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Judging the Judges

Supreme Court Justices have their own Charter interpretations

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Calgary Sun When it comes to defending individual freedom from government coercion and control, not all judges are created equal. Judging the Judges, a new study by the Canadian Constitution Foundation, analyses the different philosophies of Supreme Court judges in matters of personal and economic liberty.

Based on Supreme Court decisions from 2000 to 2006, Judging the Judges reveals Chief Justice Beverley McLachlin consistently adopts a wide and generous interpretation of freedom of speech, freedom of religion, freedom of association and other individual rights. Her rulings tend toward respect for freedom of con-. tract and the individual’s right to earn, own and enjoy private property. Her vision of equality tends towards equality of opportunity rather than equality of result or condition, and towards the equality of individuals before the law rather than the equality of groups. In contrast, Justice Louis LeBel tends to vote for the state and its power over individuals’ lives by adopting a narrow and restrictive view of fundamental freedoms.

For example, in Chaoulliv. Quebec (2005), Chief Justice McLachlin wrote for the majority in affirming the individual’s right to access essential health services outside of the government’s monopoly and its waiting lists.

Justice LeBel would’ve upheld Quebec’s ban on private health insurance even while admitting waiting lists cause physical and emotional suffering, the risk of irreparable damage to health, and death. LeBel ruled this violation of the individual’s right to life and security of the person was justified.

In Harper v. Canada (2004), Chief Justice McLachlin rejected new amendments to the Canada Elections Act which restrict citizen activism during elections and give political parties a virtual monopoly on political debate.

In contrast, Justice LeBel joined the majority in upholding restrictions on freedom of speech (a constitutional right) in the name of a vague theory about “electoral fairness” (not found anywhere in the Constitution, thereby denying citizens the right to freely communicate their views on issues during federal elections. In Gosselin v. Quebec (2002), ChiefJ ustice McLachlin joined the majority in upholding a Quebec welfare regulation which reduced benefits for able-bodied adults under 30 who refused job training, community work or school. Justice LeBel, in the name of “equality,” would have prevented the government from encouraging people to get off welfare.

Some say judges decide all cases “according to law” and without influence from their own beliefs and prejudices.

It’s certainly true judges sincerely desire to be impartial, to listen to all submissions and arguments with an open mind, and apply precedents in a fair and reasonable manner. But it’s impossible for judges to decide cases apart from their own assumptions about human nature, about the economy, about the appropriate role of government, about religious and other metaphysical questions, and about life itself.

Judging the Judges shows judges have different philosophies when it comes to individual freedom and the role of government. More pro-freedom judges on the Court lead to rulings that rein in the power and scope of government. More anti-freedom judges lead to rulings that expand the sphere of government influence to the detriment of freedom.

As the Charter of Rights and Freedoms marks its 25th anniversary on Aprill7, Canadians deserve to know the track records of their judges in interpreting the Charter guarantees of individual freedom.

The Charter has the potential to protect individual freedom from state intrusion and interference. It’s up to Canada’s judges to uphold constitutional freedoms. As this study shows, some do a better job of this than others.

This article was also published in the National Post.