The years 2022 and 2023 have seen numerous court rulings in which some Canadian judges upheld government violations of our charter freedoms of association, expression, religion, conscience, mobility, peaceful assembly, and bodily autonomy.
These outcomes are disturbing, but worse yet was the failure of some judges to require governments to show “demonstrably” (with persuasive evidence) that their violations of charter rights or freedoms were doing more good than harm. The 1986 Supreme Court of Canada ruling in R. v. Oakes requires judges to place the onus on government to show that its freedom-violating law, policy, regulation, or decision is rational, violates the charter right or freedom as little as possible, and actually brings benefits that exceed the costs and harms.
When governments claim that their freedom-violating health orders and mandatory vaccination policies are based on science, both the Oakes test and the charter itself require judges to take a hard look at the government’s “science” claim, to determine its veracity. A judge should understand that government is not God, “who can neither deceive nor be deceived” according to religious teaching. Au contraire, governments across the globe and throughout history have frequently demonstrated that they can deceive and be deceived. Hence the pressing need for unbiased judges who assess evidence fairly and with a healthy skepticism, favouring neither the government nor the citizen who claims that her charter rights are unjustifiably violated by government.
Judges have signed-up for a job that requires listening to competing experts, analyzing their reports, weighing the evidence, arriving at a conclusion, and then explaining why the winning party’s evidence was stronger and more persuasive than the losing party’s evidence. Judges routinely evaluate the strength of the scientific evidence that litigants present, even when the judge (in most cases) has no academic credentials or career experience in that field of science. For example, judges without any medical training will determine whether a defendant doctor was negligent when performing a surgery on a plaintiff patient. When several parties sue each other over the collapse of a building, a judge who has no training or experience as an architect, engineer or construction manager will nevertheless assign liability.
Judges have no qualms about assessing the scientific strength of clashing claims and competing expert reports when dealing with criminal law, family law, and all kinds of civil claims. Oddly, some judges suddenly lose their willingness to apply the same thinking, reasoning, and analytical faculties when confronted by a government chanting “science” as a mantra or slogan. Upon hearing the government’s claim to possess “the science,” some judges seem to conclude that the government can neither deceive nor be deceived. Judges then simply rule in favour of the government, without seriously analyzing the actual evidence that was put before them by both sides.
“Various affidavits were filed on this hearing, including evidence from medical experts. These experts disagree on several points, including the extent to which Covid-19 posed an unprecedented threat to public health, the extent to which the virus can be transmitted outdoors, and the extent to which religious gatherings pose a greater risk of transmission than retail settings. My role is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid-19. The question before me is not whether certain experts are right or wrong. The question is whether it was open to Ontario to act as it did, and whether there was scientific support for the precautionary measures that were taken.”
One can see the contradictions in this statement. While declaring that she is “neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid-19,” the judge nonetheless rules in favour of the Ontario government’s violations of charter freedoms. She effectively resolves the scientific debates and controversy in favour of the government, but without taking a hard look at the evidence presented by both sides and then determining which side’s evidence is stronger.
If the judge is not equipped to resolve scientific debates and controversy, how can she possibly assess whether the government has any “scientific support” (let alone enough “scientific support”) to justify violating the fundamental charter freedoms of citizens? While upholding the government’s violations of Ontarians’ freedoms, the judge makes no effort to explain why or how the government’s evidence is better or more persuasive than the evidence presented to her by citizens who depend on her to defend their charter rights.
In other words, what the judge really says is: The government need only show me a little bit of scientific “support” (not proof and not compelling evidence) and I will then readily approve and endorse the government’s violations of Charter rights and freedoms. I will not hold the government accountable to the full weight of the charter; I will not require the government to justify demonstrably with persuasive evidence that its freedom-violating laws are rational and are actually doing more good than harm. I refuse to weigh the evidence that is put before me by competing experts, even though I do this all the time in other legal disputes that I rule on. I do not require the government’s evidence to be stronger or more compelling than the evidence put forward by citizens, because government can neither deceive nor be deceived.
Sadly, this is not the only case where the charter’s standard that governments must “demonstrably justify” any violation of a charter right or freedom was overlooked. The new standard adopted by judges seems to be that the federal and provincial governments can violate our human rights and constitutional freedoms with impunity, provided the government claims that some emergency exists and that there is some unknown quantity of “scientific support” for charter-violating laws and policies.
These same judges are likely to approve new laws to confine us to the “15-minute city” where we live, and uphold the government’s violation of our charter-protected mobility rights. The government would simply need to claim that a “climate emergency” exists and trot out a vague amount of “scientific support.”
These same judges might not bother taking a hard look at the evidence before them. Why bother giving serious consideration to the evidence put forward by citizens who assert their charter-protected mobility rights when the government has provided a little “scientific support” to deal with its “emergency”?
As the judge in the Ontario v. Trinity Bible Chapel case said, “I am neither equipped nor inclined to resolve scientific debates and controversy” … although she does consider herself to be sufficiently equipped to rule in favour of the government violating our charter rights and freedoms.
