Recent comments by political leaders are the latest examples of rhetoric in Canada that crosses the line from legitimate criticism of court decisions to unfounded attacks on the courts themselves. This troubling trend threatens public confidence in our justice system and puts the rule of law at risk.
Every government, federal and provincial, regardless of political affiliation, eventually faces a court ruling it dislikes. That's because, under our constitution, courts and elected lawmakers have distinct and complementary roles. When they occasionally come into tension, each has a responsibility to avoid statements or actions that damage the other's legitimacy.
In a free society, it is emphatically not the courts' role to simply get out of the government's way. Rather, courts must ensure that laws are followed, including by the government, and that constitutional rights are upheld, regardless of which party is in power.
If a government disagrees with a court decision, it can appeal. If legislators believe the law should be changed, they can amend it – subject always to constitutional limits. If they wish to pursue deeper change, they can even seek constitutional amendments through established democratic processes. What they cannot do is demand that courts defer to their political preference or claim that elected officials alone should define the scope of constitutional rights.
Being elected gives governments the power to change the law, but never the right to stand above it.