Background Of The Paper
The Canadian charter of rights and freedoms under Section 2 (b) confers the freedom of expression which states that all people shall have the fundamental freedom of part believe opinion and expression which would include the freedom of press and other media of communication. Similar provisions could be found in adult federal and international laws which are binding on Canada like Section 1 (d) and f of the Canadian Bill of Rights, Article 5 (d) (viii) of the convention on the elimination of all forms of racial discrimination, article 13 of the convention on the rights of the child, article 19 of the international covenant on civil and political rights and article 21 of the convention on the rights of persons with disabilities. All of these rights although expressly mentions about the right to expression, nevertheless it offers a wide scope of interpretation which includes the aspects of clothing and different kinds of accessories as a part of the term expression. In the case of R v Keegstra, the court had expressly mentioned that an activity that involves expression or being expressive conveys the meaning of talking, gestures, singing, making clothing choices and even signing on one’s property.
However, it is to be noted that the provisions under section 2 b of the charter cannot be protected under certain circumstances and thus may be denied Certain situation or location as seen in Greater Vancouver Transportation Authority v Canadian federation of students British Columbia component. It was held in this case that not all kinds of expressions could be protected under law, especially in case of certain public places where certain restrictions could be imposed on the freedom of expression, where this right could be conflicted due to objections pleas by individuals or institutions, raising code of ethics in question. Therefore, to determine if one’s right to expression is free in a given place, the following two questions needs to be considered:
1. Whether the historical function of the place Is compatible with the kind of freedom of expression one is looking forward to?
2. Is there any aspect of that particular location which suggest that allowing an unlimited interpretation of the phrase ‘freedom of expression’ for it may undermine the inherent meaning and value of freedom of expression has held under the charter?
Through this paper the researchers would strive to evaluate the provision of the Charter of freedom of expression and whether the right to preferable clothing and different accessories is observed, including it as one of the substantial parts of the right to freedom of expression. In this course it shall be argued that, the right to clothing and accessories may vary in terms of situation and places, thereby being an important part of the freedom of expression.
- The importance of dress code at educational institution as well as workplace is debateable Since The participants to this debate has not been able to reach any conclusive end Stating that Dress codes have been helpful in achieving any kind of institutional goals or has come handy in developing interpersonal skills, at academics or at workplace.
- However there has been recent controversies around dress code or female employees at Bier Markt, a chain of restaurant located across Ontario, reminding the importance of workplace policies that holds the right to control how an organisation’s employees should dress, thereby raising red flags in terms of human rights perspective.
- In this regard critics have commented that there has been a discrimination in regard to the right of expression of individuals working at a workplace, irrespective of the fact that they are working under the whims and fancies of an employer.
On the other hand, it has been argued by the supporters of the concept of dress code that employees particularly serving in the service industry must follow what is imperative and beneficial for providing service to the target customers, thus requiring to adhere to a particular dress code.
- On a similar stance, the Ontario divisional court in 1987 had considered this question off determining whether a dress code policy that required a female employee to wear Haram outfits was an infringement of the human rights code, for it was compelling the female employees to wear something against their wish only for the sake of their employment, which was a necessity for them. The court further answered that whether it was fair and reasonable for the employers to force its employees in wearing something objectionable to their views, under the facade of the need of the employment. Was it right on the part of the employers to exercise an arbitrary power to make the employees comply to something which was against their right of expression?
- The Canadian charter of rights and freedoms under Section 2 (b) lay down the freedom of expression which states that everyone shall have the fundamental freedom to share the thoughts and expression,
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Similar provisions could be found in adult federal and international laws which are binding on Canada like Section 1 (d) and (f) of the Canadian Bill of Rights, Article 5 (d) (viii) of the Convention on The Elimination of All Forms of Racial Discrimination, article 13 of the convention on the rights of the child, article 19 of the international covenant on civil and political rights and article 21 of the convention on the rights of persons with disabilities.
- In order to expand the horizon of Section 2 (b) of the Canadian Charter of Rights and Freedom, the court had expressly mentioned to include speaking, dancing, artwork, writing clothing, choices and tattoos as a form of expression, unless they propagate violence or threat of violence in the case of The Attorney General of Quebec v Irwin toy limited.
To determine if one’s right to expression is free in a given place, the following two questions needs to be answered:
1. Whether the historical function of the place Is compatible with the kind of freedom of expression one is looking forward to?
2. Is there any aspect of that particular location which suggest that allowing an unlimited interpretation of the phrase freedom of expression for it may undermine the inherent meaning and value of freedom of expression has held under the charter?
- To determine if one’s right to expression has been violated, the following three questions needs to be answered:
1. Did the person’s words convey a message or a meaning?
2. Does the location remove such message from the protection give under section 2 b of the Charter?
3. Was the message so conveyed was restricted upon a government action?
- If the answer to all of these questions is affirmative, then it is likely that the person’s right to expression has been violated, irrespective of the fact whether it was in writing or in the form of a dress code that intended to express the person’s thoughts or personality.
- In the quest to ensure that one is entitled to the right to expression as held under Section 2 (b) of the Charter, it is extremely important that they are aware of the fact that their right to expression holds certain reasonable limits, which they can exercise it. Pertaining to the right to expression in the form of dressing up as per one’s own preference, the following restrictions all reasonable limits must be adhered to:
- It is to be remembered that dressing up in an obscene way in designated public places is not Desirable and thus shall be Treated as a reasonable limit in regard to right to expression which includes dress code.
