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This collection of 13 papers examines many of the freedoms listed in section 2 of the Charter that have been “forgotten” in the sense that they have not received (much) interpretation in jurisprudence or discussion in legal scholarship.
Among the fundamental freedoms guaranteed by section 2 of the Charter, only a few have been paid significant attention. The others—freedom of conscience, thought, belief, opinion, the press, other media of communication, peaceful assembly, and association—have been largely forgotten to date. What do these freedoms protect? Why are they “fundamental” to a liberal democracy, and how might they be realized? And what do we still need to learn about the meaning of freedom generally?
These questions and more are examined throughout this collection of essays, breaking new ground for human rights discourse in Canada and beyond and exploring the rich potential of the Charter’s “forgotten freedoms”. A recurring theme throughout is that these freedoms must not simply be “remembered”. If Canada is to be the free and democratic society contemplated by the Charter, these freedoms must also live and breathe within our constitutional practice.
The papers first discuss the jurisprudential background of the Charter and then the common themes and connections between different forgotten freedoms. The volume then analyzes in depth each of the fundamental freedoms. Also included is an appendix outlining the history of section 2 of the Charter and resulting sources, as well as comparative provisions in international human rights instruments, that may be used for further research.
Features of This Book
In-depth analysis of the jurisprudence, along with philosophical underpinnings, of the fundamental freedoms
Challenging insights inviting reflections on development of the interpretation of the fundamental freedoms
Discussion of practical issues related to exercising of fundamental freedoms
Diverse perspectives from leading authorities, including notable contributions from Jamie Cameron, Dwight Newman, Derek Ross and Mary Anne Waldron
The Collection of Papers
The Honourable Justice Peter D. Lauwers – Foreword
Dwight Newman, Derek Ross & Brian Bird – The Forgotten Fundamental Freedoms: An Introduction
Jamie Cameron – Big M’s Forgotten Legacy of Freedom
Dwight Newman – Recovering Forgotten Freedoms
Derek B.M. Ross – Truth-Seeking and the Unity of the Charter’s Fundamental Freedoms
Brian Bird – The Reasons for Freedom of Conscience
Barry W. Bussey – Blazing the Path: Freedom of Conscience is the Prototypical Right
Mary Anne Waldron – Putting Conscience Rights in a Box: Can We Take Off the Lid?
Blair A. Major – Religious Proselytization in Canadian Law: The Residue in the Periphery
Monica Fitzpatrick & Dwight Newman – Freedoms of Thought, Belief, and Opinion as Protected Inner Freedoms
Benjamin J. Oliphant – Would Independent Protection for Freedom of the Press Make a Difference? The Case of Vice Media v. Canada (Attorney General)
Sina Kazemi & Avnish Nanda – Section 2(b) of the Charter and the Regulation of Digital Expression
Nnaemeka Ezeani – Understanding Freedom of Peaceful Assembly in the Canadian Charter of Rights and Freedoms
Kristopher E.G. Kinsinger – Positive Freedoms and Peaceful Assemblies: Reenvisioning Section 2(c) of the Charter
André Schutten – Recovering Community: Addressing Judicial Blindspots on Freedom of Association
Melanie R. Bueckert – Evolution: On the Origins of Section 2
Recommended Reading For:
Constitutional and Human Rights Lawyers – learn more about recent developments in the interpretation of Charter rights and freedoms, and gain insights on their potential for the future
Police and Government Counsel – advise on limits on peaceful assembly
Media Lawyers – advise on interpretations of freedom of expression and freedom of press
Religious Organizations and Voluntary Associations – understand recent court approaches in interpreting Charter freedoms and other issues core to civic organizations and faith groups
Academia – insight on the latest developments in the all-time tension in the understanding of freedoms
The Forgotten Fundamental Freedoms of the Charter is a collection of papers developed out of the Supreme Court Law Review, Second Series.
