A concept of peaceful assembly under s.2(c) of the Charter
Courtesy of the Rouleau Commission I developed a late-onset interest in freedom of peaceful assembly (FPA) and s.2(c) of the Charter. Since then it has been an ongoing concern to me that in more than forty years s.2(c) has not received an authoritative interpretation, much less been considered or discussed in any depth by the Supreme Court of Canada. The right to assemble entered the constitutional vocabulary after the Freedom Convoy in 2022, the university encampments of 2024, and other forms of assembly, like gatherings in violation of COVID restrictions.
FPA now receives mention in public discourse and the jurisprudence but is not treated as a stand-alone Charter entitlement. All too often it is assumed, without much deliberation, that FPA simply represents a +1 or plural of s.2(b)’s guarantee of expressive freedom. Under that view freedom of assembly is subsumed in expressive freedom because any activity s.2(c) might protect is presumptively covered by s.2(b). In short, FPA essentially duplicates s.2(b) and may have ornamental value but little doctrinal or substantive content.
A concept of s.2(c) as s.2(b) + 1 or more is supported by the “factual matrix” principle of recent s.2 jurisprudence. Pursuant to that principle, courts are not required to address freedom of assembly where the factual matrix for s.2(b) and (c) is the same. In other words, FPA only matters when there is a different factual matrix. Yet on the interpretation above – that s.2(c) duplicates s.2(b)’s coverage – it is difficult to imagine what a different factual matrix might look like.
These assumptions and views assign little or no significance to the difference between guarantees that serve distinctive values. Section 2(c)’s doctrinal future requires rectification of these mistaken assumptions about FPA and its relationship to s.2(b). The objective of this blog is to explain that s.2(c) does not duplicate s.2(b) and to outline a concept of peaceful assembly.
Section 2(c)’s role in s.2 of the Charter
An assembly – defined as a gathering of two or more persons – is expressive in and of itself. For that reason, and even without considering s.2(b)’s expansive definition of expression as “any attempt to convey meaning”, it might be difficult to see how s.2(b) leaves a gap and why the Charter provides a separate textual guarantee for the right to assemble.
First and foremost, an assembly is a collective entity engaged in a form of collective expression. The deemed overlap between freedom of expression and peaceful assembly obscures the purpose and value of collective entitlement, and conflating s.2(b) and (c) treats a collective entitlement as an individual right. More than simply an extension of an individual’s right of expressive freedom, a gathering or assembly constitutes a different form of expression that alters the nature of the entitlement.
The misstep in conflating these guarantees is critical because implications flow from the distinction between individual and collective rights. An assembly joins voices in solidarity to leverage a form of collective performative expression. An assembly is not merely expressive but more precisely is performative in nature, communicating its message through expressive actions and activities that can range from silent or passive communication up to marching, singing, and almost any form of human activity done in concert. While s.2(b)’s definition of expression may be broad enough to include performative forms of expression, it is questionable how far a guarantee of individual rights can stretch to encompass and govern the constitutional rights of gatherings, including mass protests with hundreds or thousands of participants.
It is equally critical that an assembly is spatial in nature, and that s.2(c) can have little meaning without access to space for purposes of gathering and communicating a message. For that reason, and unlike freedom of expression under s.2(b), access to space is a singular and indispensable element of s.2(c)’s guarantee of peaceful assembly.
Nor is it well understood that s.2(c) protects and serves distinct values. An assembly incorporates and advances s.2(b)’s familiar underlying values of self-government, truth seeking and self-realization, but adds dynamic force in the “critical expressive benefits of proximity and immediacy” that inhere in “embodied places”. (Butler, Performative Assembly) The power to gather and leverage voice in solidarity is an “important political prerogative” and plural form of performativity distinct from an individual’s right to speak and say whatever they want. (Butler, Performative Assembly) By protecting collective expression s.2(c) promotes a culture of open democracy, enables non-violent participation in public affairs, and invigorates dialogue on issues of public interest. These values of collective entitlement transcend s.2(b) and must ground a conception of peaceful assembly under s.2(c).
