The Naïve Belief that Judges Only Uphold the Law

Author: Tim Platnich

Date: January 30, 2026

Alberta Premier Danielle Smith is in the news again. As usual she is being criticized by the media. The current issue is her opinion about the judiciary. Essentially, Premier Smith says that judges need to stay in their lane and leave policy decisions to the elected representatives in the legislature. My, how scandalous!

Kevin Martin, in a piece published in the Calgary Herald on January 29, 2026, took umbrage with Premier Smith's views. He accused her of vilifying the judiciary. He suggests that Smith does not understand that democratic societies consist of three branches of government: the executive, legislative and judicial. This is a disingenuous criticism of Smith. Of course she understands that. What she takes issue with is the border between the legislative and judicial branches of government. She suggests that at times the judiciary is encroaching on the role played by the legislature - the setting of government policy through legislation.

Mr. Martin himself argues that the three branches of government each should wield their power and authority independent of the others. This perhaps shows a lack of understanding how the executive branch (cabinet) and the legislature are co-mingled in our parliamentary system. But he is right that the judiciary should operate independently from both the executive and the legislature. That is, the government should not apply coercion or direct influence against the judiciary in order to influence specific decisions. However, the government can question whether the judiciary is generally stepping outside of the bounds of the judiciary's power and authority and is encroaching on the power and authority of the legislature. If government cannot question this use of judicial power, who can or will?

In fairness to Mr. Martin, he was echoing the Statement made by the Chief Justices of Alberta's three levels of court. In my experience judges do not like criticism. The Statement does not reference Premier Smith's comments directly, but it is clear to everyone that her criticism is what provoked the Statement. In the Statement the judges suggest that they are merely resolving disputes between parties based on the evidence before them. Most often this is true. For example, Party A claims that Party B breached her rights. The court considers the claim. On the evidence before it, did Party B breach Party A's rights? A decision is made and the dispute between the parties is resolved. Another example is where an accused person is charged with a particular criminal offence. The court is to decide whether on the evidence before it, based on the established law, the accused person is guilty or not.

However, these are not the cases of concern. The cases of concern often involve claimants that are activist groups either acting directly or indirectly through nominal individuals. The activist groups have an agenda. They are proponents of various positions and policies. They sue governments who are pursuing different policies through the legislation they enact. The activists were, perhaps, unsuccessful at lobbying the government through the election process. They decide it is easier to convince one judge than it is to convince a majority government consisting of dozens or even hundreds of elected individuals. Through litigation, the activists are asking the court to make policy. Conceivably, as I argue elsewhere, the courts could decline jurisdiction and leave policy to the legislatures. However, more and more courts are inclined to take up the challenge and set policy by striking down legislation. It is this aspect of judicial conduct that Premier Smith is taking issue with.

And this is the rub. When I was in law school, and dinosaurs were still roaming the earth, various professors made no bones about how courts do and should make policy. Law professors are generally a progressive bunch. Indeed they suggested it was naïve to think otherwise. The higher the court, the more policy making was likely and warranted. Leaving aside the Charter of Rights for now, under the common law going back to the first parliaments, parliament was supreme. The role of the courts was to interpret and apply the law. If parliament disagreed with the court's interpretation of the law, parliament could act both in its legislative capacity and, at various points in time, in its judicial capacity as the highest court in the land. Parliament was the supreme lawmaker. Parliament was the sovereign, not the courts. The will of the people was expresssed through parliament, not the courts. Historically, then, the 'power and authority' of the judiciary was for deciding disputes between individuals based on the settled law. It was not for the courts to make new law, and if they did, parliament could override it without any controversy whatsoever.

Progressive thinkers, even before the Charter, took the view that judges interpreting the law should, and invariably did, find an interpretation that fit the judges' view of what the policy of the law should be. When the Charter came into effect, this gave the judges another tool to overrule parliamentary supremacy. Now the Charter was supreme. Fair enough. But what does the Charter say? Who has the last word on that point? In most cases it is the courts but in some cases the legislature can overrule the judges using the notwithstanding clause of the Charter. Premier Smith makes note of this clause and expresses the view that the legislature is within its right to use the clause to re-establish parliamentary (legislative) supremacy.

Where the courts exceed their power and authority and encroach upon legislative power and authority our democratic society becomes effectively an aristocracy or oligarchy. Rule by the few. When I was a bright-eyed law student, I thought this was appropriate. Why not be ruled by smart judges rather than dumb politicians? 34 years of appearing before judges sobered my thinking. The benefit of democracy is that we get to throw the bums out after a few years if we don't like their policies. The problem with judicial law making is that we are stuck with a decision unless and until it is successfully appealed. If the decision is from the Court of Appeal, the chances of getting leave to appeal to the Supreme Court of Canada is extremely small. Even appealing a lower court decision to the Court of Appeal has its difficulties - huge expense and lengthy delay. As a result, the decision of a single judge on a point of policy, based on a Charter interpretation, may persist for decades.

Where judges stray into policy making, Premier Smith is within her right to call them out. This is not judicial interference. Whether it is politically prudent is another matter. Does it undermine the rule of law? Only if you believe the rule of law means the uncritical acceptance of judge made law, even by democratically elected governments.

Another criticism of Premier Smith is her suggestion that maybe the province should have more input in the selection of federally appointed judges. Egad. What a thought! This surely is interference with an independent judiciary. But wait a minute. The federal cabinet appoints judges. Is this interference with an independent judiciary? If not, how could it be interference if the Provincial legislatures had some say in the appointments? Arguably this one-sided appointment process is likely to lead to judicial bias in favour of those that appointed them or at least in favour of the policies of the appointing governing party of the time.

Ted Morton, a former Provincial cabinet minister, wrote a piece for the National Post where he asserts that the courts are using the Charter to gut provincial jurisdiction and centralize Canada. He gives statistics to back up his claim. He points out that all superior Court judges are appointed by the federal government and they have a bias towards federal (Liberal) government policy when the Charter is engaged.

Keep in mind that once judges are appointed it is very difficult to remove them. This is the essence of judicial independence. Surprisingly, this aspect of judicial independence was rather late in coming under the English common law. For many centuries judges were appointed at the pleasure of the Crown.