Paragraph 2(c) – Freedom of peaceful assembly

Provision

2. Everyone has the following fundamental freedoms:

  1. freedom of peaceful assembly;

Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: paragraph 1(e) of the Canadian Bill of Rights; article 21 of the International Covenant on Civil and Political Rights; and article 15 of the Convention on the Rights of the Child.

See also the following international, regional and comparative law instruments that are not binding on Canada but include Similar provisions: First Amendment of the American Bill of Rights; article 20(1) of the Universal Declaration of Human Rights; article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and article 15 of the American Convention on Human Rights.

Purpose

Jurisprudence has not provided extensive commentary on the purpose of paragraph 2(c). However, what little there is would appear to indicate that freedom of peaceful assembly is geared towards protecting the physical gathering together of people (Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FCR 406, 1994 CanLII 3453 (FCA)). The object or purpose of the gathering, however, is not protected under paragraph 2(c) (R. v. Normore, 2005 ABQB 75 at page 3; Roach v. Canada, supra).

As discussed further below, there is a body of case law indicating that the purpose of freedom of peaceful assembly under paragraph 2(c) is largely derivative of freedom of expression under paragraph 2(b): “Freedom of assembly is "speech in action"” (R. v. Behrens, [2001] O.J. No. 245 (Ont. C.J.), at paragraph 36 referring to Ontario (A.G.) v. Dieleman (1994) 20 O.R. (3d) 229 (Ont. Ct. (Gen. Div.)) at pages 329-330).

The Supreme Court has referred collectively to the section 2 freedoms as protecting rights fundamental to Canada’s liberal democratic society (Mounted Police Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3 at paragraph 48).

Analysis

Freedom of peaceful assembly protected under paragraph 2(c) of the Charter has received only limited judicial interpretation. Given its strong expressive component, applicants have been inclined to argue Charter issues potentially related to paragraph 2(c) instead under paragraph 2(b), and even if submissions on paragraph 2(c) are made, courts tend to resolve the issues under paragraph 2(b) (see, e.g., B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., [2009] B.C.J. No. 155 (B.C.C.A.) at paragraph 39, leave to appeal refused, [2009] S.C.C.A. No. 160; Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208). Alternatively, but to similar effect, issues related to paragraph 2(c) are sometimes analyzed with or in addition to those under paragraph 2(b) but with courts indicating that the analysis under paragraph 2(c) is subsumed under that of paragraph 2(b) or without any meaningful distinction in the analysis (Behrens, supra; Dieleman, supra; R. v. Semple, 2004 ONCJ 55; Batty v. Toronto (City), [2011] O.J. No. 5158 (ONSC); Smiley v. Ottawa (City), 2012 ONCJ 479).

Paragraph 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies. (Dieleman, supra; R. v. Collins, [1982] O.J. No. 2506 (Co. Ct.); Fraser v. Nova Scotia (A.G.) (1986), 30 D.L.R. (4th) 340 (N.S.S.C.)). The freedom extends also to protecting the right to camp in a public park as part of protest activities (Batty, supra). Nevertheless, paragraph 2(c) was found not to be infringed by measures restricting residence in public spaces by the homeless; in that case, however, the measures were found to infringe section 7 of the Charter (Abbotsford (City) v. Shantz, 2015 BCSC 1909).

Some jurisprudence has found that legal measures affecting freedom of assembly through the reasonable regulation of public space and associated public health and safety matters do not infringe paragraph 2(c) (Pitts Atlantic Construction Ltd. v. United Association of Journeymen and Apprentices of the Plumbing Industry of the United States and Canada, Local 740 (1984), 7 D.L.R. (4th) 609 (Nfld. C.A.); Hussain v. Toronto (City) [2016] O.J. No. 2768 (Div. Ct.)). Other jurisprudence has treated such measures as infringing paragraph 2(c), but as being justified under section 1 (Dieleman, supra; Batty, supra; Smiley supra). Measures that have the effect of regulating assembly, however, will not always be found to be reasonable so as to allow for a section 1 justification (see, e.g., Gammie v. South Bruce Peninsula (Town) 2014 ONSC 6209 where such measures failed section 1 Charter analysis due to failure to respect the minimal impairment requirement).

Paragraph 2(c) guarantees the right to peaceful assembly; it does not protect riots and gatherings that seriously disturb the peace: R. v. Lecompte, [2000] J.Q. No. 2452 (Que. C.A.). It has been stated that the right to freedom of assembly, along with freedom of expression, does not include the right to physically impede or blockade lawful activities: Guelph (City) v. Soltys, [2009] O.J. No. 3369 (Ont. Sup. Ct. Jus), at paragraph 26.

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