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When it comes to defending the fundamental Charter freedoms of Canadians from government encroachment, Supreme Court Justices can be divided into three distinct groups.
In the Court’s split decisions, which reveal attitudinal differences between individual judges, Justices Gascon, Karakatsanis and Rowe consistently rule against those who challenge laws and government policies for violating the Charter freedoms of conscience, religion, expression and association. Justices Brown and Côté consistently rule for Charter claimants. Justices Abella, Moldaver and Wagner form a third group, ruling for freedom of expression claimants but against those asserting their freedom of conscience and religion. Justice Martin has not yet rendered enough decisions to ascertain which of the three groups (if any) she might belong to.
U.S. Supreme Court Justices are routinely described as liberal or conservative, the latter often equated with the “originalist” approach advocated by the late Justice Antonin Scalia. While these descriptions are arguably crude, they are rooted in the reality that all nine judges are presented with the same facts, the same precedents and the same legal arguments, yet arrive at significantly different conclusions.
Professors Jeffrey Segal and Harold Spaeth have made a strong case for “attitudinal decision-making” as the greatest model for predicting the judicial behaviour of U.S. Supreme Court Justices. This model recognizes that judges’ beliefs, values, and political ideologies play a crucial role in their decision-making.
The political inclinations and policy goals of a given judge can be used to predict the outcome of a judicial decision, or at least contribute to explaining the decision after the fact. When judges have the benefit of many precedents, which together support both sides of the legal issue before them, they are free to select precedents that reflect their own point of view.
Canada’s highest court is no different. The Court consists of nine lawyers who each possess their own political beliefs, and their own personal assumptions about the meaning and purpose of life and about which moral principles should govern our behaviour. As noted by legal commentators Cynthia Ostberg and Matthew Wetstein: “The Charter has clearly placed the Court centre-stage in some of the most dramatic policy debates pertaining to issues such as gay rights, Aboriginal territorial claims, abortion, health care, and minority language rights.”
The Judicial Freedom Index reviews 63 Supreme Court of Canada judgments, rendered from 1982 to 2018, on the Charter freedoms of conscience, religion, thought, belief, opinion, expression and association.
Since the enactment of the Charter in 1982, the Court has sided with government 60% of the time, by holding that no Charter freedom had been violated or that the limitation was justified. The challenger, asserting that one or more Charter section 2 freedoms had been infringed by a government law, policy or decision, was vindicated in 25 of the 63 cases.
The central purpose of the Charter is to protect unpopular minorities from the tyranny of the majority, even when the majority has the best of intentions. When interpreted by judges who cherish the free society, the Charter protects people who express opinions that the majority sees as wrong, false or extreme; protects people who practice religious beliefs that are out of favour with secular elites; and protects the right of voluntary associations to establish and maintain their own rules and practices.
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. Apart from the personal beliefs, values, and philosophical assumptions of individual judges, what accounts for these different tendencies to rule for the Charter claimant, or for the government?
When it comes to defending the fundamental freedoms of Canadians, the data shows that some judges are more likely to approve of government violations of Charter freedoms than others. Canadians wishing to preserve the core freedoms of our society would be well served by understanding the track records of Supreme Court judges on fundamental Charter freedoms.
Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (JCCF.ca) and co-author of the Judicial Freedom Index.