Canadians are facing many complex problems about which nothing is being done. These include the cost of living, lack of housing, unemployment and a stalled economy. Lost in this smorgasbord of problems is yet another serious problem about which there has been little awareness, even though it is causing unrest and discontent across the country. The problem is judicial activism, whereby judges using the Charter of Rights have moved from their proper role of interpreting the law, to that of making laws which involve public policy matters that should be determined by elected legislatures, not the courts. Judges have neither the right nor the competency or aptitude to do so.
Today’s judges are merely lawyers who, during the previous ten years under Justin Trudeau, have been appointed, not on merit, but on the basis that they have financially contributed to the Liberal party, which indicates that they have a progressive perspective. These judges arrogantly assume that by their appointment to the Bench they are entitled to hand down judgements based on their personal ideology, rather than on legal principles. In doing so they are changing the social fabric of Canada. The changes they have made are endless, including but not limited to, abortion, euthanasia, LGBTQ rights & transgenderism, pornography, prostitution and limitations to freedom of speech, to name just a few. To make these changes they have recklessly abandoned the Judeo-Christian principles on which Canada has been based and on which it has flourished throughout the years.
The only barrier to this conceit by these appointed judges is s. 33 of the Charter of Rights, the Notwithstanding Clause, which provides that decisions of the judges may be overturned by the provincial or federal legislatures. Section 33 of the Charter has been used on a number of occasions over the past forty years of the Charter’s existence, especially by Quebec. This use of s.33 has displeased the judges, who seem to believe that all legislation should be subject to their scrutiny and guidelines for review. This ignores the fact that laws are passed by the elected members of the legislature which represent the public. Judges have no constituency except that of individuals who support their woke ideology.
The Supreme Court of Canada is now proposing that it will review the Notwithstanding Clause which it believes should be subject to its scrutiny and guidance in the case to be heard in 2026, English Montreal School Board v. Attorney General of Quebec.
If the Supreme Court decides that it has jurisdiction to restrict the application of the Notwithstanding Clause, this will have explosive ramifications legally, politically and socially. The provinces of Quebec and Alberta are already experiencing frustration over their inability to legislate on matters affecting their provinces. Such a decision would also mean that the woke, progressive court will continue to rule on social issues. This will be the case should the Liberals continue in power (which already seems to be forever). Even if the Conservatives should become the elected government, it will take many years before the courts can be changed to comprise of judges who are not activists as some of the judges on the Supreme Court today will be sitting for many more years until their mandatory retirement at 75 years of age.
Unfortunately, only five of the provincial Attorneys General to date have intervened in this all-important case to protect the provinces’ use of the Notwithstanding Clause. It is of concern to REAL Women that only five provincial Attorneys General, those from British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, have intervened in this case. In addition, these Attorneys General in the five intervening provinces have been advised by the Supreme Court that they cannot appear in person to argue their position before the court but are restricted to only a ten-minute appearance on Zoom. They have also been restricted on the length of their written arguments to only ten pages. This scarcely provides adequate opportunity for the provinces to represent the view of the public on the Notwithstanding Clause.
Therefore, REAL Women has recently written to all the Premiers and the Provincial Attorneys General expressing our concerns about this upcoming case before the Supreme Court. We have included with our letter an overview of Judicial Activism in Canada, detailing our concerns. See attached for those who wish further information.
We would request that our members write to the Attorneys General and Premiers in their respective province or territory, encouraging them to intervene in this case and/or to extend their presentations by addressing the court directly on behalf of the public and not be subject to any abbreviated intervention. Further, Canadians should not be subject to the undemocratic, woke decisions of judges without the capacity of the legislatures to override their decisions. For your convenience, please find below the addresses of the Premiers and the Attorneys General.
Judicial Activism in Canada
It is not always easy to follow, let alone understand, the reasoning emanating from the Supreme Court of Canada. Since the advent of the Charter of Rights and Freedoms in 1982, the Supreme Court has evolved into an institution pre-occupied with ratifying a woke ideology, more concerned with its self-image than with the substance of its judgements. One only needs to look at Chief Justice Richard Wagner’s on-going publicity tour on the occasion of the Court’s 150th Anniversary to appreciate the carnival nature of the Court in the third decade of the 21st Century.
