Over the years 2022 and 2023, Canadian judges have made several rulings that uphold government violations of fundamental charter freedoms in Canada. While this is alarming, a more distressing trend is the refusal of some judges to require governments to prove that their infringement on charter rights does more good than harm. Since 1986, the Supreme Court of Canada in the case of R. v Oakes set a precedent requiring the government to demonstrate that its freedom-violating policy is rational, violates charter rights as little as possible, and brings about benefits that outweigh harm.
When the government claims that their health orders and mandatory vaccination policies are based on science, judges are bound by law to scrutinize the governmentās science claim. This requires unbiased judges to assess evidence fairly, without favoring the government or the citizen making a case that their rights have been unjustifiably violated. Judges have the responsibility to analyze the strength of the scientific evidence that is presented, regardless of their background in that field of science.
It is concerning that while judges are accustomed to evaluating scientific evidence in various other areas of law, some judges seem to lose their willingness to apply the same level of scrutiny when it comes to the governmentās āscienceā credence. The prevailing practice seems to be to allow federal and provincial governments to violate fundamental rights with impunity, based on the mere claim of an emergency, regardless of whether their policies demonstrate ādemonstrable justificationā for a violation of charter freedoms. This suggests that the judiciary is abandoning its duty to uphold the full weight of the charter, and instead accepting vague scientific claims made by the government. This trend raises concerns about the potential for further violations of charter-rights in the future.