Political attacks on Canadian judges must stop

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Adam Dodek is a professor of constitutional law at the University of Ottawa and the author of Constitutional Challengers: The Heroes, Villains, and Crusaders Behind Canada’s Biggest Cases.

Increasingly, politicians across the country are taking aim at judges. This is a dangerous trend that has crept across the border from Trump’s America. It should concern all Canadians because it threatens to erode respect for the rule of law in this country.

I’ve been following such events for three decades and I cannot remember a time when attacks on judges were so frequent and faced such little blowback.

Recently, Ontario Premier Doug Ford has put judges in his crosshairs on at least three occasions. On a Friday afternoon last month, Mr. Ford announced to great fanfare that he had instructed Attorney-General Doug Downey to bring an injunction to stop the annual Al-Quds rally in Toronto. This yearly hate-fest had long attracted controversy, and Mr. Ford had promised to take action against it for years.

Legal experts knew that the emergency injunction had no chance of success. It was not an emergency and the government’s evidence was embarrassingly thin. The event was scheduled long ago, and the government had no answer as why it had waited until the morning of the rally to show up in court. To the surprise of no one in the know, the judge rejected the government’s claims.

Al-Quds Day rally in Toronto goes ahead after judge dismisses Ontario’s request to block it

Mr. Ford responded on X by expressing his “extreme” disappointment with the court’s refusal to stop the event and he derided the judge’s invocation of the Canadian Charter of Rights and Freedoms. The Premier made no mention of the right to freedom of expression.

Of course, the judge did not respond to Mr. Ford’s baiting. Judges are not politicians and they are expected to remain above the political fray even if they are dragged into the political mud. This makes them easy targets for political bullies.

This is perhaps why Mr. Ford then demanded that a different judge apologize for comments made about police in a high-profile criminal trial. If Mr. Ford (or anyone else) thinks that the judge acted inappropriately, they should follow the process established by law and make a complaint to the Canadian Judicial Council.

But it is Mr. Ford’s latest attack that is the most dangerous. He has suggested that bail hearings be livestreamed. It is not clear how that could be possible, because the Criminal Code requires a judge to impose a publication ban at the accused’s request, precisely to protect the presumption of innocence to which anyone charged with an offence is entitled.

Bail hearings are short and not particularly interesting. The only purpose in livestreaming them would be to intimidate judges and/or undermine the presumption of innocence.

But attacks on judges are in no way restricted to Ontario or to politicians on the right.

In B.C., Premier David Eby has accused judges of imperiling the province’s economy because of their decisions interpreting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). He would have been better off to look in the mirror since he was a member of the NDP government that enacted the Declaration of the Rights of Indigenous Peoples Act.

In fact, Mr. Eby, a lawyer, was the attorney-general at the time and it was his responsibility to advise the cabinet about the legal implications of the law. Either he was remiss in doing so or the government elected to ignore the risks in enacting UNDRIP into B.C. law. Either way, the blame lies with elected representatives, not with the courts.

Next door, in Alberta, Premier Danielle Smith seems to relish in using the judiciary as her populist punching bag. She seems intent on undermining the courts’ constitutional role in interpreting the Canadian Charter of Rights and Freedoms. That same Constitution was duly enacted by the people’s democratic representatives across the country – including Alberta’s – and the courts were entrusted with the responsibility and the duty to apply it.

This practice must stop. Its purpose is clear: to undermine the legitimacy of the courts and to make things easier for elected officials. But exercising power over citizens shouldn’t be easy and it shouldn’t be free of consequences. Courts exist precisely to put the brakes on elected officials who go too far and stray beyond the law. We need these judges. And they need our backing.