Retired Supreme Court Justice Jack Major says Canadian courts have accumulated too much power and are increasingly intruding into matters that should be decided by elected lawmakers.Major, 95, issued the warning in the foreword to a new essay published by the Macdonald-Laurier Institute, arguing the country has entered an era of “judicial supremacy and court overreach.”“The trend of court overreach is regrettable as it creates unnecessary conflict between the courts and Parliament,” Major wrote.“The trend also erodes the role and duty of legislatures to enact legislation that accords with and protects Charter rights in a timely manner.”The essay, titled Unseating Responsible Government, argues courts have moved far beyond interpreting laws and are now actively shaping public policy across a wide range of contentious political issues.Authors wrote that judges now intervene in matters involving drug addiction policy, euthanasia, health-care delivery, public space regulations, climate targets, protections for children with gender dysphoria and even municipal bike lane disputes.“The typical course of adjudication in these cases consists in the judicial invalidation of some policy, disfavoured by the claimant activist group, on the grounds that the government has failed to adduce sufficient empirical evidence in favour of its approach,” the report stated..According to the Institute, this growing judicial influence has gradually shifted political authority away from legislatures and toward the courts.“Legislatures continue to pass laws, but they do so in an environment where the boundaries of acceptable policy are increasingly determined through litigation,” the authors wrote.The essay argued this constitutional shift did not happen through formal legal reform, but instead developed incrementally through court rulings that expanded interpretations of Charter rights and judicial authority.“This shift has not occurred through formal amendment or explicit redesign,” the report stated. “Instead it has emerged gradually through judicial decisions that have redefined both the meaning of rights and the proper role of courts in public life.”The paper also cited the landmark 1985 Supreme Court ruling in R. v. Big M Drug Mart Ltd., which struck down the federal Lord’s Day Act that mandated Sunday retail closures.The Institute noted the case centred on a Calgary retailer challenging Christian-based restrictions, yet the court justified its decision partly on the basis that the law conflicted with Canada’s multicultural heritage.Authors argued such rulings illustrate how courts increasingly rely on broader social and political interpretations rather than narrow legal reasoning.“It appears unlikely that Canadian courts will, by their own impetus, forestall or reverse the dramatic expansion of judicial power that has taken place,” the essay concluded.“It is apparent the courts are not bound by the constraints of precedent.”