Form Over Substance
So far this year, Wagner’s Traveling Circus has been to Victoria, BC (February) and Moncton, NB (March). Coming up: Yellowknife, NWT (September); Sherbrooke, QC (October) and Thunder Bay, ON (November). Not the first time to hit the road, Wagner and the entire Court made road trips to Winnipeg in 2019 and Quebec City in 2022 where they heard two appeals in each city as well as took part in numerous public relations of “meet & greet”. If these judges were not appointed, one would think that they were actively campaigning for office!
One look at the press releases issued by the Supreme Court’s Public Relations Department and one quickly appreciates that this is no longer a Supreme Court concerned with the legitimacy of its judgements. Instead, the Court’s main concern is now firmly focused on its image: form over substance.
These feel-good self-congratulatory tours and the accompanying hype surrounding a Supreme Court mascot, flag and other heraldry are all distractions from a far more dangerous reality: the increasingly weak reasonings in Court judgements and the corresponding loss of public confidence. Indeed, all too often, one must look to the dissents of such former Justices as McIntyre or Brown, or current Justices Côté or Rowe to glean any sense of judicial wisdom and sensibility.
For the most part, the Court’s majority judgements since 1982 have evidenced the continued usurpation of power away from Parliament to the judiciary. The shift from Responsible Government to Judicial Dictatorship has been over forty years in the making and with the exception of a few provincial governments resisting this trend by invoking the Charter’s Notwithstanding Clause (s. 33) the federal Parliament and successive federal governments have done nothing to prevent this judicial overreach.
Curtailing Judicial Overreach
Since its enactment in 1982, the courts have used the Charter to, in effect, enact a leftist “progressive” policy agenda, an agenda that would never have been possible to enact in Parliament. From the liberalization of abortion to assisted suicide, there has not been a leftist policy fantasy that has not ultimately found favour with the Supreme Court and progressive regressive judges across the country.
Long gone are the days of the Chief Justice Dickson Court, when he managed to preside over a Court which was aware of, and respected, the distinction between legislative and judicial functions. In other words, courts interpret the law, the legislature makes the law. Since the Charter, such relative restraint on judicial activism has been relegated to a footnote in the Court’s jurisprudence as courts are now fully engaged in making public policy. Since then, Canadians have been treated to many examples of judicial hubris, such as that of Justice Rosalie Abella’s reasons in Saskatchewan Federation of Labour v. Saskatchewan (2015) in which she invented a Charter “right to strike”, including essential services such as police, firemen etc., under the guise of the freedom of association guaranteed by s. 2(d). Sounding more like a Priestess of the Cult of Charter Rights than a Justice of the Supreme Court, Abella opined in paragraph 3 of her Reasons, that it was “time to give this conclusion [right to strike as an indispensable component of collective bargaining] constitutional benediction.”
Equally problematic was the entire Court’s judgement, also from 2015, in Carter v. Canada (Attorney General) in which the euthanasia MAiD Death Regime was imposed by the Court. As anyone who has been following the aftermath of the Carter decision knows only too well, the Court’s hubris has resulted in the deaths of thousands of Canadians as the MAiD Regime becomes more liberalized and more bureaucratized. In 2016, MAiD accounted for approximately 1,000 deaths in Canada. However, by 2023, MAiD was responsible for 15,343 actual deaths. That number would have been higher had not 2,906 died before receiving MAiD! Since 2016, there have been 60,301 MAiD deaths—by contrast, there were approximately 42,000 Canadians killed in World War II. The MAiD deaths in 2023 accounted for 4.7% of all deaths in Canada, which now brings Canada on par with the Netherlands where its Euthanasia Regime accounts for 4.1% of deaths.
Most recently, in Canada (Attorney General) v. Power (2024), a majority of the Supreme Court re-wrote Canada’s “constitutional architecture” and held that the Crown, in its executive capacity, could be held liable for Charter damages to individuals for preparing legislation that is later struck down by the courts. The Court also ruled that Parliament could be held liable for Charter damages in enacting legislation which is later struck down. In doing so, the Court gave itself de facto final authority over Parliament’s legislative process thereby subverting fundamental principles of Canada’s constitutional architecture: parliamentary privilege and parliamentary sovereignty.
