Canadian Charter of Rights and Freedoms doesn’t guarantee the right to peaceful assembly in times of emergency

Courts agree: COVID measures violate some freedoms, but everyone's health trumps that

Another anti-mask and anti-lockdown protest is expected in Barrie on Saturday afternoon. It would be the latest in a string of gatherings authorities say violates current COVID-19 measures.

Many protesters say current restrictions violate the Canadian Charter of Rights and Freedoms, specifically, their right to peaceful assembly. This claim became loudest shortly after the City of Barrie fenced off the site of previous protests, Meridian Place.

Technically, they’re not wrong. But there’s more to the Charter than that.

“Within the Charter of Rights and Freedoms, you’ll see the right to assembly, the right to freedom of expression. These are fundamental rights for Canadians, and it’s certainly something that we’ve prided ourselves in,” said Barrie 360’s legal correspondent, Barriston Law Senior Associate Joshua Valler. “The thing that most Canadians need to remember, something that is very important, is that Section One of the Charter of Rights and Freedoms provides limitations on how far those freedoms go.”

“Take hate speech, for example. To limit expressions of hatred towards an identifiable group, that’s justified,” he continued. “Right now, we’re in the midst of a global pandemic. And there’s this significant concern, justified concern, that if people are able to gather or assemble, however they see fit, and use the protection of the Charter of Rights and Freedoms to do so, that might cause further issues with COVID-19 and the spread of the pandemic.”

Valler points out there have already been court challenges against many of these measures across the country. And the courts appear sympathetic to the argument, but not blind to the pandemic. “If we look at the case law across Canada, in recent case law, they held that, yeah, absolutely, they (COVID-19 restrictions) do violate the fundamental rights and freedoms of Canadian citizens. However, that violation is justified to ensure the protection of society at large, preventing the spread of COVID-19,” Valler said.

While the Charter does provide the right to peaceful assembly, and it stipulates that right can be waived for the greater good when necessary, it does impose a time limit on that waiver. “There is a time limit, and it’s got to be proportional to what’s going on. With COVID-19, what’s proportional could change from day to day,” continued Valler. “When we’re dealing with the third wave and increasing numbers of COVID patients, in trying to protect our healthcare system, it was proportionate. Is that proportionate in a month or two from now? The answer could very well be no.”

The fear among many is that once these rights are gone, they’re gone for good. “That’s a valid concern. Right now, we’re dealing with something that most Canadians haven’t seen, ever. And that’s a fundamental change to the rights and freedoms with respect to the right to assembly,” added Valler. “That’s one of the things that we’ve prided ourselves in as Canadians is our right to assemble, our right to express ourselves freely in the manner that we see fit. And, overnight, that changed last March. So, is there a valid concern that we won’t get that back? Absolutely.”

“The nice thing is, we have a justice system that is committed, and a court system that is committed, to ensuring that the Charter of Rights and Freedoms are followed,” concluded Valler. “If there is government overreach, and they’re not being proportionate to what’s going on in the present day, then that can be challenged in court. And that can be overturned in court as well.”

For more on the Canadian Charter of Rights and Freedoms, visit the Government of Canada website.