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Charter - s.2(b) Freedom of Expression (6). Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court considers Charter s.2(c) ['freedom of peaceful assembly'], here in contrast with s.2(b) ['freedom of expression']:[490] Given that the Federal Court had previously found that the Regulations violated the freedom of expression guarantee in paragraph 2(b) of the Charter because they applied to protesters who were not causing a breach of the peace, it is unclear why it found that the Regulations did not similarly violate the freedom of assembly of these peaceable protesters.
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[493] There is no question that freedom of expression and freedom of assembly are closely related. Indeed, freedom of assembly has been described as "“speech in action”": Ontario (A.G.) v. Dieleman (1994), 1994 CanLII 10546 (ON SC), 20 O.R. (3d) 229, [1994] O.J. No. 1864 (Gen. Div.) at pp. 329–330. Moreover, in many cases (including this one) the factual matrix underpinning the paragraph 2(c) Charter claim is largely indistinguishable from that underpinning the paragraph 2(b) claim.
[494] For this reason, courts have often declined to address multiple section 2 Charter claims separately, holding that the finding of an infringement of one fundamental freedom—such as freedom of expression—is sufficient to account for both the expressive and associated rights of claimants.
[495] For example, in Trinity Western University the Supreme Court was called upon to review the decision of a provincial law society denying approval to a proposed law school that would require students to sign, as a condition of admission, a covenant committing to "“voluntarily abstain”" from a number of actions, including "“sexual intimacy that violates the sacredness of marriage between a man and a woman”".
[496] The majority of the Supreme Court held that the decision not to approve the university’s proposed law school represented a proportionate balance between students’ paragraph 2(a) right to freedom of conscience and religion and the Law Society’s overarching objective of upholding and protecting the public interest in the administration of justice.
[497] Although claims were also advanced under paragraphs 2(b) and 2(c) of the Charter, the Supreme Court declined to deal with these claims. In addition to noting that the submissions of the parties had largely focussed on the religious freedom claim, the Court was satisfied that the paragraph 2(a) claim was "“sufficient to account for the expressive, associational, and equality rights of TWU’s community members in the analysis”": Trinity Western University at para. 77.
[498] The Court of Appeal for Ontario came to a similar conclusion in Figueiras, a case involving police actions during the 2010 G20 summit in Toronto. Having found that a protester’s paragraph 2(b) right to freedom of expression had been infringed, the Court went on to conclude that it was unnecessary to address the protester’s paragraph 2(c) argument as "“issues related to [the protester’s] freedom of assembly are subsumed by the s. 2(b) analysis”": at para. 78.
[499] The British Columbia Court of Appeal came to a similar conclusion in British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39 [BC Teachers’ Federation] at para. 39, leave to appeal to SCC refused, 33113 (20 August 2009). There, the appellants alleged that the definition of the word "“strike”" in British Columbia’s labour legislation infringed the right of union members to engage in political protests, contrary to paragraphs 2(b), (c) and (d) of the Charter.
[500] The British Columbia Court of Appeal found that the effect of the strike definition trenched on the freedom of expression guaranteed by paragraph 2(b) of the Charter. It went on to find that any paragraph 2(c) freedom of association issue in that case was subsumed under the issues related to the right of free expression under paragraph 2(b): BC Teachers’ Federation at para. 39.
[501] The most detailed discussion of this issue is found in the Trinity Bible Chapel case, a case involving capacity restrictions imposed by the Government of Ontario during the COVID-19 pandemic that limited attendance at indoor and outdoor gatherings, including religious gatherings. Two churches brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed all four of section 2’s fundamental freedoms. After determining that paragraph 2(a)’s guarantee of freedom of religion had been infringed, the motions judge declined to address arguments made under paragraphs 2(b), (c) or (d): Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344 at para. 115.
[502] The Court of Appeal for Ontario upheld this decision, finding that the alleged infringement of the appellants’ right to freedom of religion "“accounted for their related rights to express their religious beliefs, assemble for the purpose of engaging in religious activity, and associate with others who share their faith.”": Trinity Bible Chapel at para. 67.
[503] After reviewing the jurisprudence discussed above, the Court went on to hold that "“where an examination of the factual matrix reveals that one claimed section 2 right subsumes others, it is not necessary to consider the other section 2 claims (though, of course, there is no bar to a judge doing so)”". The Court went on to observe that "“this approach is particularly apposite in the section 2 context where the rights are related fundamental freedoms, whereas it may have less application across rights (for example, as between sections 2, 7, and 15 rights)”": Trinity Bible Chapel at para. 71.
[504] The same may be said here.
[505] We are satisfied that protesters’ paragraph 2(b) right to freedom of expression sufficiently accounted for their related right to associate with others who shared their views. Consequently, we decline to address the arguments raised by the cross-appeal, and it will be dismissed, without costs. That said, we should not be understood to be agreeing with the Federal Court’s analysis of the paragraph 2(c) issue.
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