Over the last few weeks I have been writing about why our responsibilities are as important as our rights. I have suggested that there has been little attention paid to our responsibilities as citizens and lots of talk about our rights. But, even "rights talk" sometimes gets confused because we do not have a clear sense of how our individual rights and freedoms are balanced with the rights and freedoms of others.
From a political scientist's point of view, one the most interesting documents that gives us pause to consider this critical balance is the Canadian Charter of Rights and Freedoms. I would urge anyone who has never looked at the Charter to take some time to consider the document. It is easy to find and fairly easy to read. Its format tells us a lot about how our rights and freedoms are adjudicated. Our fundamental freedoms are laid out in section 2. These freedoms include the freedom of conscious, religion, thought, assembly and association.
Notice that the document says "everyone has the following fundamental freedoms" and that freedoms are separate from Democratic Rights. This is because our freedoms are those things that we are free do and we generally understand that the state should not interfere with them. Our legal and moral entitlements are called "rights" and the state must make these available to us. In the Charter our rights are listed in sections 3 through 23 and include our right to vote, our mobility, legal and equality rights. Sections 23 through 33 describe how the Charter will be applied, although section 33 constitutes a special circumstance that I will explain next week. It will take a whole column on its own!
I suspect that you might have noticed that I have not yet mentioned section 1 of the Charter. It is a critical section and I will cite it here in its entirety, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
It is this section that provides the state with a way to balance the rights and freedoms of individuals and groups with the rights and freedoms of the larger society. Now the larger society does not actually have rights because a society is not an individual but you can see in the section one clause that there is mention of a free and democratic society. The clause is suggesting that we have certain expectations about how to live together in a free and democratic society; we are not free to do anything we want because we understand that a democracy must balance our self-interest with the safety and security of others.
So, section 1 tells us that while we have the rights and freedoms that are listed in the Charter it is possible for the state to limit those rights and freedoms. The conditions of those limits are that they must be spelled out in law and the limits must be reasonable. We would know if the limits are reasonable if they only violate the right or freedom to the extent that they prevent an unreasonable violation of someone else's rights and freedoms. For example, our freedom of speech is limited by laws that restrict us from using speech to incite hatred and violence against other people. The argument here is that I cannot use my freedom of speech to create an environment that puts other people at risk of violence.
Of course, there is always a slippery slope when we try to adjudicate rights and freedoms against security and order. The courts have an enormous responsibility when they look at how a law might impinge on freedom. The Supreme Court has developed a test to help them apply Section 1 because, and I am sure you have noticed this already, section 1 is does not spell out what exactly constitutes "reasonable" or "free" or "democratic." Since 1982 there have been hundreds of Charter cases in which the Courts have been asked to clarify and make sense of this fine balance between what we can say and do and what we cannot say or do in our free and democratic society.
