Frequent readers of this series might notice a common theme among the entries I have posted so far. In each section, I outlined how the fundamental freedoms in Section 2 of the Canadian Charter of Rights and Freedoms go beyond their literal meaning.
In particular, parts 2 and 3 of this series showed how the fundamental freedoms can be expanded under the Living Tree Doctrine, or limited by the Reasonable Limits Clause.
These interpretations are not created in a vacuum; they are created after the courts hear cases involving these rights. During these cases, conflicting interpretations of the Charter are debated, until the court can come to a final decision.
In recognition of how these cases shape our Charter, I will conclude my examination of the fundamental freedoms by highlighting two major cases this week to show the origins of rights.
Out of the cases that were used to place reasonable limits on Section 2, none are more famous than R. v. Keegstra, from 1986.
James Keegstra, an Albertan school teacher, was convicted in 1984 of hate propaganda crimes because his lessons involved teaching anti-Semitism to his students.
Keegstra fought his conviction in the Alberta Court of Appeal, claiming that hate speech laws violate the freedom of expression in Section 2(b) of the Charter. The court agreed- overturning Keegstra’s conviction!
This ruling raised a single question, which was put before the Supreme Court in 1986: Should hate propaganda be protected under the Charter?
In its ruling, the Court stated that while hate speech laws infringe on Section 2(b), laws prohibiting it are not unconstitutional.
Two main reasons emerged in this decision. First, allowing hate speech would impact other rights, such as equality rights for minorities threatened by hate. Further, restrictions from hate laws are not overly limiting, since they only deal with the speech that would lead to hate or harm towards groups.
In Part 3, you can find ways in which this case still impacts discussions on freedom of expression to this very day!
While the vast majority of Section 2 cases involve its restriction like Keegstra, there is one landmark case that has broadened it- Dunmore v Ontario.
Freedom of association has not always applied to unions. Before the Dunmore case, this freedom was generally used to allow Canadians to gather in political groups without fearing reprisal.
However, in 1995, the government of Ontario passed a law terminating all collective bargaining rights for agricultural workers. To challenge this law, Tom Dunmore and several other farmers took the government to court, claiming that their freedom of association under Section 2(d) was violated.
The Supreme Court agreed. In its ruling, the Court stated that association covers more than communities and political groups- it also involves collective action! Therefore, any laws that interfere with that right are in violation of Section 2(d)
In parts 2 and 4 of this series, you can see how this case still helps workers today, and protects them against anti-union laws.
There are just two of the many cases that have impacted the fundamental freedoms in Section 2 of the Charter. Every day, our courts see cases that review new interpretations of the Charter and each of these decisions help further define the rights we enjoy every day.
Please check in next week, as this blog explores a new part of the Charter! Starting next week, I will be discussing the democratic rights found in Sections 3, 4 and 5 of the Charter.