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Judicial Freedom Index The 2019 Judicial Freedom Index An analysis of Supreme Court of Canada rulings on Charter section 2 fundamental freedoms, 1982-2018 John Carpay, James Kitchen, David Hersey May 2019 JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS 253-7620 ELBOW DRIVE SW, CALGARY, AB T2V 1K2 www.jccf.ca | [email protected] | 403-475-3622 Table of Contents INTRODUCTION………………………………………………….………………………..1 EXECUTIVE SUMMARY………………………………………….………………………2 ATTITUDINAL DECISION-MAKING………………………………….………………. 3 METHODOLOGY……………………………………………………………….………… 5 ANALYSIS OF THE 2019 SUPREME COURT JUSTICES……………….…………… 5 OVERVIEW……………………………………………………………………..…5 INDIVIDUAL ANALYSIS………………………………………………..…….....6 CURRENT NINE JUDGES - 2019: CHARTS……………………………….……………9 SECTION 2(A) FREEDOM OF CONSCIENCE AND RELIGION………….…...9 SECTION 2(B) FREEDOM OF EXPRESSION……...…………...…..……..…...10 TOTAL SECTION 2 CASES (Excluding s. 2(d) union cases)………...……........11 SECTION 2(D) FREEDOM OF ASSOCIATION – UNION CASES……….…...12 OVERVIEW OF 2018…………………...……………………………….………………..13 SECTION 2(A) FREEDOM OF CONSCIENCE AND RELIGION……….…….13 SECTION 2(B) FREEDOM OF EXPRESSION…………………..………….…..14 SECTION 2(D) FREEDOM OF ASSOCIATION – UNION CASES…………....15 RECENT TREND: 2014-2018…………………………………………………..………...15 OVERVIEW OF TRENDS IN DECISIONS INVOLVING SECTION 2 FREEDOMS………….…………………………………………………………...15 DEVELOPMENTS IN THE JURISPRUDENCE…………………….…………..16 5-YEAR REPORT: 2014-2018 CHARTS…………………………………………..…….17 SECTION 2(A) FREEDOM OF CONSCIENCE AND RELIGION……….…….17 SECTION 2(B) FREEDOM OF EXPRESSION…………………..………….…..18 TOTAL SECTION 2 CASES (Excluding s. 2(d) union cases)…….…………......19 SECTION 2(D) FREEDOM OF ASSOCIATION – UNION CASES……….…...20 FULL ANALYSIS OF 1982-2018………………………………………………………...21 SECTION 2(A) FREEDOM OF CONSCIENCE AND RELIGION………….….21 SECTION 2(B) FREEDOM OF EXPRESSION…………………..………….…..21 SECTION 2(D) FREEDOM OF ASSOCIATION ……………………….…........22 SECTION 2(D) FREEDOM OF ASSOCIATION – UNION CASES…….……...22 TOTAL SECTION 2 CASES (excluding s. 2(d) union cases)………………..…..22 GRAPHICAL SUMMARY OF JUDGES’ RULINGS…………………………………..23 1982-2018 JUDGES’ RULINGS ON FREEDOM OF RELIGION AND CONSCIENCE………………………………………….………………...……….23 1982-2018 JUDGES’ RULINGS ON FREEDOM OF EXPRESSION……….…..24 1982-2018 JUDGES’ RULINGS ON FREEDOM OF ASSOCIATION (NON- UNION)…………………………………………………………………………...25 1982-2018 JUDGES’ RULINGS ON ALL SECTION 2 DECISIONS (Excluding Union Cases)………………………………………………………………………26 1982-2018 JUDGES’ RULINGS ON FREEDOM OF ASSOCIATION (UNION)…………………………………..…………………………….…….…..27 FULL REPORT: CASE SUMMARIES…………………………………………….……28 SECTION 2(A): FREEDOM OF CONSCIENCE AND RELIGION…………….28 SECTION 2(B): FREEDOM OF EXPRESSION…………………..……………..42 SECTION 2(D): FREEDOM OF ASSOCIATION …………………………........72 SECTION 2(D): FREEDOM OF ASSOCIATION – UNION V. GOVERNMENT…………………………………………..………………….…...74 ABOUT THE JUSTICE CENTRE……………………………………………...….…….81 ABOUT THE AUTHORS……………………………………………………....…………81 APPENDIX “A”: CASES EXCLUDED FROM THIS STUDY……………..…….……82 INTRODUCTION The Canadian Charter of Rights and Freedoms (“Charter”) is a document of paramount importance in Canada. The Charter delineates the rights and freedoms of individuals, but also authorizes all levels of Canadian government to restrict those same rights and freedoms. Section 2 of the Charter states: Everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association. These freedoms are identified as “fundamental” because they form the very foundation of our free society. However, section 1 of the Charter states: 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. There are several ways a fundamental freedom can be infringed by the government. One is through the creation and implementation of a law, regulation or policy. Another is through a decision made by government, or by a governmental body that exercises delegated authority. The Supreme Court of Canada (hereafter “the Court” or “SCC”) is the ultimate authority on how the fundamental freedoms protected in section 2 of the Charter are interpreted. When, how and why the government restricts Canadians’ fundamental freedoms has a profound effect on how free Canada’s society remains. The Judicial Freedom Index analyzes how frequently, and in what ways, the Court has allowed the federal and provincial governments and governmental authorities to limit the Charter section 2 freedoms of Canadians. Prior to 2012, all laws and all government decisions that impacted Charter rights were analyzed using a single legal test known as the “Oakes test.” This rigorous, multi-step test required government to meet several