A More Modest Judiciary

Author: Tim Platnich

Date First Published: August 16, 2025

Republished September 4, 2025 with substantial revisions.

In this post I will argue that judges should decline jurisdiction where parties are asking them to make policy. The reasons they should decline jurisdiction are based on the following:

• the preservation of democracy;

• recognition of the separation of powers between the legislative, executive and judicial branches of government;

• the re-establishment of the supremacy of legislative assemblies in matters of policy;

• the recognition that the judicial branch is ill-equipped for making policy decisions;

• the recognition that judges are being used to circumvent the will of the people as expressed through legislative assemblies;

• the recognition that in a parliamentary democracy, sovereignty lies with the people, not the judiciary.

Since the Charter of Rights and Freedoms came into effect in 1982, there has been an evolution of judicial challenges to legislation. What started as a sprinkle has grown to the point of a deluge of challenges. Legislation that takes a controversial policy position that someone doesn't like is immediately faced with a constitutional challenge. Often the legislation is challenged before any effects from the legislation are actually realized. By this I mean, before any damage to anyone resulting from an alleged infringement of rights has ever occurred. Indeed, injunctions are sought to stop the legislation from even coming into force. It's to the point that judges now effectively vet all legislation in controversial areas which areas are typically on the progressive spectrum.

Historically, the courts have recognized limits to their jurisdiction in many different contexts. They would not hear cases that were 'res judicata'; or cases that were before another court; or cases that were moot; or cases that involved actions or relief unknown to the law; or cases that involved areas of executive discretion such as the conferring of Orders of Canada; or cases concerning 'political questions'.

Where Charter challenges are concerned, it seems that all bets are off. Anyone, at any time, on any Charter ground that comes to their imagination, is able to challenge legislation literally the day it is proclaimed. The worse part is that judges are complicit in this process. It needn't be so. It shouldn't be so.

I submit that the courts should decline jurisdiction where they are being asked to strike down legislative policy in favour of policy being advanced by parties through litigation. Judges have several tools for doing this which are canvassed below.

The first tool is justiciability or perhaps, better stated as non-justiciability. The concept recognizes that some issues are not 'justiciable' and should not be determined by the courts. For example, the courts have recognized that some areas of executive discretion are off-limits for judicial review such as the conferring of Orders of Canada. Clearly, justiciability applies in the context of the exercise of certain executive discretion, but here I will focus on justiciability as it relates to applications to strike down legislation on Charter grounds. Justiciability has also been applied in cases involving 'political questions' where courts have declined jurisdiction.

Another tool in the judicial toolbox concerns 'standing'. Courts can control the cases they hear by considering whether or not the Plaintiffs or Applicants, as the situation may be, have proper standing to bring an action. One question that arises concerning standing, is whether the Plaintiff/Applicant has actually been harmed in some way. Are they entitled to a judicial remedy if they prove their case? Let's say the Plaintiff is an activist group of some kind. Is this group a proper party? What harm has it suffered? Has its Charter rights been infringed? What purpose is served by allowing activist parties to take pot-shots at every piece of legislation passed by a legislature? Traditionally, at common law, a claimant needed to show a breach of the claimant's right and entitlement to a remedy for such breach. It was fundamental that there was: 1) a claimant; 2) that had experienced a breach of a recognized right; and 3) that the breach of that right gave rise to a remedy in favour of that claimant. A purported claimant did not generally have standing to bring an action for the alleged breach, or potential breach, of a right of others. A could not sue B for a for an alleged breach of right owed by B to C. This was particularly so were the alleged breach was only hypothetical. A could not sue B for a potential, or hypothetical breach of right owed by B to C. For example, a non-party to a contract (A) could not sue B for a breach of contract by B in a contract between B and C. This makes perfect sense. Why should A have standing to enforce a contract that it was not a party to? Image if A was some action group, say called 'The Action Committee Against Contract Breakers" that could go around suing anyone that they through had breached a contract, all in the name of the cause of making people live up to their contractual commitments!

Other tools judges could use to stay out of policy litigation are orders for security for costs and/or orders requiring an undertaking, backed by security, from a claimant to pay costs if unsuccessful in challenging legislation. In non-Charter litigation, representative parties without assets, are required to post security for costs as a condition of continuing litigation. Also, parties seeking interlocutory injunctions are required to give undertakings to pay damages that may be caused to the defendant by the injunction, backed by security in appropriate cases, as a condition of receiving an injunction. These procedural rules, in the ordinary course, prevent abuse of the judicial system by representative parties generally, and specifically where they are seeking extra-ordinary relief like interim injunctions. Are these rules being applied when representative parties are challenging legislation? For reasons that seem stretched, the courts appear willing to forego these procedural rules in allowing activists to challenge legislation.