Overlooking s.2(c) therefore leaves a gap in the Charter’s conception of rights. Treating the right to assemble as a subset of expressive freedom dilutes the role collective expression plays in our system of participatory democracy. Doing so discounts the rights of protest assemblies and also draws attention away from a history of repression. It should not be forgotten, for example, that legislation in the US once banned blacks from congregating because all such gatherings were considered presumptively dangerous. In Canada, the Indian Act banned potlatch celebrations, which were a core cultural practice of Pacific Northwest communities, for about 70 years from 1888 to 1951. In addition, the federal government banned the sun dance, Coast Salish dancing and the celebration of pow wows. Beyond the violation of Indigenous cultural sovereignty, these restrictions are an affront to any concept of peaceful assembly.
These are some of the reasons why it is imperative to develop a conception of peaceful assembly under s.2(c).
The scope of entitlement under s.2(c)
Up to now, it has been easier to subsume s.2(c) in s.2(b) than grapple with the difficult questions of interpretation the guarantee poses. In definitional terms, the boundaries of a collective entity that is dynamic, organic and fluid, picking up and shedding participants in the moment, can be difficult to ascertain. The inchoate nature of an assembly and its daunting variations in size, scale, and magnitude make it challenging to define who or what is protected with a sufficient degree of specificity. A further complication concerns the relationship between the rights of participants exercising their individual right of expressive freedom and the rights of the assembly, qua assembly.
Moreover, public assemblies leverage forms of performative communication and choose disruptive strategies to elevate their presence and compel the public to experience their message. More generally, any gathering in public space is disruptive because an assembly’s mere presence is a disruption at some level. This leads to the paradox that what makes protest assemblies powerful also invites regulation. Developing a doctrinal framework that can address the dilemma of simultaneously protecting and regulating freedom of assembly is no easy task.
Despite those challenges, a framework of principle for FPA under the Charter must begin with a robust conception of peaceful assembly under s.2(c). The widespread assumption that s.2(c) is interchangeable with s.2(b) supports a broad and symmetrical interpretation of peaceful assembly. Like s.2(b)’s definition of expression as any attempt to convey meaning, freedom of peaceful assembly prima facie extends to any group of two or more persons that gathers for communicative or collective purposes. In addition and to mirror s.2(b)’s exclusion of violent forms of expression, s.2(c) must focus on the element of violence in defining what assemblies are unpeaceful and therefore outside the scope of the Charter. Assemblies in public space may be disruptive and individuals may commit acts of illegality, but s.2(c) protects the entitlement up to the point of violence, threats of violence, or an intention to commit acts of violence. In short, an assembly is only unpeaceful and outside s.2(c) when it crosses the line to adopt violent objectives and actions.
An interpretation of s.2(c) that narrowly excludes violent gatherings is essential to the concept of an assembly. Even as the disruptive impact of an assembly can range from inconsequential up to unmitigated chaos and disorder it is wrong in principle to treat this as an element of entitlement and exclude disruptive assemblies from s.2(c). Doing so would negate the guarantee’s core value of enabling and protecting the role of collective voice in participatory democracy.
It is nonetheless clear that a broad conception of the guarantee defies instincts that disruptive and illegal acts should be excluded from s.2(c). On this point it is important that the entitlement belongs to the collective entity and not the individuals who comprise it. Individuals who engage in actions that might be illegal or disruptive enough to attract a criminal or other legal sanction remain responsible, in law, for their transgressions. In this way, the acts of individuals – in general – are not imputed to the assembly unless adopted by the assembly or committed in furtherance of the assembly’s express or intended purposes. As a collective entity, the assembly is subject to limits for its own disruptive or illegal actions – as a collective entity – but only under s.1. In principle, disruption raises issue of limits, not of entitlement.
A second question about entitlement arises from the collective and spatial elements of an assembly. As stated above, FPA has little or no meaning without access to public space for purposes of engaging in collective and performative expression. Though COVID regulations are a recent example, the state places few restrictions on assemblies that take place in private space. Access to publicly owned space is more contentious. Under s.2(b), public or government-owned property is accessible for expressive purposes, but only where rights-seekers meet the burden under s.2(b) of demonstrating that their expression serves s.2(b)’s underlying values and proposes an appropriate use of space.
That doctrine should not apply to FPA because access to public space is part of the entitlement. In other words, access to public property for purposes of peaceful assembly is prima facie protected by s.2(c), but subject to evidence that public property is not accessible for assembly purposes. While exclusions are permissible in a variety of contexts because of the private purposes and functional integrity of much public property, access is at the core of s.2(c). The right to assemble is unlike expressive freedom and on this issue s.2(c)’s entitlement should receive a different and more generous interpretation. It is therefore unusual but sound in principle to place a burden on the property owner to establish that particular space is not accessible for s.2(c) purposes.
