Section 2 of the Canadian Charter of Rights and Freedoms
Following this test in Multani v Commission scolaire Marguerite‑Bourgeoys,[8] the Court found freedom of religion should protect a non-violent Sikh student's right to wear a kirpan (dagger) in school.
In R v NS,[9] the Supreme Court sought to find a middle ground on the issue of whether a witness can wear a face-covering niqāb while testifying in a criminal trial.
[10] The right has not spawned a great deal of case law, although Justice Bertha Wilson did rely on it in her opinion in R v Morgentaler.
[11] Finding laws against abortion to be a breach of the rights to liberty and security of the person under section 7 of the Charter, Wilson then argued this infringement could not be justified as being consistent with fundamental justice.
The legal protections found under fundamental justice could be defined as including other rights under the Charter, and in particular abortion laws breached freedom of conscience.
The federal and provincial negotiators found the right too difficult to define, and Chrétien eventually agreed to remove it.
[13] Justice Peter Cory wrote that it "is difficult to imagine a guaranteed right more important to a democratic society".
An Implied Bill of Rights theory further stated governments were limited in their abilities to infringe upon free speech under the preamble of the Constitution Act, 1867.
[22] A law will be found to restrict expression if it has the effect of frustrating "the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing".
[28] The need to protect freedom of expression is considered a guiding principle of interpretation in civil cases between individuals.
In Crookes v. Newton,[29] for example, the Supreme Court of Canada found that section 2(b) must be considered in determining the extent to which common law libel restrictions should apply to new technologies such as internet hyperlinks.
In 2011, Occupy Canada's protests in public parks raised questions of whether their eviction was prohibited by freedom of assembly, as well as expression and association.
[32] Consequently, government legislation affecting the powers of established labour associations do not necessarily invoke section 2(d).
The Court ruled in this case that legislation that "substantially interferes" with the process of collective bargaining is a section 2(d) infringement.
[34] It is not certain whether the decision in Health Services overturns jurisprudence arising from the so-called "labour trilogy" cases of 1987 which found that section 2(d) did not include a right to collective bargaining.
Fraser was affirmed and expanded upon by the Court of Appeal for Ontario in 2012 in Association of Justice Counsel v Canada (AG).
In Delisle v Canada (Deputy AG),[38] members of the Royal Canadian Mounted Police were excluded from the public services legislation.
The Supreme Court overturned Delisle in Mounted Police Association of Ontario v Canada, concluding that the exclusion of RCMP members from collective bargaining was unconstitutional.
More generally, the Supreme Court had stated that the right is violated only when the mandatory association imposes "ideological conformity".
[41] Such violations have also mostly been found by the Supreme Court to be justified under section 1, resulting in a right not to associate that has more theoretical than practical effects.
In Advance Cutting & Coring,[42] the Supreme Court was called to examine the constitutional validity of a Quebec law that required all persons working in the province's construction industry to join a designated union.
Eight of nine judges (Justice Claire L'Heureux-Dubé dissenting) confirmed that section 2 includes, to at least some degree, the negative right to not associate.
But with the same majority (judge Frank Iacobucci "switching camps" on the two issues and citing a "unique and complex historical context" in Quebec), the Court deemed the law to be justified in a free and democratic society under section 1 and thus constitutional.
