Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada 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 section 33, 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. However, many of its rights 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 these exemptions, such as freedom of expression, have also been at the centre of federalistic disputes.
Text Under the heading of "Fundamental Freedoms" the section states:
Freedom of religion
Background According to Beverley McLachlin, 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 rightsBeverley 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, SCR 834. regarding Jehovah's Witnesses, that different religion 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. However, its effectiveness was limited. When Sunday closing laws compelling respect for the Christian Sabbath were challenged in R v Robertson and Rosetanni, SCR 651 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 religions.
Definition Freedom of religion under section 2(a) of the Charter was first seriously considered by the Supreme Court in R v Big M Drug Mart Ltd. 1 SCR 295. 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 SCC 47. 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 SCC 6. the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan (dagger) in school.
In R v NS,2012 SCC 72. the Supreme Court sought to find a middle ground on the issue of whether a witness can wear a face-covering niqāb while testifying in a criminal trial. The court found that the right to religious freedom must be balanced against the right of the accused to a fair trial.
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. 1 SCR 30. 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, "[C]onscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a)." No other judges joined 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, section 2(b), is perhaps one of the most significant Charter rights in influencing Canadian society. The right is expressly named in the charter because although "Canadian criminal law uses the standard of the reasonable person as a ... definition for the threshold of criminality", the Charter expressly limits some forms of expression.Mikus, Rudolf Alexander. (1995). The reasonable person in substantive Canadian Criminal Law (T). Retrieved from https://open.library.ubc.ca/cIRcle/collections/831/items/1.0077473 Justice Peter Cory wrote that it "is difficult to imagine a guaranteed right more important to a democratic society".Edmonton Journal v Alberta (AG), 2 SCR 1326 at 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 SCR 285. 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 under 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, meaningIrwin Toy Ltd v Quebec (AG), 1 SCR 927 [Irwin Toy]. to the exception of acts of violence and threats of violence.See Ibid and United Food and Commercial Workers, Local 1518 v KMart Canada Ltd. However, the Courts 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.
Freedom of expression is primarily seen as a negative right. In Native Women's Association of Canada v Canada, 3 SCR 627. 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 e.g. Reference Re ss 193 & 195.1(1)(c) of Criminal Code (Canada), 1 SCR 1123 [Prostitution Reference]; R v Keegstra, 3 SCR 697; and R v Butler, 1 SCR 452. 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 (City of), 2 SCR 1084. 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. Even false or misleading advertising is protected. 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 (AG), 2 SCR 712. where the Court struck down a Quebec law requiring all signs to be exclusively in French. This was soon followed by Irwin Toy, Supra. where the Court found that Quebec law prohibiting advertising to children 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.Rocket v Royal College of Dental Surgeons of Ontario, 2 SCR 232. As well, even communications for the purpose of prostitution was found to be protected as commercial expression.Prostitution Reference, supra.
Picketing Protesting by labour groups and trade unions has long been recognized as a protected form of expression.