OTTAWA, ON (May 12, 2026):
Canada’s constitutional balance is being upended by judicial decisions that have expanded the role of courts while subverting Parliament’s traditional authority.
In Unseating responsible government: Judicial interference in Canada’s parliamentary democracy, authors Geoffrey Sigalet, Kerry Sun, and Yuan Yi Zhu investigate the expansion of judicial power by reviewing the ways in which Canadian courts have undermined the traditional modes of parliamentary governance.
The authors contend that the weakening of judicial restraint has unsettled the balance between political and judicial authority within Canada’s constitutional order.
The Honourable Jack C. Major, a former Supreme Court Justice, warns in a special foreword for the report that the trend risks creating unnecessary conflict between the courts and Parliament while eroding the role of legislatures in shaping public policy.
- Expansion of the “living tree” doctrine to justify evolving constitutional interpretations.
- Growing use of judicial balancing tests to subordinate rights questions to broad proportionality analysis.
- The reading of section 7 of the Charter as a sweeping mechanism for reviewing policy.
- The increasing willingness of courts to scrutinize parliamentary processes themselves.
- Reassert legislative authority through appropriate use of the notwithstanding clause.
- Direct Crown counsel to challenge problematic judicial precedents.
- Amend legislation to prevent courts from questioning parliamentary proceedings.
- Tighten procedural thresholds to limit politically motivated litigation.
- Clarify section 24 of the Charter to limit judicial remedies relating to legislative conduct.
- Bring back the traditional Supreme Court gowns to signal respect for our constitutional traditions.
“Canada’s constitutional order depends on a careful balance,” note the authors. “Reasserting it is essential to preserving a system in which elected representatives, not courts, remain at the centre of public decision-making.”
To learn more, read the full paper here:
Geoffrey Sigalet is a senior fellow at the Macdonald-Laurier Institute, assistant professor of Political Science at the University of British Columbia’s Okanagan campus, and the director of the UBC Research Group for Constitutional Law.
Kerry Sun is a doctoral student at Merton College, Oxford, and a Fortescue Scholar with the Canterbury Institute.
Yuan Yi Zhu is an assistant professor of international relations and international law at Leiden University.
For further information, media are invited to contact:
Skander Belouizdad
Communications Officer
(613) 482-8327 x111
Skander.belouizdad@macdonaldlaurier.ca
