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The Judicial Freedom Index

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The Judicial Freedom Index The Judicial Freedom Index An analysis of Supreme Court of Canada rulings on Charter section 2 fundamental freedoms, 1982-2017 John Carpay, David Di Sante, James Kitchen December 2017 JUSTICE CENTRE FOR CONSTITUTIONAL FREEDOMS 253-7620 ELBOW DRIVE SW, CALGARY, AB T2V 1K2 www.jccf.ca | [email protected] | 403-475-3622 Contents Introduction ................................................................................................................................................... 3 Executive Summary ...................................................................................................................................... 4 Attitudinal decision-making .......................................................................................................................... 5 Methodology ................................................................................................................................................. 6 Analysis ........................................................................................................................................................ 7 Section 2(a) Freedom of Conscience and Religion ............................................................................... 7 Section 2(b) Freedom of Expression ...................................................................................................... 8 Section 2(d) Freedom of Association ..................................................................................................... 8 Section 2(d): Freedom of Association Union Cases .............................................................................. 9 Section 2 Cases (1982-2017) ................................................................................................................... 9 Charts .......................................................................................................................................................... 10 Section 2(a) Freedom of Conscience and Religion ............................................................................. 10 Section 2(b) Freedom of Expression .................................................................................................... 11 Section 2(d) Freedom of Association ................................................................................................... 12 Section 2(d): Freedom of Association Union Cases ............................................................................ 13 All section 2 fundamental freedoms cases (1982-2017) ...................................................................... 14 Summaries of Cases .................................................................................................................................... 15 Section 2(a) Freedom of conscience and religion ............................................................................... 15 Section 2(b) Freedom of Expression .................................................................................................... 27 Section 2(d): Freedom of Association .................................................................................................. 57 Section 2(d): Freedom of Association—Union v. Government ......................................................... 60 Appendix “A”: Cases excluded from this study ......................................................................................... 66 Section 2(a) Freedom of Religion ......................................................................................................... 66 Section 2(b) Freedom of Expression .................................................................................................... 70 Section 2(d): Freedom of Association .................................................................................................. 84 About the Justice Centre ............................................................................................................................. 89 About the Authors ....................................................................................................................................... 89 2 Introduction The Canadian Charter of Rights and Freedoms (“Charter”) is a document of fundamental 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.” It is significant that these freedoms are identified as “fundamental”, as 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 contained in section 2 of the Charter should be protected and interpreted. When, how and why the government restricts Canadians’ fundamental freedoms has a profound effect on Canada’s free and democratic society. This paper analyzes how frequently, and in what ways, the Court has allowed the federal and provincial governments to limit the Charter section 2 fundamental freedoms of Canadians. The vast majority of Charter decisions are decided under section 1, in a context where the Court has determined that government has, in fact, violated one or more of the citizen’s fundamental freedoms. The section 1 question is whether the violation is a reasonable limit “demonstrably justified in a free and democratic society.” Using the Oakes Test, Canadian courts will uphold laws and other forms of government action that violate fundamental freedoms, if judges are sufficiently convinced by the government’s claim that there is a pressing and substantial social concern underpinning the law, and that the violation of freedom is rational, narrowly tailored to achieve the legislative goal, and proportionate to the claimed benefit. 3 Executive Summary When it comes to defending the fundamental freedoms of Canadians, some judges are more likely to approve of government intervention than others. The Judicial Freedom Index reviews 56 Supreme Court of Canada judgments, rendered from 1982 to 2017, on the Charter freedoms of conscience, religion, expression and association. The Court sided with government in 33 of these cases, roughly three fifths of the time, by holding that no Charter freedom had been violated, or that the violation was justified. The challenger, asserting that one or more Charter freedoms had been violated by a government law, policy or decision, was vindicated in 23 of the 56 cases. In the majority of cases, the Court’s rulings on Charter freedoms were unanimous, and therefore did not reveal any differences in the attitudes of judges. When all judges rule unanimously to accept (or reject) the appeal of a Charter litigant, it is easy 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 strong tendency on the part of particular judges to rule in favour of the individuals whose Charter freedoms have been violated, while other judges clearly tend to justify government encroachment on citizens’ rights. For example, Chief Justice Beverley McLachlin ruled for the challenger 13 times, and for the government eight times, in 21 decisions where the Court was divided between a majority and a dissent. 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, which in split decisions ruled for the challenger less than one third of the time. Other judges have a track record of justifying the government’s violations of fundamental Charter freedoms as reasonable measures that are necessary in a free and democratic society. Where the Court was split 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 fashion, Justice Charles Gonthier voted to uphold freedom-violating laws and policies 90% of the time, former Chief Justice Brian Dickson 83% of the time, and Justice Claire L’Heureux-Dube 78% of the time. For every case which the Supreme Court chooses to hear, all of the judges are presented with the same facts and the same arguments. Judges have the benefit of the same precedents, on both sides of the legal issue at stake. Yet they enjoy the freedom to rely on precedents that reflect their own beliefs, values, and philosophical
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