requirements before a law or government decision could be considered justified under section 1 of the Charter as a reasonable limitation on a fundamental freedom in a free and democratic society. Using the Oakes test, Canadian courts will uphold laws that infringe freedoms if the court is sufficiently convinced by the government’s claim that there is a pressing and substantial social concern underpinning the law, that the violation of freedom caused by the means used to achieve the legislative goal is rationally connected to that goal and is narrowly tailored to achieve the goal and that the severity of the violation of the freedom is proportionate to the claimed benefit. Currently, however, the Oakes test is used only when laws and regulations are evaluated for their constitutionality. For government decisions, as opposed to laws and regulations, the Supreme Court of Canada has adopted a slightly lower standard that makes it easier to justify violating citizens’ freedoms. In Doré v. Barreau du Québec, 2012 SCC 12, the Court ruled that a more relaxed analysis than that of the Oakes test should be used in the context of decisions made by administrative decision-makers such as human rights tribunals and government regulatory bodies such as law societies. Instead of justifying limitations of fundamental Charter freedoms by conforming to the multi-step and specific Oakes test, government decision-makers now need only demonstrate that their Charter-freedom- infringing decision is within a range of “reasonable” outcomes. A government decision will be considered “reasonable” if it “proportionately balances” the Charter “values” engaged by the decision with the government’s legislative objectives. The replacement of the Oakes test by the Doré test, in regard to many governmental decisions, represents a significant set-back for the protection of Canadians’ fundamental Charter freedoms. EXECUTIVE SUMMARY When it comes to defending the fundamental freedoms of Canadians, some judges are more likely to approve of government violations of Charter freedoms than others. The Judicial Freedom Index reviews 63 Supreme Court of Canada judgments, rendered from 1982 to 2018, in respect of the Charter section 2 freedoms of conscience, religion, thought, belief, opinion, expression and association. The Court sided with government in 38 of these cases, roughly three fifths of the time, by holding that no Charter freedom had been limited, or by justifying the limitation. The challenger, asserting that one or more Charter freedoms had been infringed by a government law, policy or decision, was vindicated in 25 of the 63 cases. In some judgments, the Court’s rulings on Charter freedoms are unanimous, and therefore do not reveal any differences in the attitudes of judges, or the paradigms they use. When all judges rule unanimously to accept or reject the claims of a Charter litigant, it is possible to assume that the judges are simply relying on legal texts and precedents, regardless of their personal beliefs, values and assumptions. But the Court’s split decisions reveal a tendency on the part of some judges to rule in favour of the individuals whose Charter freedoms have been infringed, while other judges clearly tend to justify government encroachment on citizens’ freedoms. For example, in 23 decisions where the Court was divided between a majority and a dissent, Chief Justice Beverley McLachlin ruled for the challenger 14 times, and for the government 10 times. This is quite different from the Court as a whole, which in split decisions ruled for the challenger less than one third of the time. Likewise, former Justices John Major and Louise Arbour displayed an even stronger tendency to rule against the government, deciding for the challenger in two thirds of the cases where the court was split. Former Justice Frank Iacobucci ruled for the challenger in seven of ten split decisions. The voting records of these four judges show a significant departure from the Court as a whole, and from judges who ruled in favour of the government in split decisions. In contrast to Justices McLachlin, Major, Arbour and Iacobucci, other judges have a track record of justifying the government’s limitations of fundamental Charter freedoms. In split rulings on whether to restrict freedom of expression and freedom of religion, Justices Marie Deschamps, Louise Charron and Marshall Rothstein sided with the government 100% of the time. In similar 2 fashion, Justice Charles Gonthier voted to uphold freedom-diminishing laws and policies 90% of the time, former Chief Justice Brian Dickson 83% of the time and
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