Canada prides itself on being a stable parliamentary democracy governed by the rule of law. Courts are respected, judges are independent, and constitutional rights are protected. All of this is true and essential.
But there is a question Canadians are increasingly failing to ask, even as its consequences grow more visible:
At what point does judicial review become judicial rule?
This is not a partisan concern, nor an attack on judges. It is a structural question about democratic accountability in a system where lawmakers are elected, governments are responsible to Parliament, and courts are deliberately unelected.
Yet in recent years, Canadian courts have moved beyond interpreting law toward shaping policy outcomes, often with real fiscal, administrative, and social consequences. This shift has occurred quietly, incrementally, and largely without sustained public debate.
That silence is the real danger.
What Courts Are Meant to Do in Canada
Canada is not a constitutional republic with elected judges. It is a parliamentary democracy rooted in legislative supremacy, constrained but not governed by constitutional limits.
Courts exist to:
- Interpret legislation passed by Parliament and provincial legislatures
- Review laws for constitutional compliance, particularly under the Charter
- Protect individuals from unlawful or arbitrary state action
Judicial independence is essential to these functions. But independence does not confer policy authority.
Courts are not designed to:
- balance national or provincial budgets amid inflation and rising debt
- allocate scarce public resources across healthcare, infrastructure, and immigration systems
- manage regulatory backlogs or settlement capacity
- weigh competing policy priorities with long-term fiscal consequences
Those are inherently political judgments. In a democracy, such trade-offs must be made by those who answer to voters.
From Constitutional Review to Policy Direction
The line is crossed when courts do more than determine whether a law is permissible and begin directing how governments must govern.
This drift often appears in subtle but powerful ways:
- Laws are invalidated and suspended, leaving governments in legal limbo
- Legislatures are given court-imposed timelines to redesign complex policy frameworks
- Acceptable policy options are narrowed by judicial reasoning
- Administrative decisions are repeatedly sent back for reconsideration
At that point, the court is no longer merely reviewing constitutionality. It is reshaping policy space without electoral accountability and without responsibility for outcomes.
A Recent Illustration: The Durmus Refugee Case
This democratic drift is not theoretical. It is unfolding in real time.
In the Durmus refugee case, the Refugee Protection Division (RPD) ruled that the claimant’s refugee status had ceased due to “reavailment” of protection from their country of origin. The Federal Court later quashed that decision—not on constitutional grounds, but on the basis that the RPD’s reasoning was inadequate.
On its face, the ruling appears narrow and procedural. Its consequences are not.
By ordering a fresh review, the court compelled the federal government to reallocate administrative resources, reopen the case, and potentially alter an immigration outcome—without the court bearing any responsibility for the fiscal, operational, or downstream settlement impacts of that decision.
Here, the court did not merely assess legality. It directed a redo, intervening in how immigration policy is applied and prioritized. As reported in the National Post on January 13, 2026, such remands are increasingly common, contributing to backlogs, uncertainty, and inconsistent outcomes in a system already under strain.
While rulings like Durmus undeniably promote procedural fairness, especially vital for vulnerable refugee claimants, they also illustrate the broader tension. Judicial correction, case by case, can compel governments to focus on court-driven fixes rather than on clear legislative standards that would provide predictability and accountability across the system.
This is authority exercised without accountability: courts shape outcomes and priorities, while elected governments absorb the cost, capacity strain, and political consequences.
Real-World Illustrations of a Broader Pattern
The Durmus case is not isolated.
In 2025, an Ontario court blocked the province from removing designated bike lanes, effectively intervening in municipal infrastructure and transportation policy. Regardless of one’s view on bike lanes, the ruling narrowed policy options and imposed administrative constraints traditionally reserved for elected officials.
In 2023, the Supreme Court struck down large portions of the federal Impact Assessment Act as unconstitutional overreach. While welcomed by some on federalism grounds, critics noted the irony: in defining how Ottawa must redesign its regulatory framework, the Court itself ventured deeply into policy architecture, again exercising authority without accountability.
Earlier still, in Carter v. Canada (2015), the Supreme Court not only invalidated the Criminal Code prohibition on assisted dying but imposed a specific timeline for Parliament to enact new legislation. This moved the Court beyond constitutional judgment into active policy direction on one of the most sensitive moral issues in Canadian life.
Different cases. Same structural effect.
The Democratic Accountability Gap
Democracy depends on a simple principle: those who make decisions must answer to the people affected by them.
In Canada:
- MPs can be voted out
- Ministers can be questioned or dismissed
- Governments can fall
Judges cannot and should not be subject to political retaliation. But when courts assume policy-shaping roles, they wield power without reciprocal accountability.
The effects ripple outward. Immigration decisions, for example, do not end in Ottawa. Provinces like Ontario bear responsibility for settlement services, housing pressures, healthcare access, and social integration. Court-ordered remands can strain local systems that had no role in the original decision and no ability to influence the judicial outcome.
Charter Rights and the Expansion of Mandates
The Charter of Rights and Freedoms was designed primarily to protect negative rights—freedom from unjust state interference. Increasingly, Charter interpretation has expanded toward positive entitlements, requiring governments to act, fund, regulate, or redesign systems.
Supporters argue this protects vulnerable groups when politics fails. That concern is legitimate.
But positive rights are not cost-free. They require spending choices, prioritization decisions, and trade-offs between equally compelling needs. When courts constitutionalize these choices, they risk prioritizing judicial mandates over electoral ones, quietly reshaping policy without public consent.
The Long-Term Risks
If left unexamined, this drift carries serious consequences:
- Erosion of Parliamentary Sovereignty — not by law, but by practice
- Policy Paralysis — governments legislate defensively, for courts rather than citizens
- Public Distrust — courts begin to appear ideological rather than neutral
- Democratic Hollowing-Out — elections matter less when decisions migrate to courtrooms
Restoring Democratic Lane Discipline
Canada does not need weaker courts. It needs properly bounded courts.
That means:
- Courts interpret and enforce constitutional limits
- Legislatures write clear laws
- Governments govern within those laws
- Voters judge the results
Parliament is not powerless. In response to cases like Durmus, it could clarify reavailment and cessation standards in legislation, reducing ambiguity that invites judicial micromanagement and restoring predictability for applicants, administrators, and provinces alike.
This would reaffirm the proper democratic sequence: law first, policy next, courts last.
The Question Canadians Must Finally Ask
Who governs Canada?
If the answer is Parliament, then Parliament must be allowed to govern subject to constitutional limits, but free from judicial micromanagement.
If the answer is courts, then Canadians deserve an honest debate about democratic legitimacy.
Silence is not neutrality. Silence is consent.
And consent, in a democracy, should never be assumed.
Timeline Graphic Text
The Durmus Refugee Case — From Decision to Remand
Stage 1 — Refugee Status Granted: Claimant recognized as a refugee under Canadian law.
Stage 2 — RPD Cessation Decision: Refugee Protection Division rules status has ceased due to “reavailment” of protection from the country of origin.
Stage 3 — Federal Court Review: Court finds RPD reasoning inadequate (procedural flaw, not constitutional breach).
Stage 4 — Decision Quashed: RPD ruling set aside.
Stage 5 — Court-Ordered Redo: Government required to reopen the case, reassign resources, and conduct a fresh review.
Stage 6 — Systemic Impact: Administrative delay, increased backlog, fiscal and settlement implications borne by governments—not courts.
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Thanks for your thoughts, comments and opinions, will be in touch. Peter Clarke