Doug Ford’s attacks on judges are an affront to Canadian democracy

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Nader R. Hasan is a criminal and constitutional lawyer and partner at Stockwoods LLP.

Doug Ford’s attacks on judges have become both frequent and dangerous.

At the recent Premiers’ conference in Hunstville, Ont., Mr. Ford again railed against judges for being “weak-kneed” in a tirade about bail reform. Earlier this year, in response to his government losing a motion about bike lanes, he suggested that judges should be elected. He has previously expressed a desire to appoint only “like-minded” judges, called the principle of judicial independence a “joke,” and lamented that “the system is broken, and there’s a lot of terrible, terrible bleeding-heart judges out there.”

Mr. Ford is by no means the only Canadian politician taking cheap shots at judges these days, but his attacks have become almost routine – a talking point almost as ubiquitous as his vague promises to create jobs and grow the economy.

To be clear, there is nothing wrong with criticizing the correctness of a judge’s decision; appellate lawyers do it all the time. But Mr. Ford’s attacks on judges are dangerous because they suggest that judges’ decisions are illegitimate or that they are politically driven. His rhetoric risks doing long-term harm to Canadian democracy and upsetting the constitutionally entrenched balance of power between the executive, legislative and judicial branches of government.

Attacks like those of Mr. Ford’s have grown so common that the Chief Justices of the Ontario Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice recently took the unusual step of issuing a joint statement reminding us about the importance of judicial independence.

“Judicial independence is a cornerstone of our constitutional democracy,” they wrote. “An independent judiciary protects the public, not just judicial officials. It means a society governed by the rule of law.”

Ontario Premier Doug Ford suggests U.S.-style elected judges, calls judicial independence a ‘joke’

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These words are not mere bromides. Judicial independence – the ability of judges’ to do their jobs without interference from the other branches of government – is an essential ingredient in a functioning constitutional democracy.

Mr. Ford’s most charged tirades against the judiciary arise when courts tell him he can’t do something – whether that thing is abolishing bike lanes or running roughshod over collective bargaining rights. His view is that judges should never be “overruling the government.”

He is wrong. In a healthy and functioning constitutional democracy, nobody is above the law – not even the Premier or Prime Minister. The courts’ very role is to strike down laws and prohibit government action when the government exceeds the scope of its power under the Constitution.

Without judges courageously striking down laws that are unconstitutional, women in this country would not have the right to choose whether to carry a pregnancy to term. We would not have equal marriage. We would not enjoy due process when accused of a crime. We would not have rights preventing the police from entering and searching our homes without just cause. We would not have the right to protest in the streets or speak out against government.

These rights exist because of judges who exercised their independence and gave effect to the Constitution – without worrying what the politicians would say.

Although credit goes to the visionaries who drafted the Canadian Charter of Rights and Freedoms and the political leaders who shepherded its adoption, a well-drafted constitutional bill of rights is only part of the puzzle. You need an independent judiciary able and willing to enforce those rights.

Consider that the bill of rights in Russia’s constitution is actually a well-written, rights-affirming document. It purports to guarantee fundamental rights and freedoms, including free speech and rights of due process. Yet, human rights organizations and Russian dissidents will tell you that those rights are illusory in Vladimir Putin’s Russia, as judges are powerless to disagree with that country’s powerful president and thus unable to protect individual rights.

The same has been true in countless autocratic regimes throughout history. A constitution is worth only the parchment it is written on unless you have judges willing to uphold it and an executive that respects the judiciary’s authority. Judicial independence is the oxygen that enables our constitutional rights and freedoms to breathe.

Does Doug Ford’s rhetoric mean that we are becoming Russia? No. Constitutional democracies do not die overnight. But democratic erosion does happen gradually. And once that erosion occurs, it is difficult to undo.

The United States, whatever its imperfections, once provided a robust example of a system with checks and balances between its elected branches of government and the judiciary. Now, we are witnessing a unitary government where the presidency, Congress, and even the courts are increasingly under the control of one man, with few meaningful checks on abuses of power.

Donald Trump speaks disdainfully of judges who have ruled against him or his causes. He urges his MAGA supporters to see judges who disagree with him as their political enemies. His administration muses openly about defying court orders they don’t like, and shockingly, have now repeatedly done so. According to a recent analysis from the Washington Post, in 165 court orders filed against the Trump administration, the administration disobeyed court orders in 57 cases (approximately 34 per cent). This is unprecedented in U.S. history. And it is antithetical to a functioning constitutional democracy, where rule of law means that the government must comply with court orders.

If it can happen in the United States – the birthplace of modern constitutional democracy – it can happen anywhere.

Mr. Trump’s contemptuous rhetoric about judges began long before his administration began openly defying court orders. Although Mr. Ford is not the fan he once was of the American President, his rhetoric about the judiciary matches that of Mr. Trump. Canadians must understand that this is dangerous and unacceptable.

We all understand that politics is politics and that politicians need to play to their base. But certain things should be beyond the vicissitudes of petty politics. Mr. Ford, as Premier, should be cultivating respect for our most sacred democratic institutions – not denigrating them.