Rights and Freedoms – Finding a balance

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. (Section 1 of the Charter)

Four “fundamental freedoms” identified in Section 2 of the Charter:

1. freedom of conscience and religion;
2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
3. freedom of peaceful assembly
4. freedom of association.

Any limits that the City places on these freedoms - through a by-law, policy or by other means - have to be reasonable and justified under Section 1 of the Charter. According to the Department of Justice:

Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 SCR 610, at paragraph 36).

The values and principles which guide the Court in applying section 1 include the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society (R. v. Oakes, [1986] 1 SCR 103 at page 136).

(see: Charterpedia: Section 1)

Courts have also found that a person exercising their freedom of expression in a public place must respect and cannot interfere with the functions of that place, underscoring the general principle that one’s rights are always circumscribed by the rights of others. (Committee for the Commonwealth of Canada, 1991 1 SCR 139)

A municipal by-law will need to balance the freedom of protesters to gather and express themselves with the freedoms, rights, and needs of residents seeking to use vulnerable social infrastructure like places of worship, care homes and daycares, and others – recognizing not only the importance of the right to peaceful protests in a free and democratic society but also the impact that protests or obstructive activities can have on the health and well-being of individuals seeking access to these places and using vulnerable social infrastructure.

What are your initial thoughts on balancing rights? Take our quick poll.