Dwight Newman, K.C., B.A., M.A.T.S., J.D., M.Sc., B.C.L., M.Phil., D.Phil., is a Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan, where he started in a faculty position in 2005 and has also served a three-year term as Associate Dean. He has also taught during shorter visiting terms at Alberta, McGill and Oxford. In recent years, he has been a visiting fellow at Princeton, the Université de Montréal, Cambridge, the University of Western Australia and Oxford. Dr. Newman has published around 150 articles or book chapters and fifteen books. His books include two monographs on the duty to consult doctrine, a book on Natural Resource Jurisdiction in Canada (2013), both the Charter of Rights title of Halsbury’s Laws of Canada and The Law of the Canadian Constitution (a general treatise with co-author Justice Guy Régimbald) (2013; second edition 2017), and Mining Law of Canada (2018). His edited collections include Religious Freedom and Communities (2016), Business Implications of Aboriginal Law (2018), Indigenous-Industry Agreements, Natural Resources, and the Law (co-edited in 2021) and the Edward Elgar Research Handbook on the International Law of Indigenous Rights (2022).
His writing has been cited by all levels of Canadian courts, including repeatedly by the Supreme Court of Canada. He is a Munk Senior Fellow of the Macdonald-Laurier Institute and has contributed to policy discussions by publishing a number of think tank reports. He has also served as an expert member of the International Law Association (ILA) Committee on Implementation of the Rights of Indigenous Peoples and contributed to discussions on international norms on related issues. He has delivered dozens of presentations to a variety of audiences on six continents and has published many op eds in leading Canadian and American newspapers. Prior to entering a faculty role, Dr. Newman clerked for Chief Justice Lamer and Justice LeBel at the Supreme Court of Canada, worked for NGOs in South Africa and Hong Kong and for the Canadian Department of Justice, and completed his graduate studies at Oxford University as a Rhodes Scholar. He is a member of the Ontario and Saskatchewan bars and he has done legal work for industry, government and Indigenous communities on constitutional law issues, as well as consulting work on resource issues for international investment entities. In 2017, he was named to the College of the Royal Society of Canada, and in 2018 he was designated a Queen’s Counsel (now King’s Counsel).
Derek B.M. Ross, LL.B. (Western), LL.M. (Toronto), is Executive Director and General Counsel for Christian Legal Fellowship (CLF). He has appeared before all levels of court, including the Supreme Court of Canada, and has acted for public interest interveners in a number of cases involving the Canadian Charter of Rights and Freedoms. He has also appeared before legislative and Parliamentary committees to present on legal and constitutional issues.
Derek is a centre associate with the University of British Columbia’s Centre for Constitutional Law and Legal Studies, and a former Vice-Chair of the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights Section. Derek also served as editor/co-editor of Assisted Death: Legal, Social and Ethical Issues after Carter (2018), Canadian Pluralism and the Charter: Moral Diversity in a Free and Democratic Society (2019), The Forgotten Fundamental Freedoms of the Charter (2020), and Forgotten Foundations of the Canadian Constitution (2022).
Sarah Mix-Ross, B.A., M.S.W., J.D., serves as associate legal counsel at Christian Legal Fellowship. Sarah was called to the Ontario Bar in 2016 after articling with an insurance defence boutique in Toronto. In 2015, Sarah earned a Juris Doctor cum laude from the University of Ottawa (Dispute Resolute and Professionalism specialization) where she was the recipient of an oral advocacy award. Sarah also earned a Master of Social Work from the University of Windsor in 2012 and a Bachelor of Arts (Honours, with distinction) from Western University in 2010. Sarah served as Assistant Editor of the Supreme Court Law Review, 2nd series Volume 91 (2019) and provided editorial support for Volume 85 (2018). Sarah serves as Associate Editor of the Christian Legal Journal, CLF’s periodical examining the relationship between law and religion. Sarah serves as an Executive Member of the Canadian Bar Association’s Health Law section and the Ontario Bar Association’s Child and Youth Law section. Sarah remains an active alumni member of the University of Ottawa Faculty of Law in both the Legal Writing Academy and JurisMentor programs. Sarah serves on the board of the Brescia Alumnae Association (Western University).
Brian Bird is a Lecturer at the Peter A. Allard School of Law at the University of British Columbia. In 2019-2020, Brian was a John and Daria Barry Postdoctoral Research Fellow in the James Madison Program in American Ideals and Institutions at Princeton University. His research focuses on constitutional law, constitutional theory, and human rights. His writing on these topics has appeared in several academic journals and media outlets. A lawyer by training, Brian clerked for judges at the Supreme Court of British Columbia and for Justice Andromache Karakatsanis at the Supreme Court of Canada. Brian completed his doctorate in law at McGill University. He also holds a B.C.L. from the University of Oxford, a J.D. from the University of Victoria, and a B.A. from Simon Fraser University.
