes formed the basis for this argument).
Religious freedom was later included in the Canadian Bill of Rights. Its effectiveness was limited, however. When Sunday closing laws compelling respect for the Christian Sabbath were challenged in R. v. Robertson and Rosetanni (1963), Justice Ritchie of the Supreme Court found that non-Christians merely lost money when denied rights to work on Sunday and were otherwise free to believe in and observe their own religions.
Definition
Freedom of religion under section 2(a) of the Charter was first seriously considered by the Supreme Court in the 1985 case R. v. Big M Drug Mart. In that case, Chief Justice Brian Dickson wrote that this freedom at least includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination." Freedom of religion would also prohibit imposing religious requirements. The immediate consequence of section 2, in this case, was the abolishment of federal Sunday closing laws.In Syndicat Northcrest v. Amselem
Syndicat Northcrest v. Amselem
Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 was a decision of the Supreme Court of Canada that attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and section 2 of the Canadian Charter of Rights and Freedoms...
(2004), the Supreme Court drew up a definition of freedom of religion under the Quebec Charter of Human Rights and Freedoms
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
, mindful of the overlap with section 2(a). The majority found freedom of religion encompasses a right to religious practices if the individual has a sincere belief that the practice is connected to religion. It would not matter whether the practice was needed according to religious authority. If courts can believe an individual is telling the truth in saying a practice is connected to religion, the courts then ask whether the infringement of freedom of religion is severe enough to trigger section 2. The Court also said religious beliefs are vacillating, so courts trying to determine an individual belief should be mindful that beliefs may change. Following this test in Multani v. Commission scolaire Marguerite‑Bourgeoys (2006), the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan
Kirpan
The kirpan is a ceremonial sword or dagger carried by orthodox Sikhs. It is a religious commandment given by Guru Gobind Singh at the Baisakhi Amrit Sanchar in CE 1699, all baptised Sikhs must wear a kirpan at all times....
(dagger) in school.
Freedom of conscience
In addition to freedom of religion, section 2(a) also guarantees freedom of conscience. Professor Peter HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
speculated this would include a right to atheism
Atheism
Atheism is, in a broad sense, the rejection of belief in the existence of deities. In a narrower sense, atheism is specifically the position that there are no deities...
, despite the preamble to the Canadian Charter of Rights and Freedoms
Preamble to the Canadian Charter of Rights and Freedoms
The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982...
, which recognizes the "supremacy of God." The right has not spawned a great deal of case law, although Justice Bertha Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
did rely on it in her opinion in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988). Finding laws against abortion to be a breach of the rights to liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of the person under section 7 of the Charter
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, Wilson then argued this infringement could not be justified as being consistent with fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
. The legal protections found under fundamental justice could be defined as including other rights under the Charter, and in particular abortion laws breached freedom of conscience. As she wrote, the "decision whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience." She then said "conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a)." No other judges signed Wilson's opinion.
Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
, who was the attorney general during negotiations of the Charter, later recalled in his memoirs that freedom of conscience was nearly excluded from the Charter. The federal and provincial negotiators found the right too difficult to define, and Chrétien eventually agreed to remove it. A legal advisor for the federal government, Pierre Genest, then kicked Chrétien's chair, prompting Chrétien to joke, "I guess we leave it in. Trudeau's
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
spy just kicked me in the ass."
Freedom of expression
Freedom of expression (s. 2(b)) is perhaps one of the most significant Charter rights in influencing Canadian society. Justice Peter Cory once wrote that it "is difficult to imagine a guaranteed right more important to a democratic society." The section has been at the centre of a great amount of case law.Background
Freedom of speech had a limited background in Canada. It has been an issue in federalism disputes, as provincial legislation infringing upon free speech has been taken as criminal legislation, which only the Parliament of CanadaParliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
can validly create under section 91(27) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. Switzman v. Elbling
Switzman v. Elbling
Switzman v. Elbing [1957] SCR 285 was a landmark Supreme Court of Canada decision where the Court struck down Quebec's Padlock Law.Max Bailey, was a resident of a Park Avenue apartment in Montreal...
(1957) is an example of a case in which this was discussed. An Implied Bill of Rights theory further stated governments were limited in their abilities to infringe upon free speech by virtue of the preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
of the Constitution Act, 1867. This preamble states Canada's constitution would be based upon Britain's, and Britain had limited free speech in 1867. Furthermore, free speech is considered to be necessary for a parliamentary government to function.
Free speech was later included in the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
.
