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December 16th 2025

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Other than being the premiers of their respective provinces, David Eby, Danielle Smith, Doug Ford, and Francois Legault don’t have much in common. But when it comes to the apparent benefits of attacking the courts, they’re all on the same political page right now.

Smith’s latest broadside against the judiciary comes as no surprise. She has long positioned herself as an enemy of institutional expertise, whether that’s doctors recommending vaccines or scientists explaining the risks of climate change, and has used the Notwithstanding Clause four times to prevent the courts from being heard on issues ranging from labour rights to transgender identity. Her government even tried to pre-empt a judicial ruling on the constitutionality of a pro-separatist petition, all in an increasingly obvious effort to get that question on the ballot.

To his immense credit, the judge in question was one move ahead of the government. He released his ruling before Smith’s superseding legislation could be proclaimed into law, and while it won’t prevent the Smith government from continuing to lower the bar for separatists in the province, it did allow him to be heard. "Legislating to pre-emptively end this court proceeding disrespects the administration of justice," Court of King’s Bench justice Colin Feasby said in his ruling. "The public is entitled to the fruits of this process that has been conducted largely at their expense so that if they are asked to vote on Alberta independence, they have a tool [the courts] that may help them make sense of the legal dimensions of the secession of Alberta from Canada."

Smith, of course, fired back, depicting the courts as some sort of unelected and unaccountable antagonist sent to do Ottawa’s bidding. “The people have told us through our consultation, through our elections, the kinds of things they want us to do,” she said on her weekly call-in show on Dec. 6, “and then we go and do them, and then the court can override it. …An unelected judge is not synonymous with democracy. Democracy is when elected officials who have to face the electorate every four years get to make decisions. That’s what democracy is.”

Not quite. Democracy is about the rule of law as well as elections that inform our political representation, and anyone who pays even a cursory look at Canadian (or, um, German) history understands the dangers associated with yielding complete control to the will of the majority. As the University of Alberta professor Jared Wesleyargued in a recent piece, Smith’s argument is also inherently un-Conservative. “You can’t say you believe in limited government and then strip power away from the only institution that can tell the government where the limits are,” he writes.

But it’s not just Smith who’s been busy attacking the courts. Earlier this year, Ontario Premier Doug Ford unleashed a screed about his province’s “terrible bleeding-heart” judges and the fact that they kept overruling his government. “Last time I checked there hasn’t been any judges elected. Maybe that’s the problem — we should do what the US does,” he said. That attracted a very unusual rebuke from Ontario’s three chief justices, who released a joint statement reiterating the importance of judicial independence — and perhaps reminding their province’s premier about it. “Judicial independence is a cornerstone of our constitutional democracy,” they said. “An independent judiciary protects the public, not just judicial officials. It means a society governed by the rule of law.”

Quebec premier Francois Legault was similarly rebuked by his province’s bar association when he, too, appeared to question the independence of Quebec’s judiciary. It happened in February of 2024 after a three-judge Court of Appeal panel extended access to Quebec’s daycare system to children of asylum seekers, a decision Legault tried to spin as an anti-Quebec ruling (all three judges are federal appointees) that his main political rival, the Parti Quebecois, somehow endorsed. “It’s the leader of the PQ who is currently, not on his knees but flat on his stomach, in front of the federal government.”

David Eby is just the latest premier to take a swipe at the courts and their rulings. Why their strategy might be good short-term politics but terrible long-term leadership — and why it will be the voters who pay the highest price for it.

The Barreau du Quebec wasn’t having it. “It may be perfectly legitimate to disagree with a court decision, to debate it in public and to use the appeal process provided,” it wrote on social media. “But it is not acceptable to attack the impartiality and independence of the courts by insinuating they could be answerable to a level of government.”

The legal community may look dimly on this sort of anti-judicial rhetoric, but the broader public doesn’t seem to care nearly as much. If anything, they might side with the politicians trying to blame judges for everything from criminal sentencing to constitutional oversight. That seems to be the calculus at work for BC Premier David Eby, who has taken aim at the courts in his province for some of their recent rulings on Indigenous rights. “To face such dramatic, overreaching and unhelpful court decisions as we have seen over the last couple of months, is deeply troubling,” Eby said recently.

Eby, remember, is a former lawyer who is better versed in the importance of the courts and their independence than most of his political colleagues and counterparts. He was British Columbia’s attorney general when the province passed legislation adopting the United Nations Declaration on the Rights of Indigenous Peoples, which committed his government to ensuring that “provincial laws (both existing and future) are consistent with UNDRIP.” And yet, there he was earlier this month sounding an awful lot like Danielle Smith. “[The decision] potentially puts courts in the driver’s seat, instead of British Columbians,” he said at a press conference in Surrey. “It is absolutely crucial that it is British Columbians, through their elected representatives, that remain in control of this process, not the courts.”

It may well be that the courts have overstepped, erred or otherwise created avoidable legal uncertainty in their recent decisions involving mineral rights with the Gitxaała and Ehaattesaht First Nations and title with the Quw’utsun (Cowichan) Nation. We do, of course, have higher courts of appeal, to which the Province of British Columbia has full recourse. But the wheels of justice naturally turn a little more slowly than our elected officials would like, especially leaders at the head of minority governments who are potentially facing a rejuvenated Conservative opposition. Even so, Eby should know better than to make the courts into an enemy of the public.

That Eby chose to do so anyway speaks to the political advantage those sorts of interventions create. But while there may be no political cost attached to the premiers attacking our courts, there is a price for it that we will all have to pay. Every time someone delegitimizes our institutions of law, order and justice, they open the door to their eventual incapacitation or invalidation. We have long treated things like the rule of law and democratic freedom as political givens, as though they appeared on the earth as natural phenomena rather than the result of successive, and successful, political battles. We’d better get ready to start fighting for them again before it’s too late.

December 16th 2025

Lead Columnist