Rights and Freedoms of the Charter
| Author | Patrick J. Monahan/Byron Shaw/Padraic Ryan |
| Pages | 450-472 |
450
CH AP TE R 14
RIGHTS AND FREEDOMS
OF THE
CHARTER
The rights protected by the Charter a re grouped into six categories: fun-
damental freedoms, democratic rights, mobility rights, equal ity rights,
and language rights. This chapter provides an overview of how the
Supreme Court has interpreted each category since the enactment of
the Charter. This period ha s seen relative consistency in some areas,
such as freedom of religion, and continual jurisprudential tweaking in
others, such as equality r ights.
A. FUNDAMENTAL FREEDOMS
The fundamental freedoms portion of the Charter is contained in sec-
tion 2, which protects freedom of conscience and religion (section 2(a)),
freedom of expression and the pres s (section 2(b)), freedom of peaceful
assembly (section 2(c)), and freedom of associ ation (section 2(d)).
1) Freedom of Religion
The starting point and leading case on freedom of religion is R. v. Big M
Drug Ma rt.1 In Big M, the Supreme Court struck down the federal Lo rd’s
Day Act as a violation of freedom of conscience and religion. Dickson
C.J.’s decision in Big M is one of the most frequently cited by later courts
Rights and Fre edoms of the Charter 451
for its holding that Charter r ights should receive a purposive interpret-
ation. The purposive approach requires that the underly ing purpose of
a Charte r right be ascertained by reference to the larger objects of the
Charter as a whole, to the lang uage chosen to articulate the specific right
or freedom, and to the historical or igins of the concepts enshrined. Ac-
cording to Dickson C.J., this purposive method w ill be “generous rather
than . . . legalistic,” and it will be aimed at “securing for individuals
the full benefit of the Charter’s protection.”2 Dickson C.J. identified the
purpose of section 2(a) as being to ensure that any individual is “free to
hold and manifest whatever beliefs and opinions his or her conscience
dictates, prov ided inter alia only that such manifestations do not injure
his or her neighbours or their para llel rights to hold and manifest beliefs
and opinions of their own.”3 Dickson C.J. concluded that the purpose of
the Lord’s Day Act was to compel observance with the Chr istian Sabbath,
and that the legislation was therefore unconstitutional.
In Edwards Books,4 the Court held that the Ontar io Retail Business
Holidays Act violated the right to freedom of religion. The purpose of
the Act was secular; t he legislation was intended to provide a common
day of rest for retail workers. However, the Court held that the effect of
the legislation imposed a burden on reta ilers who observed Sabbath on
a day other than Sunday, which thereby infr inged freedom of religion
under section 2(a). The legislation was upheld under section 1 of the
Charter on the basi s that a common day of rest for retail workers justi-
fied the limitation on freedom of religion.
Section 2(a) has been held to protect a wide variety of religious beliefs
and practices. The Supreme Court has endorsed a broad and subjective
view of freedom of religion, which looks to the genuine religious beliefs
and practices of an individua l, without regard to whether a particular
practice or belief is required by official religious dogma or is in conform-
ity with the position of relig ious officials. For inst ance, in Syndicat North-
crest v. Amselem,5 the Court held that Orthodox Jews could construct a
succah (a temporary structure on thei r apartment balconies) in order to
observe a religious festival, even though they had signed contracts pro-
hibiting construction on their balconies and had been offered an alterna-
tive communal succah on a common site. There was expert evidence
before the Court that Orthodox Jews were under no obligation to build
their own succahs. However, the majority held that t he claimants were
required to show only that their practice was part of a sincere belief that
2 Ibid. at para. 117.
3 Ibid. at para. 123.
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