The Limits of Liberty: Absolute Rights and Constitutional Responsibility

Introduction

Constitutional rights protect individual liberty, constrain government power, and safeguard the freedom to live according to one's beliefs and convictions. Yet these rights do not operate in isolation. They exist within a constitutional order where the exercise of one person's freedom may affect another’s ability to exercise theirs.

At a recent conference, there was a panel discussion on freedom of conscience, religion, and the rule of law[1], which explored the distinction between personal preference and moral conviction. One idea that was significant is that freedom is not simply the liberty to do what one wants, but also the liberty to act according to what one believes one ought to do.[2] This understanding recognizes that individual liberty protects more than personal choice. It safeguards the ability to live according to one's convictions, even where those convictions are unpopular.

At the heart of this discussion is whether the purpose of constitutional rights is to maximize individual freedom or to protect freedom within a society of individuals who possess competing rights and obligations. Although section 1 of the Charter of Rights and Freedoms (Charter) permits demonstrably justified limits on protected rights, this does not necessarily establish that every constitutional right is capable of limitation.

Freedom of Conscience and Competing Rights

Section 2(a) guarantees freedom of conscience and religion. In R v Big M Drug Mart Ltd, and Syndicat Northcrest v Amselem, the Supreme Court of Canada affirmed the importance of protecting individuals against religious coercion and safeguarding sincerely held religious beliefs and practices. However, protecting a sincerely held belief does not necessarily mean that every action motivated by that belief receives unlimited constitutional protection.

The Supreme Court of Canada confronted precisely this problem in 2012 in R v NS (NS) where a Muslim woman wished to testify while wearing a niqab during a criminal proceeding involving allegations of sexual assault. Her religious freedom under section 2(a) intersected with the accused persons' right to a fair trial under sections 7 and 11(d), including their interest in effectively challenging the credibility of a witness.

The plurality in NS rejected an absolute rule either permitting or prohibiting the wearing of a niqab while testifying. Instead, it adopted a contextual approach considering the sincerity of the religious belief, the potential impact on trial fairness, and whether the competing interests could be accommodated. Where accommodation was impossible, the consequences for both rights had to be assessed.

The decision illustrates that recognizing one constitutional right does not automatically determine how it may be exercised when another person's constitutional protections are engaged. Competing rights require careful reconciliation rather than an automatic preference for one over another. However, the need to reconcile rights does not necessarily establish that every constitutional protection is capable of justified limitation.

The Historical Foundations of Absolute Rights

Although section 1 permits reasonable limits on Charter rights, it does not necessarily follow that every constitutional right is capable of justified limitation. Freedom of thought and the prohibition against cruel and unusual treatment or punishment, for example, have been identified as possible candidates for absolute protection, although their status remains unsettled.[3] Certain protections may be so fundamental no governmental objective could justify their infringement.

The historical foundations of Canadian constitutionalism provide further support for examining the possibility of absolute rights. Long before the enactment of the Charter, constitutional developments such as Magna Carta, the Petition of Right, and the settlement following the Glorious Revolution established important restrictions on arbitrary governmental authority. Certain constitutional protections may therefore be understood not merely as interests to be balanced against governmental objectives, but as boundaries that government cannot lawfully cross.[4]

Canada’s constitutional order predates the Charter. Section 26 recognizes that Charter guarantees should not be construed as denying the existence of other rights or freedoms in Canada. Although this does not establish that historically rooted protections are necessarily absolute, it leaves room to recognize rights beyond those expressly guaranteed by the Charter.

Absolute Rights and Constitutional Responsibility

The distinction between the existence of a right and the scope of its protected exercise is essential to reconciling absolute rights with competing freedoms. A constitutional right may prohibit certain forms of state interference without protecting every action undertaken in reliance on that right.

Freedom of conscience illustrates this distinction. The state may be constitutionally constrained in its ability to compel individuals to adopt particular beliefs or convictions; however, this does not necessarily establish an unrestricted entitlement to engage in every form of conduct motivated by them. The reconciliation of rights therefore requires more than a general declaration that individual freedoms must yield to the interests of others. It requires a principled determination of the scope of the rights engaged and the constitutional justification, if any, for restricting their exercise.

Equally important is the distinction between moral responsibility and legal obligation. Individuals have responsibilities to respect the dignity, autonomy, and freedoms of others. However, those responsibilities do not automatically confer constitutional authority on the state to restrict fundamental rights. The meaningful exercise of individual liberty depends, in part, on a willingness to recognize that others are equally entitled to their own beliefs, convictions, and freedoms.

The responsibility to respect the freedoms of others does not in itself justify governmental interference with constitutional rights. Recognizing competing rights should therefore encourage their meaningful reconciliation, not create a presumption that individual freedoms must yield whenever competing interests arise.

Conclusion

The purpose of constitutional rights cannot be reduced to maximizing individual freedom without regard to others, nor can it be understood as permitting liberty to be restricted whenever competing interests arise. Although the Charter provides a framework for reasonable limits, the historical foundations of constitutionalism and the possibility of absolute rights challenge the assumption that every constitutional protection is necessarily subject to balancing.

Constitutional rights protect individual freedom within a shared constitutional order, but they also establish limits on the government's authority to determine how that freedom may be exercised.

A free and democratic society requires individuals to recognize the freedoms of others. It also requires the government to recognize the limits of its own power. The strength of Canadian constitutionalism rests in preserving both commitments without allowing either to become a justification for abandoning the other.