The Role of Canadian Charter of Rights and Freedoms

The judicialization of politics has been present through the Canadian constitutional politics, and it has improved a lot ever since the Charter establishment. The Canadian Charter of Rights and Freedoms was added to the Canadian Constitution Act of 1982. The Constitution is a set of laws that include the fundamental rules in how Canada operates, it states the structure and regulation of Parliament, how elections work, and degree of power that the federal, provincial, and territorial governments in Canada hold. The Canadian Charter is document that outlines the civil rights of each Canadian citizen and what they believe are essential in a free and democratic society. Section 52 of the Constitution Act 1982 articulates the principle of the constitutional supremacy by establishing that the Constitution of Canada is the absolute law of Canada and all additional laws must be consistent within the Constitution regulations. If the other laws interfere with the Constitution, they may be considered invalid. Given that the Canadian Charter is a component of the Constitution, it is known to be the most essential and crucial law in Canada (Kelly, and Manfredi, 2009). Therefore, Canadians’ core values are entrenched in the Canadian Charter of Rights and Freedoms. The charter ensures that every Canadian is treated equally under the law. The freedom of expression is related to the charter by way of laying out specific guidelines that the government must follow to allow equality under the law (i.e. a person’s beliefs or religion). The freedom of expression is not an absolute one as it is limited by section 1, which states that the rights and freedoms are only guaranteed within reasonable limits, as prescribed by law. Freedom of expression holds the largest and most liberal interpretation by the Supreme Court of Canada. The right for an individual to express and form their own opinions is an essential feature of a democracy.

Section 2(b) of the Canadian Charter of Rights and Freedoms grants every individual the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media communication,” as they are considered fundamental freedoms in the Charter. This section gives all Canadians the right to think and believe what they want. It gives the right to express their thought, without having the fear of being penalized or silence. These freedoms are essential for self-fulfillment, participating in both social and political decision making, and free to exchange ideas and beliefs. Given that the media plays huge role when it comes to communicating views and thoughts, the Charter protects the rights to allow press and other media to openly speak out. The freedom of the press is a very important part in a democracy because newspapers and other media can spread information to people about what is going on and express their thoughts and views on certain situations, whereas this information would normally not come from the government.

Freedom of expression leads to other liberal freedoms which include all the freedoms listed under section 2 in the Canadian Charter of Rights and Freedoms. Section 2 freedoms uphold and reinforce the overarching idea behind the constitution and there is an interplay of Canadian core values within the law. Fundamental freedoms under section 2 are section 2(a) freedom of conscience and religion, section 2(c) freedom of peaceful assembly and section 2(d) freedom of association. Individuals in Canada are free to follow a religion of their choice, where nobody can be obliged to behave in a way that infringes their religious views. Society shouldn’t have the right to interfere with one’s personal beliefs regarding their life. The Charter protects Canadians from having to go against their religious beliefs. Freedom of peaceful assembly is generally linked with the right of individuals to join in groups, such as political parties, unions, clubs. Its assurances everybody the fundamental freedoms of ‘freedom of association’. These freedoms are incorporated in the Charter to guarantee that Canadian can create and express their thoughts, come to together as group to openly discuss them. In a democracy, everyone should be free to make their own decisions and to express their thoughts. Likewise, it is also essential to recognize the choices and liberties of others, even if one doesn’t agree. By protecting fundamental freedom of everyone, the Charter encourages a beneficial democracy.

However, section 2 of the Canadian Charter Rights and Freedoms is not an absolute right because of the restrictions on freedom of expression. Although these freedoms are important, the government has the power to limit them. These rights can be restricted to protect other rights or important national principles. For example, A world with unlimited free speech would be madness, individual and groups would be allowed to openly discriminate against people based on their age, sex, religion, sexual orientation, etc. However this right is limited when someone or a group is supporting a misconduct, hatred propaganda, and child pornography because they prevent harm towards another group or individuals. People aren’t allowed to promote sexual, mental, physical violence, and then justify their actions by freedom of speech. Limitations on freedom of expression come in many ways, there are procedures that are set in place to ensure they are respected “including Criminal Code and Human Rights provisions limiting hate speech, municipal by-laws that regulate signage or where protests may take place, civil defamation (libel) actions, and restrictions placed on press freedoms. Also, Section 1 of the Canadian Charter Rights and Freedoms states that the Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

