Politicians continue to target the courts irresponsibly

Several Canadian premiers are once again taking swings at the judiciary in this country. 

During an appearance on the Your Province, Your Premier radio show on Dec. 6, Alberta Premier Danielle Smith attacked the constitutional role courts play in Canada’s democracy.

“The will of Albertans is not expressed by a single judge appointed by Justin Trudeau and never faces any kind of recall campaign, never faces any kind of election,” she said.

The premier suggested that a federally appointed judge wasn’t able to render impartial rulings.

“The people have told us through our consultation, through our elections, the kinds of things they want us to do, and then we go and do them, and then the court can override it. And again, most of the judges are appointed by Ottawa and not by us,” Smith said. 

“An unelected judge is not synonymous with democracy. Democracy is when elected officials who have to face the electorate every four years get to make decisions. That’s what democracy is.”

Crossing the line

In a statement, CBA President Bianca Kratt said this is the latest example of rhetoric crossing the line from legitimate criticism of court decisions to unfounded attacks on the courts themselves. 

“This troubling trend threatens public confidence in our justice system and puts the rule of law at risk,” she said.

Regardless of political affiliation, every federal and provincial government will face court rulings it doesn’t like, Kratt said. That’s how our system is set up. Under the Constitution, courts and elected lawmakers have distinct and complementary roles, which occasionally lead to tensions. When that happens, each party has a responsibility to refrain from statements or actions that undermine the other's legitimacy.

“In a free society, it is emphatically not the courts' role to simply get out of the government's way,” she said. 

“Rather, courts must ensure that laws are followed, including by the government, and that constitutional rights are upheld, regardless of which party is in power.”

In a Substack post republished by The Tyee, University of Alberta political science professor Jared Wesley points out that “judges didn’t wake up one morning and seize power like some kind of mafia.”

It was John Diefenbaker’s Progressive Conservative government that enacted the Canadian Bill of Rights in 1960, empowering courts to refuse to apply laws that violated Canadians’ fundamental freedoms. Then, in 1982, after years of negotiations between the federal and provincial governments, the Charter of Rights and Freedoms was enacted. 

“Judges weren’t at the table rewriting the Constitution,” Wesley noted. 

“They were assigned a role by elected politicians, many of whom — including Peter Lougheed — are among this country’s most venerable conservatives.”

Kratt said that if a government disagrees with a court decision, it always has the option to appeal. If legislators believe the law should be changed, they can amend it in line with the Constitution. If they want bigger change, they can seek constitutional amendments through established democratic processes. 

“What they cannot do is demand that courts defer to their political preference or claim that elected officials alone should define the scope of constitutional rights,” she said.

“Being elected gives governments the power to change the law, but never the right to stand above it.”

Judges not ‘staging a coup’

In his post, Wesley said when courts strike down a law or tell a government to go back and rewrite it, “they aren’t staging a coup.” 

“They’re doing the job we, through our elected representatives, gave them. If there’s a problem, it’s not that judges exist. It’s that populists don’t like being told ‘no.’”

However, it’s not just populist premiers like Smith levelling criticism at the courts. Next door in British Columbia, NDP Premier David Eby also took aim at the judiciary in the wake of two First Nations court decisions. The first was from the B.C. Supreme Court, which awarded Aboriginal title to the Cowichan of an area, including private land, within Metro Vancouver.

The second decision was from the B.C. Court of Appeal on Dec. 5, which gave “immediate legal effect” to the United Nations Declaration on the Rights of Indigenous Peoples and imposed a binding obligation on the province to abide by its own legislation, the Declaration on the Rights of Indigenous Peoples Act, which is based on it.

“To face such dramatic, overreaching and unhelpful court decisions as we have seen over the last couple of months, is deeply troubling,” Eby told the B.C. Chamber of Commerce on Dec.10.

“It’s hard to understate the damage that could be done or has already been done to public support for the delicate, critical and necessary work we have to do with First Nations. British Columbians, not judges, have to decide our path forward. There are no judicial shortcuts to this work.”

In an interview, Wesley told National regardless of who’s levelling criticism of the courts, it’s “irresponsible.”

It’s worth noting that Eby is a former lawyer. Smith isn’t, but Wesley says “she's surrounded by people that have legal training and ought to know better.” That includes her chief of staff and justice minister.

“They should at least know the fundamentals of judicial independence and the rule of law. They've shown no indication of knowing that at this point,” he says.

In a statement, CBA BC President Patricia Blair said the branch is “deeply concerned” about Eby’s “irresponsible comments.” 

“It’s hard to understate the damage that can be done by exerting political pressure on judges to align their rulings with the government of the day,” she said.

In a letter to the premier, Blair urged the premier to be more responsible in his public comments.

“Judicial independence is crucial to safeguard legal rights, making sure that individuals and communities without political influence are treated fairly and are protected from government overreach or the sway of popular opinion,” the letter noted.

