This article originally appeared in the National Post.
By Peter Copeland, Stéphane Sérafin, Kerry Sun, and Yuan Yi Zhu, October 14, 2025
Judicial overreach has become all too common in Canada. From an Ontario judge’s recent decision to block the province from removing bike lanes, to the Supreme Court of Canada’s ruling, last year, declaring a novel right for courts to supervise and question the legislative process, judicial activity has intruded into the realm of elected governments and legislatures.
This dramatic expansion of judicial power is unsettling the balance of our constitution. It undermines the equilibrium between parliament and the courts, replacing the decisions of democratically accountable representatives with appointed judges.
In our constitutional tradition, primary responsibility for the preservation of peace, order, and good government resides in Parliament and the provincial legislatures. This responsibility inheres in the choice made at Confederation by the framers of the British North America Act to endow Canada with “a Constitution similar in Principle to that of the United Kingdom.” Under the Westminster system of responsible government inherited from Britain, it is Parliament, not the courts, that is chiefly responsible for reflecting upon, making, and changing the law. By contrast, the judiciary is tasked with resolving disputes in accordance with law.
The advent of the Canadian Charter of Rights and Freedoms in 1982 is sometimes said to have supplanted this traditional understanding of Canada’s constitutional order. In truth, however, the Charter did not alter the fundamentals of the Canadian constitution, even as it accorded the courts a new set of powers to review legislation. In fact, judges in the early days of the Charter were cognizant of its continuity with Canada’s constitutional inheritance. It was not, as one distinguished jurist noted, “intended to undo 900 years of constitutional development.” These judges also saw that the Charter was grounded in the principles and doctrines of the English common law, and through it, in deeper principles of right reason and justice.
But while the Charter did not displace Canada’s Westminster tradition, that inheritance has eroded over time. Riding the enthusiasm for an adventurous judiciary, law schools across Canada have failed to transmit knowledge of our constitutional foundations to generations of lawyers and judges. The result is predictable: undisciplined exercises of judicial power that are profoundly incompatible with the role of courts in a constitutional democracy.
Drawing on the “living tree” approach to constitutional interpretation, the courts have often stretched the meaning of the law beyond the confines of the text, legislative intent, and accumulated common law precedent in order to craft novel readings of contested terms. They have politicized the implementation of key sections of the Charter, relying on doctrines such as “substantive equality” — an amorphous and unstable notion that licenses judicial interventionism — over the equal application of the law to all.
The consequences of this overreach are alarming. Over a wide array of policy matters, the agenda has largely been dictated by the exercise of judicial power, ranging from contentious social issues such as assisted suicide, the treatment of drug addiction, and education policy, to decisions on urban planning,climate change, and governmental spending priorities. Meanwhile, the courts have assumed near-absolute authority over criminal sentencing, striking down mandatory minimums as low as six months for child luring as “cruel and unusual punishment.”
The course of our nation is now increasingly plotted not through democratic deliberation, but through activist litigation or “lawfare” funded by interest groups and the Canadian taxpayer. Public trust in the courts is damaged by the wayward rulings, while political authority is undermined by judicial innovations and incursions into policymaking.
In response, the Macdonald-Laurier Institute is launching the Judicial Foundations Project, an initiative to appraise the rise of judicial power and its impact on Canadian democracy. Over the next two years, the project will provide a much-needed platform to discuss how to recover Canada’s constitutional balance and its tradition of parliamentary governance for the common good. It aims to articulate the legitimate boundaries of judicial power, scrutinize judicial interference with core criminal justice objectives like retribution and community safety, and restore foundational commitments to equality before and under the law.
More than forty years after the adoption of the Charter, the question of how public policy is developed, and by whom, is more pressing than ever. There is a need for sustained reflection about judicial power and the dangers of judicial overreach. If Canadian courts are to maintain the confidence of the public, it behooves them to rediscover the humility, restraint, and discipline that once defined our judicial institutions. It also means that our elected representatives, instead of deferring to the judiciary on contentious policy issues, must reclaim their constitutional role. The Judicial Foundations Project will contribute to the public and academic discourse on the state of our judiciary and outline a path to restore the proper exercise of judicial power.
Peter Copeland is the deputy director of domestic policy at the Macdonald-Laurier Institute.
Stéphane Sérafin is a practicing lawyer and a Senior Fellow at the Macdonald-Laurier Institute.
Kerry Sun is a doctoral student at the University of Oxford and Research Associate at UBC’s Centre for Constitutional Law and Legal Studies.
Yuan Yi Zhu is an assistant professor in international relations and international law at Leiden University, The Netherlands and a Research Associate at the University of British Columbia’s Research Group for Constitutional Law and Legal Studies.
