Smith and Ford vs The Judges

May 30, 2026 , Brooke Jeffrey , Leave a comment

The United States is currently burdened with a president who is demonstrably immoral, corrupt and contemptuous of political conventions. Worse still, he has no regard for Congress, the rule of law, judicial independence or the sanctity of the constitution.

Most Canadians have watched in shock and horror as Donald Trump has dismantled or ignored these and other basic pillars of democracy. Yet many of these same Canadians appear much less concerned about similar attacks by the premiers of Ontario and Alberta on two of these fundamental democratic principles, judicial independence and the rule of law. This is especially concerning since the disdain Doug Ford and Danielle Smith have shown for an independent judiciary and, by extension, the rule of law, is not only unprecedented but is damaging public trust in government as a whole.

The enmity between the two premiers and the judiciary is not some sort of partisan battle over policies, as both premiers would have you believe. The Ontario premier has even gone so far as to describe judicial independence as “a joke” because of what he claims are partisan appointments.[i] The premiers have implied that judges appointed by the federal government are chosen specifically for their views and perhaps their party affiliations.

In reality, as numerous legal experts and academics have repeatedly pointed out, the process to select judges is impartial and conducted at arms’-length to avoid this very accusation. At the level of the Supreme Court, an independent advisory board makes recommendations for those appointments to the prime minister, who must choose from those individuals recommended. A similar situation exists for appointments to the highest level of provincial courts, known as superior courts, where judges are also federal appointees. Although an Alberta official has claimed that the province’s superior courts are decided by a federal judicial advisory committee that includes “only” one Alberta government nominee and three nominees from the federal government, he neglected to mention that the other members of the advisory committee represent the Law Society of Alberta, the Alberta chief justice and the Canadian Bar Association.

Interestingly, none other than the president of the Criminal Lawyers Association of Ontario was one of the strongest critics of Ford’s comments about judicial bias, referring to them as dangerous “political rhetoric.” He stressed that, while it is impossible to select individuals who have no views on any subjects, “Judges are restricted in their decision-making by what the law requires them to do. If the law calls for a certain outcome, it doesn’t really matter what their personal views may be on the subject; they’re obliged to follow the law.”[ii]

In fact, it is the suggestions made by Ford and Smith for changes to the existing process that would actually introduce the role of partisanship in appointments. Incredibly, given the current turmoil in the American judicial system, Ford has recently suggested that Canada should adopt the American model and elect judges.[iii] He has also appointed two of his government’s former political staffers to the committee that selects provincial judges, declaring he wants “like-minded people, not Liberals or New Democrats” or “bleeding hearts” to serve as provincial judges.[iv]

Alberta’s Smith has also denounced “unelected” judges. Worse still, Smith has said that as premier she would like to “direct” them on their decisions.[v] In one fit of pique over a judicial decision she did not like, Smith wrote a letter to the federal justice minister demanding that her government be given a greater role in the appointments process or she would withdraw provincial funding for the staff, equipment and other support the province pays for the administration of these superior courts. This led Jared Wesley, a political scientist at the University of Alberta, to point out that such action would only hurt ordinary Albertans. In an interview where he criticized her threat to cut off funding, Wesley “expressed concern that cases will be thrown out if they are delayed, which will result in people who would otherwise be eligible for conviction being turned out on the street.”[vi] His view was shared by Shawn King, president of the Criminal Trial Lawyers Association of Alberta, who said if Smith actually followed through on her ultimatum “the already-stressed justice system will implode.”[vii]

In reality, however, the last thing this dispute is about is partisanship, or what Ford has referred to as “ideology”. What both premiers really mean is that they don’t like decisions which prevent them from doing what they want, regardless of whether it is illegal or unconstitutional. The proof of their attitude is exemplified by the fact that the two of them have now invoked the notwithstanding clause of the constitution a total of seven times in the past five years.[viii] (Section 33, the so-called “nuclear option,” was never intended for this kind of practice, and basically lay dormant for forty years.) Many experts have decried this sudden reliance on section 33 as leading to the ‘normalization’ of the clause’s use. Others have lamented that few Canadians appear to be outraged or even cognizant of the increasing violation of their Charter rights.[ix] Moreover, on occasion the two premiers have actually invoked this clause before an unfavourable judicial ruling could be made, on the clear assumption that their proposed legislation would indeed be found unconstitutional.

Both premiers have also ignored the longstanding convention that politicians do not criticize judicial decisions, as this too is seen as a serious violation of the concept of judicial independence. Yet Smith and Ford have ignored this convention innumerable times. They have suggested some judges are either incompetent or “out to lunch” and described some rulings as “ridiculous” and “undemocratic.”[x] Ford in in particular has gone after specific judges personally, for example by saying, after a ruling he disliked on encampments, “I wish I could get that guy’s address. I’ll send 15 encampments to his backyard.”[xi]

Then there is the inconvenient fact that many of the comments made by the two premiers about specific court decisions are simply inaccurate or misleading. Take, for example, Doug Ford’s recent tirade over the judicial decision preventing the region of Waterloo from evicting the occupants of an encampment. He suggested this “cockamamie” and “ridiculous” decision was inexplicable, and that it would foolishly put the interests of 30 unhoused individuals ahead of those of “millions and millions of riders” (a dubious claim in itself) who would benefit from the region’s planned construction of a massive transit hub on the encampment site. But he failed to mention that the region had already tried to shut down the encampment for this same reason in 2022, and a judicial ruling at that time had said that the eviction could go ahead if the occupants were provided with an alternative place to live. Four years later this still has not happened. Hardly surprising, then, that the judgement rendered by Justice Michael Gibson on May 21, 2026, once again stated that the region must first house everyone in the encampment. But this time Justice Gibson even offered an alternative solution to actual housing, namely “that the region create a tenting protocol that would allow people to put up tents on some regional properties.” [xii]