In the case R.v. Sharpe, the defendant was charged with possession of child-pornography and he challenged the court of the wrongdoings he was charged with. The defendant claimed that this violated his right to freedom of expression under section 2(b) of the Charter. The lower courts ruled out the ban on possession of child pornography was found to be unlawful. The court appealed against the decision, claiming the limitation on freedom of expression is reasonable as the ban obtains to keep children from harm. Therefore, in this situation the government has to consider weather the ban on possession of child-pornography interferes with section 2(b) of the Canadian Charter Rights and Freedoms.

The Tobacco Products Control Act was instituted by the Parliament of Canada to prevent and outlaw tobacco companies to advertise and promote their products in order to protect the welling-beings of Canadians by trying to reduce attracting new smokers. However, the Tobacco Products Control Act violated section 2(b) of the Charter. The law bans tobacco advertising and made it mandatory that all tobacco products include unattributed health warnings. In the case RJR-Macdonald Inc. v. Canada discussed if the ban on advertising and the health warning requirement can be justified as a reasonable limit on freedom of expression. The final decision made by Parliament, passed a new law following most of guidelines. The Tabocco Products Control Act allows companies to advertise information and brant preferences, however the law forbids lifestyle advertising and promotions that attract younger crowds particularly. Where fifty percent of the package area has to include health warnings. (Kelly, and Manfredi, 2009). This made it clear that corporations have a constitutional right to advertise, though limitations are set in place to protect the common good.

The Keegstra (1990) case about a teacher that was charged under 281.2(2) of the Criminal Code and said it was an infringement on freedom of expression rights ensured by section 2(b) of the Charter. The case R. V. Keegstra: it was a job for the Crown to establish that limiting Mr. Keegstra anti-Semitic teaching was acceptable in a free and democratic society. Where the Supreme Court agreed that the Crown was necessary in restricting Mr. Keegstras freedom of expression because the effect of limiting Mr.Keegstra’s section 2(b) of the Charter was not as severe as the harm caused by Mr. Keegstra’s hate -spreading teachings. This case stresses that rights and freedoms guaranteed in this charter are not absolute. It was essential to restrict Mr. Keegstra freedom of speech in order to advocate his students’ rights to be protected from prejudice.

The government of Alberta has passed a legislation which forbids the media, newpapers and magazines from advertising any information which criticizes the oil manufacturing in Alberta. Opinion pieces, news articles, tv, broadcasting stations or other type of advertisement are also incorporated in the ban. The explanation given by the government following the passing the legislation is that the oil business is a essential part of the region and distributing and spreading wrong information and misrepresentation about it will damage the wealth of the region. The government argues that by banning the spread of false information, it will avoid corporations and organizations from destroying the economy of Alberta. This led to organizations such as environmental organization and other activist of free speech claimed that it violates their right under section 2(b) of the Charter. They argued that they have the right to communicate their worries and concerns of the oil business because the impacts of the oil business affect all individuals. However, the government argues that any criticism of the oil business is not true and for that reason it’s not protected under section 2(b). Furthermore, the legislation is protected under section 1and since the spread of any sort of false information about the oil business causes harm to the economy of the region, it is not protected under section 1. This legislation only bans information in Alberta, and not banning other pieces outside the region. The challenge has gone to the Supreme Court and is now being considered by five legal academics.

Freedom of expression and other liberal freedoms work to improve the condition of equality and social justice through the mechanism that are placed to ensure these fundamental freedoms are respected by Canadians and by all level of government. Everyone is treated equally under the law and section 2 of the Canadian Charter of Rights and Freedoms protects Canadians so they can follow their own faith, to have their own opinions and views, to express and to gather in non-violent assemblies, and to associate with other groups without being discriminated against or silenced by higher power, such as the government and the majority groups. This Charter right support equality and social justice because first it allows everyone to embrace themselves freely and gives everyone the right in Canada to practice these fundamental freedoms. As well these fundamental freedoms have certain limitations and restrictions in place to prevent discrimination based on age, sex, religion, sexual orientation, violent protest, and hatred propaganda towards another group or person.