What Does "Freedom" Mean in Canadian Law?

AuthorMckay-Panos, Linda

The courts have interpreted and applied sections 1 and 2 of the Charter, including in the case of Occupy Toronto in 2011.

In recent days, the word "freedom" has been used in the context of regulating protests and blockades at various locations in Canada. The Canadian Charter of Rights and Freedoms (Charter) provides guidance about our rights and freedoms in Canada. Over the years, by a process called "judicial review", the Canadian judiciary has interpreted the scope of our rights and freedoms. The courts have also developed legal tests for reasonable and justifiable limits on our rights and freedoms.

In Canada, when the courts are asked to interpret and apply the Charter in a particular situation, they use the following analysis:

  1. What is the scope of the right or freedom relied on by the claimant?

  2. Is the right or freedom violated?

  3. If yes, can the violation nevertheless be reasonably justified in a free and democratic society?

    2011's Occupy Toronto

    In the context of a 2011 protest during "Occupy Toronto" in Batty v City of Toronto (Batty), Ontario Justice DM Brown stated:

    [2]...Canada has not chosen anarchism. Instead, when we collectively adopted the Charter some 30 years ago, we embraced, in a constitutional way, a political philosophy which places great emphasis on the liberty of the individual--as can be seen from the various rights and freedoms set out in ss. 2 through 15 of the Charter--while at the same time reiterating that those rights and freedoms are not absolute. Indeed, the first section of our Charter reminds us that individual action must always be alive to its effect on other members of the community: it states that limits can be placed on individual action as long as they are 'reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. [underlining added] In Batty, protesters had been camping in a public park in downtown Toronto as part of the "Occupy Toronto" movement for a month. The City served them with a notice under the Trespass to Property Act stating that, "in accordance with the City's Parks By-law, they were prohibited from installing, erecting or maintaining a tent, shelter or other structure in the park and from using, entering or gathering in the park from 12:01 a.m. to 5:30 a.m." (Batty, para 4). The applicants challenged the validity of the Trespass Notice, claiming it violated their rights under section 2 of the Charter.

    Section 2 of the Charter

    Section 2 of the Charter reads:

    Fundamental freedoms 2. 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...

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