Supreme Court Not the Only Problem
Judicial hubris leading to judicial activism is not confined to the Supreme Court but can be found in ripe abundance in many courts across the country. For example: the recent decision by a B.C. Supreme Court judge, Madam Justice Barbara Young (whose primary legal practice in Vancouver consisted mainly of family law, personal injury and bankruptcy), in Cowichan Tribes v. Canada (Attorney General), has now muddied the waters of Aboriginal land claims by calling into question the legal status of some 1,846 acres of land which includes the City of Richmond, port lands, farms and commercial properties; or the Saskatchewan Court of Appeal’s decision in Saskatchewan (Minister of Education) v UR Pride Centre for Sexuality and Gender Diversity, in which four of five judges invite further judicial activism by allowing judicial review of legislation despite the use of the Charter’s Notwithstanding Cause (s. 33); or the judgement of the Ontario Superior Court of Justice in Cycle Toronto et al. v. Attorney General of Ontario et al., in which Mr. Justice Paul Schabas recognized a constitutional right to bike lanes, offering one of the most daring examples of s.7 expanding rights seen in recent times. The implications are huge, as the court’s opinion significantly extends the meaning of the Charter’s s. 7 guarantees of the right to life, liberty and the security of the person beyond mere prohibition of state action but now opens up the state’s positive obligation to secure such rights.
Implications of Judicial Activism
These and other examples, all share a number of alarming features, five of which are perhaps the most obvious. First, given the notoriety of many decisions, they obscure the fact that there are many judges who take their role seriously and respect the political/legal boundary. Sitting in judgement, whether on criminal cases or civil disputes, is often a hard and demanding job, especially when one considers the human stories and impact that a court’s decision will have.
Second, the more courts overreach, whether adjudicating Aboriginal land claims or claims affecting bike lane land, they are clearly making political decisions—decisions without any legitimacy of electoral approval. As such, the more activist the decision, the more courts lose their institutional credibility and erode public confidence. We all need to remember that we live in a Constitutional Monarchy, the legitimacy of which rests on the foundation of RESPONSIBLE GOVERNMENT which means accountability and the consent of the governed. In other words, the law’s legitimacy rests not on the Divine Right of Kings or their appointed officers—of which judges are but one type, but on the consent of the electorate as made manifest through Parliament.
Third, excessive judicial activism carries a real danger of constitutional crisis and civil unrest. Unlike the Executive Branch, which has a police force to enforce its laws, whether passed by the legislative body or by Order-in-Council, i.e., Regulations, Courts have no para-military force to enforce their rulings. As Canadian society becomes more fragmented and polarized, it is not hard to imagine cases, e.g., concerning resources or provincial culture, in which the Supreme Court rules against a provincial government and the response from that government, buttressed by popular support in that province, is to simply defy the ruling, which would be the de facto end of Confederation.
Fourth, judicial activism weakens democratic and Parliamentary processes by short-circuiting debate and lessening accountability. Too many politicians—of all political parties, are only too happy to hide behind court decisions which enshrine a progressive agenda into law, an agenda which would never receive a legitimate mandate through the ballot box.
Fifth, the average Canadian would be hard pressed to read through court decisions and understand what is going on—that is true of a great deal of lawyers as well as non-lawyers! As a matter of legitimacy, law should not be hard to understand, nor should the reasons for the law. In a self-governing country such as Canada, it is not enough to simply say: “Do what you are told because I said so.” Canadian voters, who are adults after all, deserve to be treated as adults, which means that they are entitled to know the reasons why the law is the way it is. The problem with so much of current judicial reasoning is that it is written not to be understood by the majority but instead it is written for governing elites. Over time, this undermines the law’s legitimacy as well as the reality of self-government.
The alternative to Rule by Judges is Responsible Government. It is high time for Canada’s legislative bodies to remind the courts of that reality and for Canadians to insist that it be respected if Confederation is not to flounder and become nothing more than another chapter in the book of failed countries.
