Individuality and Community: Expounding the Fundamental Freedoms’ Normative Antinomy

by Anthony Sangiuliano · September 14, 2014

It has been said that the Canadian Charter of Rights and Freedoms is a liberal document. On this view, the Charter presupposes an individualistic conception of the rights-bearer. It conceives of persons as having pre-politically discrete identities and as being free, autonomous, and independent of the community. Its function is to “police the boundary that separates the political and the collective from the pre-political and the individual” (Allan C Hutchinson & Andrew Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38:3 UTLJ 278 at 284).

Although individualism permeates the Supreme Court of Canada’s section 2 jurisprudence, notions of community are also prevalent therein. The Court’s disagreements on the scope of religious freedom disclose recognition of a link between religion and community. Its views on the limits of expressive freedom disclose how expression is realized in communal life. The evolution of its freedom of association jurisprudence discloses recognition of groups as rights-bearers.

The tension between individuality and community is the normative antinomy at the heart of the fundamental freedoms. I expound this antinomy in what follows.

Section 2(a) of the Charter guarantees freedom of religion. It is infringed if a claimant’s sincere religious belief is non-trivially interfered with. The claimant need not demonstrate that other members of her religious community share her belief. As Justice Iacobucci stated in Syndicat Northcrest v Amselem, this subjective approach to section 2(a) reflects “the notion of personal choice and individual autonomy and freedom” ([2004] 2 SCR 551, para 40 [Amselem]). Personal choice reappears when the Court assesses limits on section 2(a) under section 1 of the Charter. Deleterious effects on religious freedom are those that deprive the claimant of a meaningful choice to follow her religious beliefs (Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567, para 88).

However, in Amselem, Justice Bastarache dissented and defined religious freedom narrowly. He held that a section 2(a) claimant must demonstrate that her religious belief follows objectively from religious precepts shared by her religious community. Acknowledging that religion “has genuine social significance and involves a relationship with others”(Amselem, para 137), Justice Bastarache’s definition of religious freedom links religion to community.

This link manifests in other areas of the section 2(a) jurisprudence. For example, the Supreme Court has held that state favouritism towards a particular religion also infringes section 2(a). According to the principle of state neutrality, favouritism is “incompatible with the multicultural reality of Canadian society” (SL v Commission scolaire des Chênes, [2012] 1 SCR 235, at para 21). Favouritism disrespects non-favoured religious communities within a society containing a diverse collection of religious adherents. It relegates the status of non-favoured communities’ members to less than full participants in the political community as a whole. Thus, the neutrality principle reveals how respect for an individual’s identity as an equal participant in political society depends on respect for the religious community to which she belongs.

Similarly, legally authorized limits on hate speech directed at religious adherents have the pressing and substantial objective of preventing the marginalization of adherents based on their membership in a religious community. Hate speech legitimates violence against religious groups and diminishes their standing within the larger political community. It portrays religious groups as unworthy of equal status and forces them to argue for their standing as a precondition of communal participation (Saskatchewan (Human Rights Commission) v Whatcott, [2013] 1 SCR 467, para 75). Hate speech is repugnant, therefore, because it disrespects the link between religious communities and the larger political community.

III

Section 2(b) of the Charter guarantees freedom of expression. It’s content is anchored in the notion of individualism: Self-realization of individual character and potentiality is the only intrinsic value underlying section 2(b) (R v Keegstra, [1990] 3 SCR 697, para 176 [Keegstra]). The need to preserve the diverse ways in which individual choices can be expressed also explains section 2(b)’s characteristically broad scope (Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, para 41).

However, the human activity of expression also has communal value. The societal exchange of diverse ideas instrumentally promotes democratic governance and the search for truth within a community (Keegstra, paras 169-73). Furthermore, expression has individualistic value for both the speaker and listener (para 177). The individualistic dimension of expression therefore emerges through public discourse, communicative relationships between speakers and listeners, and the communal nature of individuals (Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), ch 1).

