Section 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: section 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 section 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 section 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 section 2(c) is largely derivative of freedom of expression under section 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). While acknowledging assembly can be a particular means or modality of expression, the intrinsic value of peaceful assembly as more than an incidental or second-order freedom has also been recognized (See, for example, Bérubé c. Ville de Québec, 2019 QCCA 1764 at paragraphs 43-46).

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 section 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 section 2(c) instead under section 2(b) and, even if submissions on section 2(c) are made, courts tend to resolve the issues under section 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 section 2(c) are sometimes analyzed with or in addition to those under section 2(b) but with courts indicating that the analysis under section 2(c) is subsumed under that of section 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; Villeneuve v. Montréal, 2016 QCCS 2888, at paragraphs 386 and following, judgment varied on other grounds 2018 QCCA 321).

Similarly, the practice of not conducting a separate 2(c) analysis in circumstances where the interests protected – the freedom to assemble in religious unity –  were “wholly subsumed” by an analysis under 2(a) (freedom of religion) was sustained on appeal in Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134. Where the factual matrix underpinning the various Charter claims was largely indistinguishable, “[t]he gravity of the infringement should not be inflated by an artificial tally of provisions” (paragraph 18).

Section 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.)). It protects the right to demonstrate on public streets (Garbeau v. Montréal, 2015 QCCS 5246). The freedom also extends to protecting the right to camp in a public park as part of protest activities (Batty, supra) and the ability to wear masks during a peaceful demonstration (Villeneuve, supra). However, it does not protect a particular venue for assembly (e.g. a clubhouse) (Attorney General of Ontario v. 2192 Dufferin Street, 2019 ONSC 615).

Section 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.

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 section 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.)). Similarly, section 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).

Other jurisprudence has treated such measures as infringing section 2(c), but as being justified under section 1 (Dieleman, supra; Batty, supra; Smiley supra).

Measures that have the effect of regulating assembly have not always been found to be reasonable so as to allow for a section 1 justification. A police perimeter, including baggage searches, around a public park where demonstrators were gathering to protest a meeting of the G20 was not a justifiable limit in the absence of legal authority to impose and enforce these conditions of entry (Stewart v. Toronto (Police Services Board), 2020 ONCA 255, overturning Stewart v. The Toronto Police Services Board, 2018 ONSC 2785). In Gammie v. South Bruce Peninsula (Town) 2014 ONSC 6209 and Villeneuve, supra, regulatory measures failed section 1 Charter analysis due to failure to respect the minimal impairment requirement. In Bérubé, supra, measures regulating public gatherings that were enforceable through a strict liability offence punishable by finewere similarly not justifiable under section 1. The measures, including a requirement to provide advance notice to police of the time, location and/or route of a demonstration and to not deviate from the notice provided, were not minimally impairing nor did their salutary effects outweigh their adverse impacts on protected freedoms.

The content is current up until 2023-07-31.