Premiers of Canada:
Hon. Danielle Smith
Premier of Alberta
307 Legislature Building
10800 – 97 Avenue
Edmonton AB T5K 2B6
premier@gov.ab.ca
Hon. David Eby
Premier of British Columbia
PO Box 9041
Station Provincial Government
Victoria BC V8W 9E1
premier@gov.bc.ca
Hon. Wab Kinew
Premier of Manitoba
204 Legislative Building
450 Broadway
Winnipeg MB R3C 0V8
premier@manitoba.ca
Hon. Susan Holt
Premier of New Brunswick
Chancery Place
PO Box 6000
Fredericton NB E3B 5H1
premier@gnb.ca
Hon. John Hogan
Premier of Newfoundland and Labrador
Confederation Building, East Block
PO Box 8700
St. John’s NL A1B 4J6
premier@gov.nl.ca
Hon. Tim Houston
Premier of Nova Scotia
PO Box 726
Halifax NS B3J 2T3
premier@novascotia.ca
Hon. Doug Ford
Premier of Ontario
Legislative Building
Queen’s Park
Toronto ON M7A 1A1
premier@ontario.ca
Hon. Rob Lantz – Chair
Premier of Prince Edward Island
Shaw Building
PO Box 2000
Charlottetown PE C1A 7N8
premier@gov.pe.ca
Hon. François Legault
Premier of Québec
Édifice Honoré-Mercier, 3e étage
835, boul. René-Lévesque Est
Québec QC G1A 1B4
premierministre@quebec.ca
Hon. Scott Moe
Premier of Saskatchewan
226 Legislative Building
Regina SK S4S 0B3
premier@gov.sk.ca
Hon. R.J. Simpson – Vice-Chair
Premier of the Northwest Territories
PO Box 1320
Yellowknife, NT X1A 2L9
premier@gov.nt.ca
Hon. P.J. Akeeagok
Premier of Nunavut
PO Box 2410
Iqaluit NU X0A 0H0
pakeeagok6@gov.nu.ca
Hon. Mike Pemberton
Premier of Yukon
PO Box 2703
Whitehorse YK Y1A 2C6
premier@yukon.ca
Attorneys General of Canada:
Hon. Mickey Amery
Minister of Justice
Members of Executive Council
Executive Branch
424 Legislature Building
10800 – 97 Avenue
Edmonton, AB T5K 2B6
ministryofjustice@gov.ab.ca
Hon. Niki Sharma
Attorney General
PO Box 9044
Station Provincial Government
Victoria, BC V8W 9E2
AG.Minister@gov.bc.ca
Hon. Matt Wiebe
Minister of Justice and Attorney General,
MLA—Concordia
Legislative Building
Room 234 – 450 Broadway
Winnipeg, MB R3C 0V8
matt.wiebe@yourmanitoba.ca
Hon. Robert McKee, K.C.
Minister of Justice and Attorney General
Office of the Attorney General
Chancery Pl., Rm. 2078
PO Box 6000
Fredericton, NB E3B 5H1
Robert.McKee@gnb.ca
Hon. Andrew Parsons, KC
Office of the Attorney General
Department of Justice and Public Safety
4th Floor, East Block
Confederation Building
P.O. Box 8700
St. John’s, NL A1B 4J6
justice@gov.nl.ca
Hon. Becky Druhan
Attorney General and Minister of Justice
Department of Justice
1690 Hollis Street
P.O. Box 7
Halifax, NS B3J 2L6
JUSTMIN@novascotia.ca
Hon. Douglas Downey
The Attorney General of Ontario
McMurtry-Scott Building
11th Floor, 720 Bay Street
Toronto, ON M7A 2S9
doug.downey@ontario.ca
Hon. Bloyce Thompson
Minister of Justice and Public Safety
and Attorney General
4th Floor, Shaw Building South
95 Rochford Street
PO Box 2000
Charlottetown, PE C1A 7N8
MinisterJPS@gov.pe.ca
Hon. Simon Jolin-Barrette
Ministre de la Justice
Édifice Louis-Philippe-Pigeon
1200, route de l’Église
9e étage
Québec (Québec) G1V 4M1
ministre@justice.gouv.qc.ca
Hon. Tim McLeod
Minister of Justice and Attorney General
Room 355
Legislative Building
2405 Legislative Drive
Regina, SK S4S 0B3
jus.minister@gov.sk.ca
Hon. Marie-Clare Boothby
Attorney-General
Government of the Northwest Territories
PO Box 3146
Darwin, NT 0801
minister.boothby@nt.gov.au
Hon. Pamela Gross
Minister of Justice
Department of Justice
P.O. Box 1000, Station 500
Iqaluit, NU X0A 0H0
nlsb@gov.nu.ca
Hon. Minister Tracy-Anne McPhee
Attorney General and Minister of Justice
Yukon Legislative Assembly
Box 2071 Second Avenue,
Whitehorse, YT Y1A 2C6
Tracy.McPhee@yukon.ca