It is justifiable to deny protection to or limit expressive activities, such as violent expression (R v Khawaja, [2012] 3 SCR 555, para 70) that undermine the very rationales for constitutionally protecting expression. As just discussed, these rationales concern communicative relations between individuals. The justifiability of limiting expressive activities that undermine these rationales entails that limits on expressive freedom are justified when they are incompatible with communicative relations. For instance, violent expression is incompatible with communicative relations because of how it aims to annihilate the listener. Manipulative or irrational types of expression are also incompatible with communicative relations. Hence, limits on advertising directed at children are justified limits on manipulative expression (see generally Irwin Toy). And hate speech prohibitions, which limit emotional expression causing harmful discriminatory effects, are justified limits on irrational expression (Mark J Freiman, “Hate Speech and the Reasonable Supreme Court of Canada” (2013) 63 Sup Ct L Rev (2d) 295 at 302-04).

In Harper v Canada (Attorney General), [2004] 1 SCR 827, the Court upheld limits on citizens’ ability to finance federal election campaigns, a form of political expression that warrants enhanced constitutional protection (para 44). Justice Bastarache adopted an egalitarian model of electoral fairness, which requires equal political participation for all citizens and condones restrictions of political expression that monopolize public discourse and muzzle less wealthy citizens. Justice Bastarache rejected a libertarian model of elections, which mandates as few restrictions on campaign financing as possible (para 62).

Harper demonstrates that expressive freedom implicates “the realization of individual agency and identity in community life” (Richard Moon, “Accommodation Without Compromise: Comment on Alberta v. Hutterian Brethren of Wilson Colony” (2010) 51 Sup Ct L Rev (2d) 95 at 113). The value of expressive activity can be understood only in the context of the communicative community in which it occurs. Even the most highly valued forms of expression are undesirable if they marginalize other participants in the community. If protecting expressive freedom were exclusively concerned with protecting individuality, Justice Bastarache would have adopted a libertarian model of electoral fairness in Harper. Egalitarianism comprehends the whole community. Libertarianism focuses primarily on individuality.

Section 2(d) of the Charter guarantees freedom of association. It was initially premised on individualism. In the Alberta Reference, Justice McIntyre held that, while it is impossible to attain individual goals independently of others, the bearers of associational freedom are individuals, not groups (Reference re Public Service Employee Relations Act, [1987] 1 SCR 313, paras 152, 155). He rejected the suggestion that section 2(d) protects all activities which are essential to an association’s goals. This suggestion would permit associations’ section 2(d) rights to exceed those of individuals (ibid, para 171). Rejecting it instantiated liberalism’s preference for individualism.

In Dunmore v Ontario (Attorney General), Justice Bastarache held that associations must have rights exceeding what individuals have rights to do outside associations. Some collective activities have no individual analogue. Yet individuals’ associational freedom would be meaningless if section 2(d) did not protect these collective activities. There are qualitative differences between individuals and groups: “[T]he community assumes a life of its own and develops needs and priorities different from those of its individual members” (Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016, para 17). Justice Bastarache departed from liberalism’s preference for individualism by highlighting the interdependence of individuality and community and by constitutionally safeguarding a form of communality.

The tension between individuality and community under section 2(d) is not entirely settled. In Ontario (Attorney General) v Fraser, Justice Rothstein, who dissented, vigorously argued that neither the text of section 2(d) nor the qualitative difference between group and individual activities supports the view that associational freedom guarantees group rights (Ontario (Attorney General) v Fraser, [2011] 2 SCR 3, paras 178-87). The Fraser majority’s response was, however, comparatively perfunctory (ibid, paras 63-66).

The issue of group rights under section 2(d) could be reconsidered when the Court resolves new freedom of association appeals this year (See e.g. Saskatchewan Federation of Labour v Saskatchewan, 2013 SKCA 43).

Comparing the jurisprudence on the fundamental freedoms of religion, expression, and association reveals how the freedoms contain at their heart a normative antinomy between individuality and community. Appreciating this antinomy should provoke us to question whether the Charter really functions as a liberal document after all.