Through research, dialogue, and public engagement, the Judicial Foundations Project will explore and articulate the legitimate scope of judicial power and the risks associated with its growing influence in Canada’s parliamentary democracy. By fostering informed debate. The initiative aims to strengthen Canada’s democratic foundations and ensure that the delicate relationship between the courts, Parliament, and the executive continues to serve the common good.
Canada’s constitutional order, which is founded upon the principles of the United Kingdom constitution, embraces the primacy of political authority. Under the Westminster model of responsible government, it is Parliament, not the courts, that is charged with the responsibility to make and to change the law. Underscoring this primacy of political over judicial authority, the Constitution Act, 1867 establishes and vests “Executive Power” and “Legislative Power”, while providing for the “Judicature” or “The Administration of Justice” to be framed by the appointment and law-making powers of the Governor General and provincial legislatures, respectively.
The traditional primacy of the legislative and executive in law- and policy-making is increasingly displaced by the undisciplined exercise of judicial power. Across a wide array of matters, the policy agenda has largely been dictated by judicial rulings. But this expansion of judicial power is incompatible with the role of courts in a constitutional democracy.
There is a need for sustained reflection on the ways in which judicial power is exercised, the innovative adjudicative methodologies that underlie its expansion, its implications for the relationship between our judicial and political institutions—and, ultimately, its impact on Canadian democracy and the common good. This project seeks to provide Canadians with a deeper understanding of judicial power and its proper limits in the balance of our constitution. It does not seek to diminish our judiciary, but to reestablish the foundations of the judicial role in upholding settled law and legal principle, not choosing policy. We welcome intellectual exchanges with practitioners, scholars, jurists, and all those concerned with the ambit of judicial power in Canada.
Deputy Director of Domestic Policy
