PHOTO: Amy Chung from Pexels
In recent days, the word โfreedomโ has been used in the context of regulating protests and blockades at various locations in Canada. The Canadian Charter of Rights and Freedomsย (Charter) provides guidance about our rights and freedoms in Canada. Over the years, by a process called โjudicial reviewโ, the Canadian judiciary has interpreted the scope of our rights and freedoms. The courts have also developed legal tests for reasonable and justifiable limits on our rights and freedoms.
In Canada, when the courts are asked to interpret and apply theย Charterย in a particular situation, they use the following analysis:
- What is the scope of the right or freedom relied on by the claimant?
- Is the right or freedom violated?
- If yes, can the violation nevertheless be reasonably justified in a free and democratic society?
2011โs Occupy Toronto
In the context of a 2011 protest during โOccupy Torontoโ inย Batty v City of Torontoย (Batty),ย Ontario Justice DM Brown stated:
[2] โฆCanada has not chosen anarchism. Instead, when we collectively adopted theย Charterย some 30 years ago, we embraced, in a constitutional way, a political philosophy which places great emphasis on the liberty of the individual โ as can be seen from the various rights and freedoms set out inย ss. 2ย through 15 of theย Charterย โ while at the same time reiterating that those rights and freedoms are not absolute. Indeed,ย the first section of ourย Charterย reminds us that individual action must always be alive to its effect on other members of the community: it states that limits can be placed on individual action as long as they are โreasonable limits prescribed by law as can be demonstrably justified in a free and democratic societyโ. [underlining added]
Inย Batty, protesters had been camping in a public park in downtown Toronto as part of the โOccupy Torontoโ movement for a month. The City served them with a notice under theย Trespass to Property Actย stating that, โin accordance with the Cityโs Parks By-law, they were prohibited from installing, erecting or maintaining a tent, shelter or other structure in the park and from using, entering or gathering in the park from 12:01 a.m. to 5:30 a.m.โ (Batty, para 4). The applicants challenged the validity of the Trespass Notice, claiming it violated their rights underย section 2ย of theย Charter.
Section 2 of theย Charter
Section 2 of theย Charterย reads:
Fundamental freedoms
2.ย Everyone has the following fundamental freedoms:
(a)ย freedom of conscience and religion;
(b)ย freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c)ย freedom of peaceful assembly; and
(d)ย freedom of association.
Inย Batty,ย the Applicants argued their freedoms were violated as follows (para 56):
(a)ย Section 2(a) โ Freedom of Conscience
Ejection from the park and the disbanding of the encampment infringes the Applicantโs freedom of conscience by limiting their freedom to express and enact their political beliefs. The Applicants believe that the act of โoccupyingโ a space is central to their commitments to solidarity, community, and democracy. Their organization of the physical space of the encampment and the social organization of the community ofย protestersย is a mechanism through which the Applicants and fellowย protestersย practice direct democracy and consensus- based decision making.
The encampment and its activities are an exercise of the Applicantsโ and fellowย protestersโ conscience and political beliefs. The Notice under theย Trespass to Property Actย and any government action taken to enforce that Notice substantially interfere with the Applicantsโ and fellowย protestersโ freedom of political belief and conscience.
(b)ย Section 2(b) โ Freedom of Expression
Ejection from the park and the disbanding of the encampment infringes the Applicantsโ freedom of expression by denying the Applicants and fellowย protestersย at St. James Park an essential means by which to convey their message. The physical act of โoccupyingโ a space is central to the message being communicated by the Applicants and fellowย protesters. If they are denied the opportunity to โoccupyโ St. James Park because of the Notice under theย Trespass to Property Actย and any government action taken to enforce that Notice, theย protestersย will be inhibited in their ability to convey information and raise awareness about their social concerns.
The applicants are engaged in a prolongedย protestย which involves various forms of protected expression. Further, the actual encampment at St. James Park is a physical act that conveys or is attempting to convey meaning to โฆ members of Canadian society. Both theย protestย and the encampment are intended to convey various messages, including messages about the disproportionate distribution of wealth in society and about democracy.
Protestingย and picketing are forms of expression which are highly protected byย s. 2(b)ย of theย Charter. The Supreme Court of Canada has recognized that the forms of expression that are protected byย s. 2(b) are infinitely varied and can include the written or spoken word, the arts, and even physical gestures or acts. The Supreme Court has recognized that even the physical act of parking a vehicle might constitute protected expression if the vehicle was parked in an attempt to convey a meaning. The Applicantsโ and fellowย protestersโ encampment is a form of political expression which should be sedulously protected by the Court.