Determined to delegitimize

Wesley says Smith has been keen to undermine the courts since taking office in late 2022. It started with the Alberta Sovereignty within a United Canada Act, which he says was aimed at delegitimizing anyone outside her cabinet who might somehow thwart her agenda. 

“She's said that she would be the arbiter of what's constitutional and not constitutional, that the federal government's laws would only apply if she agrees that they should,” he says, noting he was among those who raised alarm bells at the time, only to have people dismiss it as rhetoric.

“But now we're starting to see that the rhetoric actually is being backed up by legislation … The premier continues to try to delegitimize the very people who are there to hold her in check, namely the judiciary. She picks fights with the very people who are going to hold her to account to abide by the Constitution.”

Wesley says the worry here is the impact that it has on her supporters. 

“If a judge issues a decision, if the federal government passes a law, Smith is encouraging people not to abide by those unless she says that they're valid,” he says. 

“That's not in keeping with Canada's liberal democratic traditions or the Constitution. 

Asked if he thinks premiers who have attacked the judiciary, including Ontario’s Doug Ford, appreciate the risk of what they’re doing at a time when the rule of law is under attack worldwide, including south of the border, Wesley says he doesn’t think they’ve given it much thought.

“You and I have talked about it more than I think that they have in the premier's office. Populists … are all about ends. They don't care at all about means, and they're hoping that nobody else does.”

Ultimately, their focus is on strategy and political gamesmanship.

“It’s about owning your opponents, moving things through very quickly, using the law as a weapon, as opposed to a tool for reform.”

Undermining stability and the economy

Ironically, political rhetoric criticizing the courts appear to be intensifying at a time when the focus across the country is on economic development and mitigating economic attacks from the Trump administration. Yet, legal experts say upholding the rule of law is critical to Canada’s economic transition and stability.

Former Supreme Court Chief Justice Beverley McLachlin recently told the CBA’s construction law conference that in the face of tariffs and volatility at the hands of the U.S., Canada needs the rule of law. It has established a reliable way of doing business, helped settle the rules for creating complex contracts, and allowed bankers to raise capital for expensive projects due to the assurances that disputes will be dealt with fairly and court decisions will be enforced.

“We have got to look at this as an asset that we have, and we've got to keep it strong. We can't let it slip the way it's slipping south of the border,” she said. 

“We can't tolerate situations where executives tell judges what they should do or accuse them of terrible things if they don't do it. We need to have a system where court orders are enforced promptly and not let to lag. And we have all those things.”

Upholding this “great asset” means Canada remains a good place to do business. But it won’t stay that way if more people don’t stand up for it, Wesley says.

He has spoken to law societies and rooms of lawyers, sitting judges and retired judges, and says he receives a lot of nods of agreement that this is all detrimental to democracy. But he tells them he doesn’t hear enough people taking a stand against it. 

“I have reminded lawyers repeatedly that, according to our own studies of how Albertans think about their government and dominant groups in society, most Albertans consider lawyers to be fully in lockstep with the United Conservative Party.”

Wesley says most lawyers are usually aghast by this and insist they’re completely opposed to the UCP’s agenda. 

“Well, unless you speak out, then that silence is going to be seen as being complicit. The longer people remain silent, the more people will think that the legal community is on (side with the UCP). I know for a fact that they're not, (but) somebody’s got to step up.”

Why continually fight with the courts?

National reached out to Smith’s office to ask for her response to those who say her attacks on the courts threaten public confidence in the justice system, put the rule of law at risk, and potentially undermine economic development and ultimately, democracy.

The request was referred to the office of Minister of Justice Mickey Amery, which provided audio from a scrum he did with reporters on Dec. 8 about Bill 14, which was tabled on Dec. 4 and has since passed into law. The Alberta Court of King’s Bench defeated the separatist referendum question earlier this month, but the bill’s passage effectively means the court decision is null and void.

In his decision, Justice Colin Feasby had scathing criticism for the government for circumventing the courts with Bill 14, calling it the antithesis of the rule of law. 

Asked by a journalist why he and the premier are continually trying to delegitimize the role of courts and judges, knowing that the judiciary is a branch of our political system and part of democracy, Amery said he “would disagree with that,” insisting that while the judicial branch has a vital role within our democracy, so does the legislative and executive branch. 

“In this legislature, we develop policies. We … provide for an opportunity, both within the house and outside of the house, for robust public consultation and contributions.”

So why continually fight with the courts, the journalist pressed.

“Again, I disagree with that as well. The purpose of the courts is to resolve disputes that may arise. We're certainly very much cooperating with the courts in that regard. But again, the purpose of the legislature is intended to make bills that are important. So this is one of those bills. It has nothing to do with what the courts do or how they operate.”

The UCP has invoked the notwithstanding clause four times in less than two months this fall to bypass judicial scrutiny of controversial legislation.

National reached out to Premier Eby’s office for comment, but did not receive a response.