Definition
The meaning of "expression" within section 2(b) has been read broadly as including any activity that conveys, or attempts to convey, meaning to the exception of acts of violence and threats of violence. The Courts, however, have tried to maintain content neutrality by not considering the value of the expression. Instead, the content is only examined during the section 1 analysis.Negative and positive rights
Freedom of expression is primarily seen as a negative rightNegative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
. In Native Women's Association of Canada v. Canada
Native Women's Association of Canada v. Canada
Native Women's Association of Canada v. Canada, [1994] 3 S.C.R. 627, was a decision by the Supreme Court of Canada on section 2, section 15 and section 28 of the Canadian Charter of Rights and Freedoms, in which the Court decided against the claim that the government of Canada had an obligation to...
(1994), the Court considered a claim that the government had to financially support an interest group in constitutional negotiations, as it had supported others. Section 28
Section Twenty-eight of the Canadian Charter of Rights and Freedoms
Section Twenty-eight of the Canadian Charter of Rights and Freedoms is a part of the Constitution of Canada's Charter of Rights. It does not contain a right so much as it provides a guide as to how to interpret rights in the Charter...
(sexual equality under the Charter) was used to reinforce this argument, since the rights claimants were an interest group. Still, while the Supreme Court agreed discussions with the government is "unquestionably" a form of expression, the government did not seem to be guilty of suppressing any expression and thus the claim was dismissed.
Limiting the right
A law will be found to violate the freedom of expression where the law either has the purpose or effect of violating the right.A law's purpose can limit the right either through limiting the content or form of expression. Limits on content are where the meaning of the expression is specifically forbidden by the law, such as hate-speech law, and is the most easily identifiable form of limitation. Limiting the form of the expression can often invoke section 2(b) as it will often have the effect of limiting the content as well.
Where a law does not intend to limit the freedom of expression it may still infringe section 2(b) through its effects. A law will be found to restrict expression if it has the effect of frustrating "the pursuit of truth
Truth
Truth has a variety of meanings, such as the state of being in accord with fact or reality. It can also mean having fidelity to an original or to a standard or ideal. In a common usage, it also means constancy or sincerity in action or character...
, participation in the community, or individual self-fulfillment and human flourishing".
Commercial expression
Commercial expression is recognized as an activity protected under section 2(b). This includes advertising and any other similar means of expression used to sell goods and services. In fact, even false or misleading advertising is protected as well. The value of the expression does not come into play until the section 1 analysis.The protection of commercial expression was first established in Ford v. Quebec (1988) where the Court struck down a Quebec law requiring all signs to be exclusively in French. This was soon followed by Irwin Toy v. Quebec
Irwin Toy Ltd. v. Quebec (Attorney General)
Irwin Toy Ltd. v. Quebec , [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms...
where the Court found that Quebec law prohibiting advertising to children to violate section 2(b) but was saved under section 1.
The Supreme Court has also found that restrictions on advertising by professionals to be protected. As well, even communications for the purpose of prostitution was found to be protected as commercial expression.
Picketing
Protesting by labour groups and trade unions have long been recognized as a protected form of expression.There are not too many instances of limiting primary picketing. Typically, the debate has been over whether secondary picketing can be restricted; this practice of picketing businesses not directly involved in a labour dispute has in the past been banned under the common law. The most significant decision on limiting primary picketing is BCGEU v. BC (1988) where employees at the British Columbia Supreme Court, who were protesting as part of a province-wide public service employee strike, were ordered back to work by the Chief Justice of the court. The order was found to clearly violate section 2(b) but the Supreme Court upheld it on section 1.
Freedom of thought, belief and opinion
Section 2(b) guarantees freedom of thought, belief and opinion in addition to freedom of expression. However, freedoms of thought, belief and opinion in the Charter have had little practical consequence because the government cannot stifle unspoken thoughts anyway.Freedom of peaceful assembly
Freedom of peaceful assembly under section 2(c) has not had a major impact on the case law. In Reference re Public Service Employee Relations Act (Alta.)Reference re Public Service Employee Relations Act (Alta.)
Reference re Public Service Employee Relations Act , [1987] 1 S.C.R. 313 is a leading opinion of the Supreme Court of Canada on right to freedom of association under section 2 of the Canadian Charter of Rights and Freedoms...
(1987), the Supreme Court found that despite being written as a separate right, it was closely related to freedom of expression. The Nova Scotia Supreme Court
Nova Scotia Supreme Court
The Nova Scotia Supreme Court is a superior court in the province of Nova Scotia.The Court comprises the Chief Justice , the Associate Chief justice, twenty-one judges and six supernumerary Justices, who sit in 18 different locations around the province.-Jurisdiction:As with all superior courts...
defined it in Fraser et al. v. A.G.N.S. et al. (1986) as including rights to meet as part of a committee or as workers. If there are membership fees to attend a meeting, prohibitions on being able to spend money for membership would be an abridgement of the right to peaceful assembly. In 2011, Occupy Canada
Occupy Canada
Occupy Canada are a collective of peaceful protests and demonstrations that are part of the larger Occupy Together movement which first manifested in the financial district of New York City with Occupy Wall Street, and subsequently spread to over 900 cities around the world.- The larger movement...
