Over the last two weeks, this blog has provided an in-depth look into how the fundamental freedoms in Section 2 of the Canadian Charter of Rights and Freedoms allow Canadians to express themselves, follow any religion and assemble as they wish.
However, these rights are not limitless. All Charter rights are subject to Section 1, known as the reasonable limits clause, which states:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In other words, while Charter rights are guaranteed, they are not absolute. Section 1 allows for them to be limited if the restrictions address an issue of pressing concern, without having a disproportionate effect on Canadians.
Today’s blog will highlight some examples of how the fundamental freedoms in Section 2 are limited, and how these limits actually protect Canadians.
The most important restriction on the fundamental freedoms sets out a balance between restrictions on hate speech and the freedom of expression under Section 2(b).
On one hand, speech that ridicules or belittles certain groups- as deplorable as it may be- is protected as a form of expression. However, as soon as that speech exposes groups to hatred, such as the threat of violence or vilification, the Charter no longer protects it.
In other words, Section 1 realizes that with the influence of racism, homophobia, islamophobia and other forms of discrimination, it is necessary to limit the freedom of expression to ensure that the rights of our most vulnerable minorities are protected!
Similarly, our freedom of religion is not absolute. Much like with the freedom of expression, Canadians cannot excuse hateful speech by stating that their religion mandates it. If the speech exposes individuals or groups to violence or vilification, the speech is not protected.
In other words, the Charter does not protect the right to discriminate against others- even if a religion mandates it.
This has been particularly important for Canada’s LGBTQ2 community, which has been refused services for nothing more than being who they are. Thanks to Section 1, these religious beliefs must be set aside, meaning that LGBTQ2 people can be treated like any other Canadian!
These are just a few examples of the limitations imposed upon the fundamental freedoms by section 1. With that said, limitations on the fundamental freedoms follow a common logic:
If the fundamental freedoms were applied in an absolute manner, almost any other right could be violated in the name of expression or religious expression.
This kind of application goes against the very spirit of the Charter- which ensures that all Canadians, rather than just the majority, are guaranteed its rights.
Thus, the fundamental freedoms are protected to ensure that our minorities are protected!
Thanks to the Charter’s spirit, our rights and freedoms are reflected in the daily lives of all Canadians! Please check in next week, as this blog explores how the fundamental freedoms affect the way we interact with our institutions.