What Are the Fundamental Freedoms Under Section 2 of the Canadian Charter?

Section 2 of the Canadian Charter of Rights and Freedoms addresses our “fundamental freedoms.” These rights apply to everyone in Canada, regardless of citizenship status, and can be enforced against all levels of government through the courts.

Section 2 states that 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
• (d) freedom of association

These freedoms took legal effect on April 17, 1982, as part of the Constitution Act, 1982. They define a sphere of individual freedom and activity that the government cannot limit through law. Because of Section 2, the government cannot make it illegal to believe in a particular god, hold a particular opinion, form an organisation, or associate with a particular person.

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Why Are Fundamental Freedoms Important in Criminal Law?

The fundamental freedoms are essential to criminal law because criminal law is primarily concerned with preserving or limiting individual freedom. The principle that the government cannot limit individual freedom without just cause lies at the heart of the criminal justice system.

In the criminal law context, a defence lawyer typically invokes fundamental freedoms to argue that the law under which their client has been charged violates the Constitution. For example, if a client is charged with uttering hate speech, their lawyer may argue that the law against hate speech violates Section 2(b) by infringing upon the right to freedom of expression.

What Does Freedom of Conscience and Religion Protect?

Section 2(a) guarantees freedom of conscience and religion. This includes the right to hold religious beliefs as one chooses, the right to publicly declare such beliefs without hindrance or reprisal, the right to worship any god, the right to practice any religion, and the right to teach others about the religion of one’s choice.

Freedom of conscience also protects non-religious beliefs. Professor Peter Hogg has speculated that this would include a right to atheism. Justice Bertha Wilson relied on freedom of conscience in R v Morgentaler, arguing that laws against abortion breached this freedom because the decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience.

How Is a Section 2(a) Claim Established?

To demonstrate that the government has interfered with freedom of religion, a claimant must satisfy a two-part test established by the Supreme Court.

First, they must demonstrate they have a practice or belief with a significant connection to religion that mandates particular conduct. Conduct may be mandated if it is objectively obligatory or customary, such as the religiously ordained requirement that Jehovah’s Witnesses not receive blood transfusions. Conduct may also be mandated if the individual feels it subjectively creates a personal connection with the divine, regardless of whether the practice is required by official religious dogma.

Second, the claimant must show they are sincere in their religious belief. The Supreme Court has noted that religious beliefs may change over time, so courts should be mindful of this when assessing sincerity.

Following this test in Multani v Commission scolaire Marguerite-Bourgeoys, the Court found that freedom of religion protects a non-violent Sikh student’s right to wear a kirpan (ceremonial dagger) at school, despite laws prohibiting the concealed carrying of weapons.

What Does Freedom of Expression Protect?

Section 2(b) protects freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. Justice Peter Cory wrote that it “is difficult to imagine a guaranteed right more important to a democratic society.”

According to the Supreme Court, any method of conveying or attempting to convey meaning constitutes “expression” for the purposes of Section 2(b). This interpretation is extremely broad, designed to protect a plurality and diversity of opinions, thoughts, and beliefs. By encouraging diversity and dissent, we encourage new ideas and strengthen our society.

What Are the Limits on Freedom of Expression?

The Supreme Court carved out an exception for meaning communicated through physical violence. While Section 2(b) protects certain physical acts that convey meaning, such as a protestor holding a sign, it does not protect acts of violence, even if committed to communicate a particular opinion.

However, Section 2(b) protects communication, no matter how repugnant, shocking, or hateful its content. The court has ruled that this right protects an individual’s freedom to disseminate hate speech or produce pornography. While laws against such content may be upheld under Section 1 of the Charter, the expression itself remains constitutionally protected.

Commercial expression, including advertising and other means of selling goods and services, is also protected under Section 2(b). Even false or misleading advertising falls within the protection, though it may be limited under Section 1.

How Do Criminal Lawyers Use Freedom of Expression?

Criminal defence lawyers routinely invoke freedom of expression to protect individuals charged with expressing their opinions in political protests, creating subversive or controversial materials, creating or disseminating speech considered “hateful” or “intolerant,” or engaging in activities that challenge conventional standards.

What Does Freedom of Peaceful Assembly Protect?

Section 2(c) protects the freedom of individuals, whether working alone or in groups, to express their opinions through demonstrations or political protest. The Supreme Court has found that, despite being written as a separate right, it is closely related to freedom of expression.

This freedom is extremely important, as it protects individuals’ ability to make their beliefs known to those in government. It is sometimes invoked to protect the rights of individuals charged under criminal law for participating in political protests or demonstrations.

What Does Freedom of Association Protect?

Section 2(d) guarantees every individual the right to establish, belong to, and maintain an association. This allows individuals to join together in groups based on shared opinions, activities, political beliefs, or to work toward a common goal.

In the Alberta Reference, the Supreme Court stated that this right is premised on our society’s fundamental belief in individual freedom. The Court explained that “the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others.”

Freedom of association is considered one of the most important rights in a free and democratic society. Judges and scholars often point out that when a dictatorship or totalitarian government takes power, one of the first things it does is restrict individuals’ ability to organise in groups. Alone, people are much more powerless against the government, but when individuals join groups, they can have a more profound effect on the government and society.

How is a Section 2(d) Claim Analysed?

According to the Alberta Reference, the court’s analysis revolves around a simple question: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? If the claimant can demonstrate this is the case, Section 2(d) protection will be triggered.

Section 2(d) also includes the freedom not to associate. In Lavigne, the Court found that the right not to be associated extended only to situations where the association supported causes beyond what is necessary for employee representation.

How Do Criminal Lawyers Use Freedom of Association?

Criminal defence lawyers have used Section 2(d) to protect individuals charged in the context of staging demonstrations or public protests, or because they are part of a group such as an organisation or interest group.

Section 2(d) has gained new relevance in criminal law because of laws against terrorism, which can sometimes infringe upon freedom of association by making it illegal to associate with known members of a terrorist organisation.

Can the Fundamental Freedoms Be Limited?

Yes. All fundamental freedoms in Section 2 may be limited by Section 1 of the Charter if the government can prove that the limit is “demonstrably justified in a free and democratic society.”

Additionally, Section 33, the “notwithstanding clause,” allows Parliament or provincial legislatures to temporarily override certain Charter rights, including the fundamental freedoms.

Do You Need a Criminal Lawyer to Protect Your Charter Rights?

If you have been charged with a criminal offence and believe your fundamental freedoms have been violated, an experienced criminal defence lawyer can assess whether a Charter challenge is appropriate in your case.

Pyzer Criminal Lawyers has over two decades of experience defending clients throughout Toronto and the GTA, including cases involving Charter arguments. We understand how to use constitutional protections to defend your rights. Contact us at (416) 658-1818 for a free, confidential consultation.