Legal framework
Constitutional provisions
The freedom of association is recognized by the Constitutional acts of Canada:
Canadian Bill of Rights, Statutes Canada, 1960
“It is … recognized and declared that in Canada there have existed and shall continue to exist … the fundamental freedoms, namely, freedom of assembly and association.” (Section 1 (e) of the Canadian Bill of Rights, Statutes Canada, 1960)
Charter of Human Rights and Freedoms, Statutes Quebec, 1975
“Every person is the possessor of the fundamental freedoms, including freedom of association.” (Section 3 of the Charter of Human Rights and Freedoms, Statutes Quebec, 1975)
The Saskatchewan Human Rights Code, Statutes Saskatchewan, 1979
“Every person and every class of persons shall enjoy the right to … form with others associations of any character under the law.” Section 6 of the Saskatchewan Human Rights Code, Statutes Saskatchewan, 1979)
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
“Everyone has the following fundamental freedoms … (including – a note) freedom of peaceful assembly.” (Section 2 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11)
Human Rights Act, Revised Statutes Yukon, 2002
“Every individual and every group shall, in accordance with the law, enjoy … the right to form with others associations of any character.” (Section 5 of the Human Rights Act, Revised Statutes Yukon, 2002)
Primary legislation
- Canada Corporations Act - Part II (Not-for-Profit Organizations)
Canada adopts a new Act respecting not-for-profit corporations and other corporations without share capital or Bill C-21. The short title of the law is the "Canada Not-for-profit Corporations Act". An exact date for the Bill to be in force is not known but the information campaign has started. Anyone wishing to comment on the proposed regulations can do so by sending a letter or an e-mail to Corporations Canada.
The specific issues of the freedom of association are currently stipulated by the following acts:
- Corrections and Conditional Release Act, Statutes Canada, 1992
“Inmates are entitled to reasonable opportunities… to associate with other inmates within the penitentiary.” (Section 73 of the Corrections and Conditional Release Act, Statutes Canada, 1992)
- Canada Labour Code, 1985
“Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations.” (See the Preamble) Another provision of the Canada Labour Code reiterates the point “Every employee is free to join the trade union of their choice and to participate in its lawful activities.” (Section 8(1) of the Canada Labour Code)
Provincial and federal labour legislation provides the statutory vehicle by which employees can associate to defend their interests and provides legislative protection against unfair labour practices because of the inherent vulnerability of employees to pressure from management, and the private power of employers, when left unchecked, to interfere with the formation and administration of unions.
Secondary legislation
- Canada Corporations Regulations
- Related Provisions
- Corrections and Conditional Release Regulations, SOR/92-620 (Specify the authority of the institutional head or staff member during the activities of any inmate organization or committee)
Canada provides sufficient informational support for not-for-profit organizations. Particularly, there is a special web site created to inform and explain the regulations respecting not-for-profit corporations in Canada.
Possible restrictions and suspensions
The Criminal Code (Criminal Code, Revised Statutes Canada 1985 c. C-46) prohibits participation in activity of terrorist group (Section 83.18 of the Criminal Code, Revised Statutes Canada 1985 c. C-46) and participation in activities of criminal organization (Section 467.11of the Criminal Code, Revised Statutes Canada 1985 c. C-46) and foresaw liability for these activities.
The general restrictions of the rights and freedoms are set by the Canadian Charter of Rights and Freedoms. It states that they are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982) The Supreme Court of Canada clarifies this provision that a limit must serve a pressing and substantial objective and employ proportionate means to attain it. In particular, the means must be rationally connected with the objective, impair the Charter right or freedom as little as possible, and have an impact that is proportional to the objective in question.
Respecting the freedom of association of inmates there are following provisions: “Inmates are entitled to reasonable opportunities to assemble peacefully and associate with other inmates within the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.” (Section 73 of the Corrections and Conditional Release Act, Statutes Canada, 1992) The institutional head or staff member who believes on reasonable grounds that the activities of any inmate organization or committee would jeopardize the security of the penitentiary or the safety of any person may prohibit these activities. (Section 98(1) (b) of the Corrections and Conditional Release Regulations, SOR/92-620)
Analysis provided by Dmitry Kabak, OSCE/ODIHR consultant.
Posted: April 2007
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