Positive Freedoms and Peaceful Assemblies: Reenvisioning Section 2(c) of the Charter

Abstract

This article considers the scope of freedom of peaceful assembly under section 2(c) of the Canadian Charter of Rights and Freedoms. Although this guarantee is one of the least considered of section 2’s protections, it remains one of the ripest for judicial exploration. In most cases, the exercise of freedom of peaceful assembly will require meaningful access to physical space. Where state action or inaction prevents claimants from accessing space in which to peacefully assemble, section 2(c) may thus impose positive obligations on state actors. This will be especially true where non-state actors seek to prevent peaceful assemblies from taking place through the hostile exercise of the “heckler’s veto”. This article argues that, in such cases, the circumscribed intervention of the state may be required to ensure that claimants are able to freely exercise their constitutional entitlements. While further acknowledging that the Charter cannot compel lawmakers to enact specific statutes or regulations, this article concludes that legislatures may be under a political (i.e., unenforceable) expectation to pass laws which supplement section 2(c)’s entitlements by protecting vulnerable assemblies from antagonistic third parties.

Keywords: fundamental freedoms, freedom of peaceful assembly, freedom of assembly, charter of rights and freedoms, section 2(c), heckler's veto, positive rights, constitutional law, human rights