Last week, this blog provided an overview of the fundamental freedoms granted by Section 2 of the Canadian Charter of Rights and Freedoms. However, the freedoms within Section 2 go far beyond their most literal meaning.
Our Charter is interpreted by what is known as the Living Tree Doctrine. Our world has changed considerably since the Charter was signed into law in 1982, and this doctrine grants the courts the power to let it evolve and address the realities of modern life.
Today’s blog will describe how the fundamental freedoms in Section 2 have evolved under the Living Tree Doctrine.
Once again, Section 2 of the Charter 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; and
(d) freedom of association.
Section 2’s most important evolutions can be found in how Section 2(a) protects more than the right to religion. It also protects the right to not follow religions- and even grants Canadians the right to do what they believe is morally right regardless of religion!
This means that Canadians are protected from religious requirements set by the government. This is why Canadians are able to do business on Sundays, despite it being previously forbidden to respect Christianity’s Lord’s Day.
This is also why Section 2 protects the right to abortions and same-sex marriages. Since the decisions to have a same-sex marriage or abortions are considered moral decisions, preventing them would violate a person’s right to believe that these practices are moral.
Freedom of expression under Section 2(b) has also seen important evolution- most importantly, to protect against bans on what is deemed “obscene.”
This has been particularly important for LGBTQ2 media, which has seen frequent censorship under there laws. Thanks to the evolution of Section 2(b), Canada is enriched by the free expression of the LGBTQ2 community.
Finally, sections 2(c) and (d) of the Charter have evolved to protect unions against harmful laws. As anti-union bills make their way into provincial and federal law, they have evolved to ensure that Canadians can form unions.
This evolution is even playing out today. Supporters of Bill C-4, which removes strict requirements on unions from past laws, argue that the restrictions violate the freedom of association since they make operating as a union nearly impossible!
These are just a few examples of how the Living Tree Doctrine has expanded the interpretation of our fundamental freedoms under Section 2 of the Charter. Without the doctrine, Women, LGBTQ2 people and many more would be denied some of the most important rights we enjoy today.
We owe much to the Charter and its history of evolution, which has been the result of hard work in the courts and by civil society groups. Please check in next week, as this blog explores the many advocates for our fundamental freedoms under Section 2 of the Charter!