Section Two of the Canadian Charter of Rights and Freedoms

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 belonging 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. They are guaranteed but can also be limited by the section 1 of the Charter, and they 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 bill 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.

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Under the heading of "Fundamental Freedoms" the section states:cquote|2. Everyone has the following fundamental freedoms::(a) freedom of conscience and religion;:(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;:(c) freedom of peaceful assembly; and:(d) freedom of association.

Freedom of religion

:"For a related article, see Status of religious freedom in Canada."

Background

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 [Beverley McLachlin, "Freedom of Religion and the Rule of Law: A Canadian Perspective," in "Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy". Ed. Douglas Farrow. McGill-Queen's University Press, 2004, pages 17-18.] (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). [McLachlin, "Freedom of Religion and the Rule of Law: A Canadian Perspective," pages 19-20.]

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 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" (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.

Freedom of conscience

In addition to freedom of religion, section 2(a) also guarantees freedom of conscience. Professor Peter Hogg 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." [Hogg, Peter W. "Canada Act 1982 Annotated." Toronto, Canada: The Carswell Company Limited, 1982.] 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." [Chrétien, Jean. "Straight from the Heart". (Key Porter Books Limited, 1994), p. 173.]

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." ["Edmonton Journal v. Alberta (Attorney General)" [1989] 2 S.C.R. 1326, page 1336.] 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 Canada 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. [Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 686.]

Free speech was later included in the "Canadian Bill of Rights".

Definition

The meaning of "expression" within section 2(b) has been read broadly as including any activity that conveys, or attempts to convey, meaning ["Irwin Toy v. Quebec" (1989)] to the exception of acts of violence and threats of violence. [ See "ibid." and "UCFW v. KMart"] 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 right. 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.

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. [see, for example, "Prostitution Reference", "R. v. Keegstra", and "R. v. Butler"] 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. [For example, instead of banning rock music--the content--, banning FM radio-- the method of conveying the music]

Where a law does not intend to limit the freedom of expression it may still infringe section 2(b) through its effects. ["Ramsden v. Peterborough"] 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".

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" 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 the advertising by professionals to be protected. ["Rocket v. Royal College of Dental Surgeons of Ontario"] As well, even communcations for the purpose of prostitution was found to be protected as commercial expression. ["Prostitution Reference" (1990)]

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 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.)" (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.

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 labour 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. ["Reference re Public Service Employee Relations Act (Alta.)" (1987)] 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) [ [2007] 2 S.C.R. 391] , 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. [ [2007] 2 S.C.R. 391 p.394] 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. [ [2007] 2 S.C.R. 391 p.413]

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. [established in "Lavigne v. OPSEU" (1991)] 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". ["R. v. Advance Cutting & Coring" (2001)] 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 forced all persons working in the construction industry of this province to join one of the five unions mentioned in the law. Eight of nine judges (judge Claire L'Heureux-Dubé dissenting) confirmed that a person's freedom of association protected under section 2 includes the right of a person not to associate. With a majority of 5 judges to 4, the Supreme Court determined that the law violated this right. But with the same majority (judge Frank Iacobucci "switching camps" on the two issues), the Court deemed the law to be "justified in a free and democratic society" under section 1 and thus decided for its constitutional validity.

ee also

* Censorship in Canada
* Religion in Canada

Notes

External links

* [http://www.canlii.org/ca/com/chart/s-2-a.html digest of s.2(a)]
* [http://www.canlii.org/ca/com/chart/s-2-b.html digest of s.2(b)]
* [http://www.canlii.org/ca/com/chart/s-2-c.html digest of s.2(c)]
* [http://www.canlii.org/ca/com/chart/s-2-d.html digest of s.2(d)]
* [http://www.charterofrights.ca/language.php Fundamental Freedoms: The Charter of Rights and Freedoms] - Charter of Rights website with video, audio and the Charter in over 20 languages