's protests in public parks raised questions of whether their eviction was prohibited by freedom of assembly, as well as expression and association.
Freedom of association
Freedom of association is guaranteed under section 2(d). This right provides individuals the right to establish, belong to and maintain to any sort of organization. Generally, this is used in the labourLabour movement
The term labour movement or labor movement is a broad term for the development of a collective organization of working people, to campaign in their own interest for better treatment from their employers and governments, in particular through the implementation of specific laws governing labour...
context where employees are given the right to associate with certain unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
or other similar group to represent their interests in labour disputes or negotiations.
It is important to note that this right only protects the right of individuals to form associations and not associations themselves. Consequently, government legislation affecting the powers of established labour associations do not necessarily invoke section 2(d). It is only where legislation restricts the associative nature of an activity will section 2 be invoked. However, in a landmark decision, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (2007), the Supreme Court ruled that freedom of association guaranteed by s.2(d) includes a procedural right to collective bargaining. The Court ruled in this case that legislation that "substantially interferes" with the process of collective bargaining is a s.2(d) infringement. The test for "substantial interference" is twofold: (1) the importance of the matter affected to the process of collective bargaining, and more specifically, the capacity of union members to come together and pursue collective goals in concert; and (2) the manner in which the measure impacts on the collective right to good faith negotiation and consultation. The decision in the Health Services case overturns jurisprudence arising from the so-called "labour trilogy" cases of 1987 that found that s.2(d) did not include a right to collective bargaining.
Typically, where a union is denied a right it does not preclude the employees from forming a separate association. In Delisle v. Canada
Delisle v. Canada
Delisle v. Canada , [1999] 2 S.C.R. 989 is a Supreme Court of Canada decision on the freedom of association guarantee under section 2 of the Canadian Charter of Rights and Freedoms. The Court defined the freedom as only applying to individuals andnot associations themselves...
(1999), members of the Royal Canadian Mounted Police
Royal Canadian Mounted Police
The Royal Canadian Mounted Police , literally ‘Royal Gendarmerie of Canada’; colloquially known as The Mounties, and internally as ‘The Force’) is the national police force of Canada, and one of the most recognized of its kind in the world. It is unique in the world as a national, federal,...
were excluded from the public services legislation. The Supreme Court held that they were not precluded from forming their own association outside of the Act. However, in contrast the decision of Dunmore v. Ontario indicated that agricultural workers who were excluded from provincial labour relations legislation were entitled to be included because individually they were unable to form their own associations, and consequently, this imposed a duty upon the government to include them.
The freedom of association also includes the freedom not to associate. In certain employment circumstances employees are required to contribute to a union as conditions of their employment (see Rand formula
Rand formula
In Canadian labour law, the Rand formula is a workplace situation where the payment of trade union dues is mandatory regardless of the worker's union status...
). However, mandatory associations do not invoke section 2(d) in and of themselves. In Lavigne, the Court found that the right not to be associated extended only to where the association supported causes that went beyond what is necessary for employee representation. More generally, the Supreme Court had stated that the right is violated only when the mandatory association imposes "ideological conformity". Such violations have also mostly been found by the Supreme Court to be justified under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
, resulting in a right not to associate that has more theorical than practical effects.
In R. v. Advance Cutting & Coring Ltd. (2001), the Supreme Court was called to examine the constitutional validity of a Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
law that required all persons working in the province's construction industry to join a designated union. Eight of nine judges (Justice Claire L'Heureux-Dubé
Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
dissenting) confirmed that section 2 includes, to at least some degree, the negative right to not associate. With a majority of 5 judges to 4, the Court determined that the law at issue violated this right. But with the same majority (judge Frank Iacobucci
Frank Iacobucci
Frank Iacobucci, CC was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. He is an expert in business and tax law.-Early career:...
"switching camps" on the two issues and citing a "unique and complex historical context" in Quebec), the Court deemed the law to be justified in a free and democratic society under section 1 and thus constitutional.
External links
- Canadian Charter of Rights and Freedoms, Section 2: Fundamental Freedoms
- Fundamental Freedoms: The Charter of Rights and Freedoms – Charter of Rights website with video, audio and the Charter in over 20 languages