Section 2 of the Canadian Charter of Rights and Freedoms addresses our “fundamental freedoms”.
There are four fundamental freedoms in total. Section 2 states that: “every person 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.”
In the criminal law context, a criminal defence lawyer would typically use the fundamental freedoms to argue that a law under which their client has been charged violates the constitution in some way.
For example, if a defence lawyer had a client who was charged with uttering hate-speech, the lawyer may choose to argue that the law against hate-speech violates s. 2(b) of the constitution by infringing upon his client’s right to freedom of expression.
The fundamental freedoms are also important 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.
Moreover, the fundamental freedoms define a sphere individual freedom and activity which the government cannot limit using the law.
Because of s. 2 the government cannot make it illegal to believe in a particular god, hold a particular opinion, form a club or organization, or associate with a particular person.
The section 2 (a) right to freedom of conscience or religion guarantees every individual the right to hold such religious beliefs as he or she chooses, the right to declare his or her religious belief publicly 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 his or her choice.
To demonstrate that the government has interfered with an aspect of the claimant’s freedom that falls under the protection of s. 2(a), the claimant and his or her criminal defence lawyer must satisfy a two-part test.
First, he or she must demonstrate that he or she has a practice or belief, which has a “nexus” or significant connection to religion, that mandates particular conduct. Conduct may be mandated if, objectively speaking, it is obligatory or customary.
For example, the religiously ordained requirement that Jehovah’s Witnesses not receive blood transfusions is an objective religious obligation that could come up in the context of a criminal trial. Conduct may also be mandated if the individual feels that it subjectively engenders a personal connection with the divine or with the subject or object of his or her spiritual faith, regardless of whether the specific practice or belief is required by official religious dogma.
For example, an individual could attempt argue that consuming an illegal substance gives them a personal connection with the divine, even though it is not a religious obligation. Second, the claimant must show that he or she is sincere in his or her religious belief. If the claimant can demonstrate the both parts of the test are satisfied, the court will find that the action interfered with is in the protective scope of s. 2(a).
The court must then decide whether there has been enough of an interference with the protected right to constitute a Charter breach.
Not every action that satisfies the test and falls within the ambit of freedom of religion will be protected. The right in s. 2(a) is not absolute, and the Canadian court will not allow individuals to do absolutely anything in the name of freedom of religion. Nonetheless, criminal lawyers invoke the s. 2(a) right to protect their clients’ ability to practice their religious belief unencumbered by the criminal law. For example, s. 2(a) has been used to protect the right of Sikhs to wear a kirpan in their turbans despite the laws against carrying concealed weapons.
The right to freedom of thought, belief, opinion and expression protects an individual’s freedom to think and express their opinion in a variety of ways.
According to the Supreme Court of Canada, any method of conveying or attempting to convey meaning constitute “expression” for the purposes of s. 2(b). In Ross v. New Brunswick School District No. 15, the Supreme Court of Canada adopted a two-step inquiry to determine whether an individual’s s. 2(b) right has been infringed.
First, the court must determine whether the individual’s activity falls within the ambit or scope of activity protected by the s. 2(b) right.
Second, the court must determine whether government action under scrutiny had the purpose or effect of restricting that freedom.
In R. v. Keegstra, the Supreme Court explained that the s. 2(b) protection is extremely broad, so as to protect a plurality and diversity of opinion, thoughts, and beliefs.
By encouraging diversity and dissent, we encourage new ideas and strengthen our society.
However, the Supreme Court did carve out an exception where meaning is communicated through physical violence. For example, though s. 2(b) does protect certain physical acts so long as they convey meaning, such a protestor holding a sign or a feminist burning her bra, it does not protect acts of violence even if they are committed to communicate a particular opinion or belief, such as an animal rights activist throwing paint on a fur coat or an anti-abortion activist harassing or assaulting a doctor who performs abortions.
However, though the s. 2(b) right does not protect violent acts it does protect communication no matter how repugnant, shocking, or hateful its content. For example, the court has ruled that the s. 2(b) right protects an individual’s freedom to disseminate hate speech or produce pornography.
Though the laws against hate speech and pornography may be saved by s. 1 of the Charter; they still constitute constitutionally protected expression.
This is essential to ensure that our society promotes the freedom to dissent against commonly held views or hold uncommon moral/ethical beliefs.
The right to freedom of expression is used routinely by criminal lawyers to protect the rights of individual who are charged with expressing their opinions in the context of political protests, by creating subversive or salacious materials, by creating or disseminating speech thought to be “hateful” or “intolerant”, or by engaging in pornographic or other “sexually deviant” activities. The section 2(c) right to freedom of peaceful assembly is related to the s. 2(b) right.
Section 2(c) protects the freedom of individuals, working alone or in groups, to express their opinion via demonstration or political protest. Though s. 2(c) is extremely important, as it protects the ability of individuals to make their beliefs known to those in government, it has limited use in the criminal law context.
It is sometimes invoked to protect the rights of individuals who are charged under the criminal law for participating in activities such as political protects or demonstrations.
Finally, s. 2(d) guarantees every individual freedom of association. In the PIPSC case, the Supreme Court explained that “first…s. 2(d) protects the freedom to establish, belong to and maintain an association; second…s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third…s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth…s. 2(d) protects the exercise in association of the lawful rights of individuals.”
Basically, the s. 2(d) right allows individuals to join together in groups based on shared opinion, activity, political belief, or to work towards a common goal.
In the Alberta Reference, the Supreme Court stated that the s. 2(d) 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.”
The s. 2(d) right is 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 that it will do is restrict the ability of individuals to organize in groups.
Obviously, alone, people are much more powerless against the government. However, when individuals join into groups, they can have a more profound effect on government and society.
According to the Alberta Reference, a courts analysis of s. 2(d) 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 show that this is the case, the protection of s. 2(d) will be triggered. The s. 2(d) right is commonly invoked in labour law to protect and expand the power of unions or other trade organizations.
However, it has been used by criminal defence lawyers to protect the actions of individuals who are charged in the context of staging a demonstration or public protest or because they are part of a subversive group such as a gang, criminal organization, or “radical” interest group. Recently, s. 2(d) has new relevance in criminal law because of the new laws against terrorism, which can sometimes infringe upon freedom of association by making it illegal to associate with known members of a terrorist organization.
All of the fundamental freedoms in s. 2 may be limited by the limiting provision in s. 1 of the Charter if the government can prove that the limit is “demonstrably justified in a free and democratic society.”
Know your rights! Contact Kostman and Pyzer, Barristers if you have been charged with a criminal offence and are looking for a skilled Toronto criminal defence lawyer!