(c)ย Section 2(c) โ Freedom of Assembly
Ejection from the park and the disbanding of the encampment directly infringes the Applicantโs freedom of assembly, by disrupting a peacefully gathering in which the Applicants and fellowย protestersย are collectively voicing their political beliefs and concerns. The encampment at St. James Park is the site and form of the Applicantsโ and otherย protestersโ assembly, and the Notice under theย Trespass to Property Actย and any government action taken to enforce it directly inhibit the Applicantsโ rights to peacefully assemble.
(d)ย Section 2(d) โ Freedom of Association
Ejection from the park and the disbanding of the encampment infringes the Applicantโs freedom of association, by preventing them from working collectively to understand and resolve the confounding social and political problems we all face. The encampment is Occupy Torontoโs primary site for collective action, solidarity, community, debate and discussion towards such understanding and resolution. The Notice under theย Trespass to Property Actย and any government action taken to enforce it directly inhibit the Applicants right to associate by disrupting their structures of collective organization and substantially interfering with their ability to work together toward common goals.
Justice Brown held that the protestersโ freedoms under section 2 of theย Charterย were violated. Next, Justice Brown noted that the key issue was whether the violation could be justified under section 1 ofย Charter.
Section 1 of theย Charter
Section 1ย of theย Charterย reads as follows:
1. Theย Canadianย Charterย of Rights and Freedomsย guarantees the rights and freedoms set out in itย subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [underlining added]
The Supreme Court of Canada (SCC) has developed a legal test to determine when the government can rely on section 1. The test is found in paragraphs 69 to 70 ofย R v Oakes, a 1986 Supreme Court of Canada decision:
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.ย First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be โof sufficient importance to warrant overriding a constitutionally protected right or freedom.โย ย R. v. Big M Drug Mart Ltd.,ย 1985 โฆ The standard must be high to ensure that objectives that are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which areย pressing and substantialย in a free and democratic society before it can be characterized as sufficiently important.
Second,ย once a sufficiently significant objective is recognized, then the party invokingย s. 1ย must show that the means chosen areย reasonable and demonstrably justified. This involves โa form of proportionality testโ:ย R. v. Big M Drug Mart Ltd. โฆย Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of aย proportionality test.ย First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must beย rationally connectedย to the objective.ย Second,ย the means, even if rationally connected to the objective in this first sense, shouldย impair โas little as possibleโย the right or freedom in question:ย R. v. Big M Drugย Mart Ltd.,ย โฆย Third,ย there must be aย proportionalityย between theย effectsย of the measures which are responsible for limiting theย Charterย right or freedom, and the objective which has been identified as of โsufficient importanceโ. [emphasis added]
The third aspect of the proportionality test was later expanded upon by the Supreme Court of Canada in the 1994 case ofย Dagenais v Canadian Broadcasting Corpย (at para 888):
[T]his Court has recognized that in appropriate cases it is necessary to measure the actual salutary effects of impugned legislation against its deleterious effects, rather than merely considering the proportionality of the objective itself.
Applying theย Oakesย test inย Batty,ย Justice Brown found that the regulation of structures in public parks and the use of parks during midnight hours is a pressing and substantial objective (para 96) since โwithout some balancing of what people can and cannot do in parks, chaos would reign; parks would become battlegrounds of competing uses, rather than oases of tranquility in the concrete jungleโ (para 91). Further, the measures chosen were rationally connected to the objective since they simply asked โone group of the public to let go of their monopoly over the use of the Park and share [it] with other people in Torontoโ (para 97).
Next, the measures were found to impair the guaranteed freedom as little as possible. The Court accepted that the encampment of the park was an integral element of the message being conveyed as a manifestation of a political commitment to a horizontally democratic, grassroots process (para 8). Justice Brown quoted the affidavit of the applicants which described the encampment as a โsymbol of the evolution of humans from the nationalist rhetoric of our forefathers, to a true unification of all humankindโ (para 36). The Court held that compliance with the trespass notice entailed minimal impairment because it did not amount to a total eviction of the protesters from the park (para 122).
Finally, the court found there was adequate proportionality between the deleterious and salutary effects of the measure (para 123). This conclusion was supported by a description of the negative effects of the encampment on the serene park grounds (โthe occupied areas are largely covered with grass and are gently undulating. They are also well treed, with mature treesโ) (para 26) and affidavits of residents and nearby business owners. Thus, the conditions imposed on the protest struck the appropriate balance relating to private expression in public places and were thus โreasonable limits prescribed by law as can be demonstrably justified in a free and democratic societyโ. (See: โFreedom of Expression, the โOccupyโ Movement, and the Dismantling of Tents: A Case Comment on Batty v City of Torontoโ Marina Chernenko โ The Court, 2014).
A Balancing Act
Hopefully, this summary of theย Battyย case demonstrates that while Canadian courts will widely protect Canadiansโ freedoms, they must also allow the government to impose reasonable limits when individuals exercising freedoms adversely affect other members of the community. Thus, freedom in Canada is not an absolute right.
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.