- The factor of obscenity is a serious issue which is further prohibited under the Criminal Code especially when it concerns sexually explicit materials or pornography. In such cases a person cannot claim to have exercised his right to expression, for this type of expression shall not be protected by the provision of the charter, for the factor of obscenity violates the law held under Section 2 (b) of the charter as held under the case of R v Butler.
- It has been seen that in such cases the particular expression has been asked to pass through the community standards test, thereby proving that whether such expression lays down a degree of harm to the society due to the exposure to such obscene expression.
- Although it is not enforceable by any criminal or civil law of the land however it is undesirable that the right to expression pertaining to dress code would be exercised by hurting religious sentiments of religious groups at religious places.
- People breaching this reasonable limit could be made answerable for their misconduct, however there are no expressed legal provisions that hold this as a criminal misconduct or a wrongful conduct under the tort law.
- A Human Right as well as a fundamental right, the right to expression ensures that an employer shall be held liable if he imposes policies that violates his employee’s right to freedom of expression, even if it involves the employee’s preference to dress in a particular way, as a form of expression. The underlying objective of the policy shall be evaluated in order to determine whether it interferes with the employee’s right to freedom of expression.
- However, it is highly debatable when such extreme policies interfere with the employee’s right to expression in a private sector. Nevertheless, in a non-unionised workplace, the employer’s ability to impose a workplace policy in terms of regulating the appearance of the employees are protected by certain restrictions. The employer is free to impose certain dress code policies in his organisation as long as it does not discriminate against the employee’s basic right two exercises freedom of expression through his right to choose his outfit or wearing a certain accessory to work, which is protected by human rights law and legislations of the country.
- While in a unionised workplace, the employer shall have the liberty to impose certain workplace dress code for his employees to a certain extent that it is reasonable and does not hurt the dignity and sentiment of the employees.
- The notion of exercising the right of the employer to impose dress code policies in a unionised or non-unionised workplace has been widely debated, leading the court to lay down a number of such cases as unreasonable.
- For example, the British Columbia Human Rights Tribunal had found it discriminating on the employer of the Bar as it had imposed a policy for female employees to wear sexually explicit clothes, thus not only breaching the Charter but indicating gender-based discrimination.
- the Ottawa hospital’s policy of prohibiting recruitment of employees who had large tattoos and body piercings was pointed out as unreasonable by the court in 2013. It was highlighted as a breach of human rights where the arbitrator drew a parallel argument in regard to the organisation’s policy on stereotyping around piercings and body tattoos rather than showing genuine concern in terms of the difference of quality of work of the employees exhibiting body piercings and tattoos.
- In another similar case in 2015, the arbitrator had found the organisational policy of prohibiting employees from wearing jeans and shorts to be unreasonable. The employer’s argument about wearing jeans or shorts having a negative impact on the organisation’s reputation was held as baseless. In that very case the arbitrator had pointed out that for that particular setup it was reasonable for the employer to lay down such a policy where he would take feedback from the employees in terms of determining what was more appropriate and professional dress for them to carry out in their workspace.
Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 28
Le Syndicat de l’Enseignement de Lanaudière et La Commission scolaire des Samares (October 9, 2012), Grievances Nos. 2010 0003591-5110, AZ-50914116 (T.A.), Maureen Flynn, Arbitrator.
Mottu v MacLeod and Barfly Nightclub [BCHRT 76, 2004]
R v Butler 1992 1 SCR 452
R v Keegstra, [1990] 2 SCR 697)
The Attorney General of Quebec v Irwin Toy Ltd., [1989] 1 SCR 927
Books and Journal article
Bahia Tahzib-Lie, “Controversies over Religious Symbols in the Workplace: Workforce Diversity versus Androgynous, Mechanical Clones” [2007] 25:4 Neth Q Hum Rts 563
Harold M. Goldner, “You’re Going to Wear That – Appearance in the Workplace” (2010) 27:1 GPSolo 21
Lincoln, Laura. “Public nudity and the right to freedom of expression: balancing competing interests.” Victoria University of Wellington Legal Research Paper, Student/Alumni Paper 26 (2016).
Linda McKay-Panos, “Gender Discrimination in the Workplace: Dress Codes” (2004) 29:3 LawNow 69
Melinda Beard, “The Case for a Dress Code” (2000) 15:5 Com L Bull 35.
Natasha Caldwell, “Workplace Appearance Standards: Undressing the Law” (2009) 15:1 Canterbury L Rev 1.
Reddy-Best, Kelly L. “LGBTQ women, appearance negotiations, and workplace dress codes.” Journal of Homosexuality 65.5 (2018): 615-639.
Squelch, Joan. “Religious symbols and clothing in the workplace: balancing the respective rights of employees and employers.” Murdoch UL Rev. 20 (2013): 38.
“When dress codes violate employees’ rights”, (2015), online: RavenLaw <https://ravenlaw.com/news/what-not-to-wear-when-dress-codes-violate-employees-rights/>.
Government of Canada. “Charterpedia – Section 2(b) – Freedom of expression”, (2022), online: Justicegcca <https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html>.
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