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Judging the Judges

The Supreme Court of Canada’s Record on Individual and Economic Freedom and Equality

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In this paper, by “individual freedom” we mean freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press; freedom of peaceful assembly; and association. By “economic freedom” we mean the basic human right to earn, own and enjoy private property, and such protections as due process (for example, that the government does not take an individual’s property without a fair process, including just and timely compensation), and freedom of contract. With respect to “equality before the law” we mean equality of opportunity rather than equality of result or condition, and the equality of individuals before the law rather than the equality of groups before the law. It is our belief that while a properly functioning society requires government to maintain order, enforce contracts, protect against outside military threats, and address various market failures, society functions best when citizens are free from excessive and arbitrary government involvement in their lives.

Prior analyses of judicial decisions have sometimes resulted in accusations of “judge-bashing.” But pointing out the fact that not all forms of judicial decision- making are philosophically identical is not a criticism of the Court. Rather, it simply explains the reality of judicial decisions. Charter rights are not absolute because judges can limit individual rights and freedoms under section 1 of the Charter to protect broader community interests. However, judicial decisions necessarily have the effect of either reining in the power and scope of government, thereby preserving individual and economic freedom, or expanding the sphere of government influence and activity to the detriment of these freedoms. This report assesses the Supreme Court’s recent record in fulfilling its constitutional role of safeguarding against violations of individual and economic freedom and equality before the law.

This exercise is important because individual and economic freedoms are crucial to the social and economic well-being of Canadians. Such freedoms go hand in hand with desirable social and economic outcomes such as greater economic growth and rising incomes.3 In fact, individual freedom and economic freedom often advance each other. Economic freedom begets individual freedom, and vice versa, both leading to increased economic prosperity.