The point is that Courts have historically recognized limits to their jurisdiction and have crafted rules to ensure their jurisdiction is not abused by opportunistic parties.

There is much debate about what limits to judicial jurisdiction should exist. Here I will argue that the limits should be set so that Canada is not transformed from a democracy into a form of aristocracy - rule over the many by the unelected and privileged few. Our system of government is not one where the people are ruled by philosopher kings and guardians. Even Plato came to reject this form of government, though he first proposed it, recognizing that one person's philosopher king is another person's tyrant. Further, public policy should not be driven by activist litigation.

In a democracy the rules of law are made by the people through their elected representatives. The elected representatives form legislative assemblies: Parliament, at the federal level, and Provincial legislatures. When it comes to rule making, the legislative assemblies are supreme. In the British context, the expression is 'the supremacy of Parliament'. The supremacy of Parliament is a common law concept dating back to at least the Stuarts and probably earlier to the Tudors.

Because Canada is a constitutional democracy, there are limits to the supremacy of our legislative assemblies. The laws they make must be within the limits set by our Constitution which includes the Constitution Act of 1867 (as amended) and the Canada Act of 1982, which includes, by Schedule, the Constitution Act and the Charter of Rights and Freedoms. For example, Parliament's jurisdiction is limited to matters under federal jurisdiction as set out primarily in s. 92 of the Act of 1867. The courts rightly have jurisdiction to rule, in a proper case, on whether legislation passed by Parliament is within its Constitutional powers. A recent example of this is the decision of the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act.References re Greenhouse Gas Pollution Pricing Act

Matters of legislative jurisdiction become murky in the context of Charter rights under the Canadian Charter of Rights and Freedoms for several reasons. First, Charter rights are not absolute. Section 1 says they are 'subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. Further, and more critically for my analysis is the so named 'notwithstanding clause' under section 33 which provides that 'Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in sections 2 or sections 7-15 of this Charter.'

The intent of section 33 was to re-assert the supremacy of legislative assemblies by preventing the courts from frustrating legislation through the unbridled application of Charter rights. Parliament or a Provincial legislature can legislate without worrying about the results of judicial challenges when they invoke s. 33. Indeed, although the matter remains up for debate in the Courts, legislative assemblies can pre-empt judicial scrutiny of legislation by the Courts that my be challenged on Charter grounds. But for the inclusion of s. 33, we would have no Charter of Rights. This section was critical to an accord being reached that allowed for the Charter of Rights.

It is in the context of Charter challenges that I will focus my argument about judicial modesty.

Charter rights litigation has become the battleground for policy disputes in place of the floors of our legislative assemblies. This should not be so. It is not for the Courts to determine public policy that is clearly within the domain of legislative jurisdiction. Judges should not usurp this jurisdiction at the urging of various interest groups and activists. In our parliamentary democratic tradition, the people are sovereign acting through their representative assemblies. Unelected judges are not the sovereign.

When an action comes before a judge where the claimants are seeking to strike down legislation, I submit the proper approach should be along the following lines:

1. the Court should ask: is the pith and substance of the litigation a policy issue or, to use common legal parlance, a political question? In considering the pith and substance the Court might consider the genesis of the legislation and whether it reflects a party's platform when elected. In other words, did the public, through the election process, express its will on the policy issue. Further, the Court should consider the whole legislative history of the legislation in assessing the policies in play. If the pith and substance of the litigation is policy, the court should be strongly inclined to decline jurisdiction. Otherwise, the Court is simply usurping the role of the legislature and/or is being a pawn in a policy struggle between elected governments and disgruntled unelected opposition groups.

2. the Court should consider: who are the claimants? Are the claimants political activists directly pursuing or using front-persons to pursue policy through the Courts when unsuccessful at the polls or is there a legitimate dispute between real parties whose direct rights are being affected. At or about the time of the War of the Roses in England, champerty and maintenance was being used by nobles to undermine and corrupt the legal process. Nobles would use their wealth and influence to support parties and causes with a view to furthering their own ends contrary to the law. Ultimately champerty and maintenance was banned by legislation. Lessons of the past should be remembered. Are well financed activist groups engaging in modern day maintenance? Scrutiny of the claimants may very well lead the Court to rightly conclude that the pith and substance of the litigation is a policy issue.