These two principles of interpretation support a broad conception aimed at protecting collective democratic participation in public space, and shift difficult questions to s.1 and the analysis of reasonable limits.
Reasonable limits under section 1
Under the conception of s.2(c) sketched here, freedom of assembly is a vast entitlement that can incorporate an endless variety of gatherings, in private or public space, and include forms of encampment and occupation. The question of reasonable limits under s.1 must address issues that include prior approval schemes, policing, and the status of counter-protestors who may confront and challenge an assembly’s access to and collective expression in public space. The justifiability of limits also raises contextual and evidence-based questions about the time, place, and manner variables of a public gathering. This brief discussion is limited to preliminary comments on two pivotal issues: disruption and the duration of a public assembly.
A key question under s.1 is whether a peaceful assembly has engaged in activities, including illegal acts short of violence, that are sufficiently disruptive to warrant the imposition of limits. An assembly in public space may be disruptive for many reasons revolving around time – the time of day and timeline or duration of an assembly; place – the nature and location of the assembly’s communicative space; and manner – the size, scale, and manner in which an assembly conducts its performative expressive activities.
A degree of disruption is embedded in a guarantee of peaceful assembly, and tolerance for disruption up to the point of reasonable limits must infuse the s.1 analysis. For clarity, disruption that is caused by a counter-demonstration or third party outsiders cannot, in principle, be attributed to an assembly. That issue engages the role and duties of law enforcement and is beyond the scope of the blog.
The duration of an assembly, especially in the form of an encampment or occupation, is another key variable under s.1. While parades and forms of picketing are temporal, taking place at a prescribed time or over a discrete period of time, other forms of assembly contemplate a long-standing and even permanent use of space. The university encampments of spring 2024 are a case in point. There, university administrators were advised that encampments would stay until the demands of its occupants were met.
Just as it is reasonable to limit an assembly’s disruptive activities, it is reasonable to place limits on the duration of a gathering that takes place in public space. On this point, the concept of entitlement inflects the s.1 analysis. To the extent a robust conception of peaceful assembly under s.2(c) includes a right of access to public space – which is an exceptional entitlement – limits are nonetheless reasonable. In principle, a concept of assembly that is lengthy or even permanent in duration essentially cannot co-exist with a right of access to public space. To the extent s.2(c) guarantees access to space that does not belong to the assembly, temporal limits on the right to assemble are reasonable.
That said, placing temporal limits on public assemblies raises difficult questions that are governed, in their context, by the requirements of minimal impairment and proportionality, as well as by evidence-based decision making.
A further point on temporality is that although limits on indefinite public assemblies may be justifiable, it is unreasonable to pre-empt a gathering before it has established its communicative presence. In Toronto alone the spring 2024 university encampments provide a study in contrasts. While the University of Toronto encampment was in place on university property for more than 50 days until the university obtained a court order, the encampment at York University was taken down pursuant to a trespass notice and in the presence of police – without a court order – in less than 24 hours after its arrival.
Other issues, like the requirements of minimal impairment and proportionality – and how they apply to injunctions, dispersal orders, exclusion zones, and policing – must be addressed. All these questions call out for a process of discussion and debate that can lead to development of a doctrinal framework for s.2(c)’s guarantee of peaceful assembly.
A framework for s.2(c)
The gap in s.2’s framework for the Charter’s fundamental freedoms has consequences. Until that is understood, bemoaning s.2(c)’s status as an atrophied and unimportant part of s.2 accomplishes little. Steps must now be taken to fill the gap and enforce this guarantee. As recent events show, the absence of constitutional legality for peaceful assembly has had damaging consequences for the legitimacy of protest rights, as well as for the demands of public order. The Freedom Convoy and university encampments reveal a pattern in which the de facto occupation of public space was quickly denounced as illegal and left in place, but only until the legal means to crack down on and displace gatherings became available. Under that matrix, the assembly was a trespasser, per se illegal and without status under s.2(c), tolerated only for the length of time it took the state or property owner to marshall legal resources and terminate the demonstration. That model of response is ad hoc, reactionary, and contrary to s.2(c) and must be displaced by a framework of legality for peaceful assembly under s.2(b).
The challenges that present in developing a framework of principle for s.2(c) must be engaged and discussed. The failure to do so consigns this fundamental freedom to ongoing irrelevance and the persistence of a matrix of illegality and suppression.