3. the Court should be cognizant of how many parties are seeking to intervene and what is the nature and quality of the proposed interveners. The existence of any interveners, let alone a large number of them, suggests that policy is really at the heart of the litigation. If the proposed interveners are professional intervenors on particular policy matters, that should almost be conclusive evidence that the pith and substance of the litigation is a policy issue.

4. related to point 3 and having regard to the pleadings before the court, the court should ask itself whether the court is the proper decision making body for the policy issues being addressed? In other words, courts should recognize when the litigation concerns a policy issue that issue is better handled through the legislative process in a parliamentary democracy. The Charter of Rights was not intended to replace a democracy with a judicial aristocracy.

   
   

Let's look at a couple of cases to illustrate how the above approach could have been applied, but wasn't.

The first case is that of Cycle Toronto et, al. v. AG of Ontario and Minister of Transportation. This case involved legislation passed by the Ontario Legislature that directed the removal of certain existing bicycle lanes and the restoration of the lanes for motor traffic. The existence, number and location of bike lanes is a political issue and one of policy. There are two camps: the pro-bike lane camp and the anti-bike lane camp. The Ontario Legislature, a majority government, newly elected, made a policy decision. A policy decision that differed from that of the City Council of Toronto. Cycle Toronto, one of the applicants, clearly an activist party on behalf of the pro-bike lane camp, didn't like the policy decision of the Province. It preferred that of the City Council. It argued that removing existing bike lanes was a breach of cyclists' rights to 'life, liberty and security of the person'. The Court, rather than declining jurisdiction on a clear policy issue, found that the charter right was breached and further that the breach was not demonstrably justified in a free and democratic society. Huh! Surely, legislatures have the jurisdiction to determine when, where and how many bike lanes should exist on Ontario roads. Or should we have judges make the decision? Just give the judge a map of Toronto and let her draw in all the bike lanes. Why not? Or, maybe the legislature should just come before the judge, on bended knee, and ask whether a proposed bike lane policy 'would please the court'.

The second case is that of Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity. In this case the legislature of Saskatchewan passed a law providing that if a child under the age of 16 requests to be called by a new gender-related preferred name, that name is not to be used by teachers and employees of the school unless consent is first obtained from the pupil's parent or guardian. The applicant, clearly not a party affected directly by this statutory provision, and clearly an activist organization, sought to have the legislative provision declared invalid by virtue of being in breach of sections 7, 12 and 15 of the Charter. The legislation contained a s. 33 provision stating that the section at issue is declared to operate notwithstanding sections 2, 7 and 15 of the Charter. A King's Bench judge held that the Court could declare whether or not the legislative provisions breached the Charter provisions (and were or were not demonstratively justified) even if ultimately the legislative provisions would remain operative because of s. 33. The Province appealed to the Saskatchewan Court of Appeal arguing that section 33 shielded the legislation from judicial scrutiny. The Court of Appeal held that section 33 didn't have that effect. The Court of Appeal also held that the Court's could decline to make a declaration and referred the matter back to the Court of King's Bench.

I submit that the Court should have declined jurisdiction right from the get go. What is the point of going through all this if in the end the legislation will prevail? The Courts are simply refusing to concede legislative authority without a fight. Clearly the statutory provision at issue is a highly political policy decision. The policy decision was made by a duly elected legislative branch of government. The legislature signalled its supremacy on the point by invoking s. 33. Why allow an activist party, the UR Pride Centre, challenge the policy decision at all? The dissent of Justice Caldwell couldn't say it any better.

In addition to the only Applicant party there were nine intervenors beyond the two intervenor governments.

Although this case raised questions of law concerning s. 33 of the Charter, why bother allowing the courts to get dragged into those questions when at the heart of the matter was a policy issue. The policy issue comes down to whether in these circumstances, parents have a right to consent (or not) if their child requests to be called by a new gender-related preferred name at school. The legislature of Saskatchewan says yes, as a policy decision. The UR Pride Centre doesn't like the policy and is attacking it, not as an affected party, but as an advocate of a policy position.

Courts have a lot of work to do solving real disputes between real parties. Why not leave policy decisions to legislative assemblies passing legislation that is within their jurisdiction? Why not decline to participate in law-fare by disgruntled activist groups? I submit courts should take a hard look at whether actions being presented are truly justiciable and, if not, they should exercise their discretion to decline jurisdiction. Even if justiciable, the courts should use the ordinary rules of procedure to prevent law-fare.

Perhaps the Courts should give legislative assemblies the same degree of deference regarding Charter rights as they give to administrative tribunals like they did in Peterson v. College of Psychologists of Ontario. It's just a thought.