Ford has unleashed a similar rant about a judicial decision that has temporarily prevented him from removing bike lanes in Toronto. (“We get democratically elected… why should they be allowed to overrule us? … Don’t these judges have anything better to do than worry about if we’re taking out bike lanes?”)[xiii] In this case the judge issued a stay while he considered the constitutionality of the matter. But Justice Paul Schabas also noted that , while the province suggested removing the lanes would ease traffic congestion, this is not an urgent matter since “there is evidence that their removal would have little or no impact on the professed objectives stated by the minister of transportation.”[xiv]

Smith’s fury at a judge ruling her attempts at a referendum on separation were unconstitutional led her to vow “We are not going to defer to unelected judges who do not have democratic accountability on their side.” She then re-wrote provincial legislation removing the requirement that referendum questions be constitutional.[xv]

In an extraordinary move, sparked by the extraordinary criticism of them by the two premiers, judges in Alberta and Ontario have responded by publishing open letters defending the integrity of the judicial system and reinforcing the necessary independence of the courts, noting that “democracy only functions when all three branches of government operate independently and respect each other’s role.”

The threat posed by the two premiers to the credibility of individual judges and the integrity of the judicial system has been seen as so significant that almost everyone else involved in the justice system has also taken up the cause of defending the sanctity of judicial rulings and judicial independence. Political scientist Jared Wesley has warned that it is the premiers’ attacks, not the judges, that are threatening democracy. “We’re rapidly shifting out of the realm of liberal democracy and pluralism and towards something else. And I don’t think Albertans quite appreciate how quickly that can happen.” [xvi]

Despite these interventions defending judicial independence there is considerable evidence that they are having little impact. On the contrary, it is Smith and Ford who are making an impression, leaving many Canadians either confused or skeptical of the system. A recent Angus Reid poll reveals a deteriorating situation and dire warning signs. Fully 36% of Canadians believe judges are appointed due to their political leanings and another 29% do not know if this is the case. Only 65% of Canadians believe the law, rather than politics, is the primary consideration in Supreme Court decisions. Only 49% of Canadians have “complete” or “a lot of” confidence in the Supreme Court, a figure which could only be seen as reassuring if juxtaposed against the American response of 31%. [xvii]

In this context, the eventual Supreme Court ruling on a challenge to Quebec’ Bill 21 (the so-called “secularism” legislation limiting the wearing of religious symbols) could prove a turning point. Virtually all of those involved agree that the bill is indeed unconstitutional and violates several Charter rights, but the Court cannot overturn it because of the province’s pre-emptive use of section 33.[xviii] However the federal government and a record number of other intervenors have asked the Court to consider whether the use of section 33 can be limited. More importantly, they have argued the Court may still issue a declaratory decision indicating which Charter rights have been violated, even if section 33 prevents the Court from overturning the legislation. If the Court agrees, many see this as a potential wake up call for citizens, one that could result in electoral consequences for provincial governments that take advantage of the clause, as originally anticipated by the framers of the Charter.

In a similar vein, many commentators have praised the educational efforts of the Supreme Court under the direction of Chief Justice Richard Wagner, who has promoted public legal education, emphasizing that open communication and citizen understanding of the role of the courts are crucial for a healthy democracy. He routinely urges citizens to read judgments directly to avoid sensationalized reporting and advocates for mandatory, ongoing education of judges via the National Judicial Institute. His other educational initiatives have included groundbreaking regional hearings, in which the Supreme Court travels outside of Ottawa to hear cases and host civic events in local communities. Wagner also holds annual news conferences and routinely speaks at legal conferences. At one recent session, he, too, cautioned that judicial independence and the rule of law is under threat across western democracies and “no country is immune.”[xix] With some 45% of Canadians unsure as to whether judges may hold another job or run a business while sitting on the bench, fully 61% unaware that judicial terms are lengthy to prevent individual judges from being vulnerable to pressure from the government that appoints them, and some 31% unable to identify a single Supreme Court judge from a list containing three correct names and three decoys, it would appear that Chief Justice Wagner has his work cut out for him.[xx]

[i] https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-judges-bail-reform-1.7522701

[ii] https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-judges-bail-reform-1.7522701

[iii] https://www.cp24.com/news/canada/2026/02/04/justice-minister-defends-judicial-appointment-process-after-alberta-funding-threat/

[iv] https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-judges-bail-reform-1.7522701

[v] https://www.ctvnews.ca/edmonton/article/alberta-judges-urge-respect-after-premier-smith-said-she-wants-to-direct-them/

[vi] https://www.cp24.com/news/canada/2026/02/04/justice-minister-defends-judicial-appointment-process-after-alberta-funding-threat/

[vii] https://www.cp24.com/news/canada/2026/02/04/justice-minister-defends-judicial-appointment-process-after-alberta-funding-threat/

[viii] https://www.cbc.ca/news/canada/nothwithstanding-clause-taboo-premiers-9.6992441

[ix] https://www.cbc.ca/news/canada/nothwithstanding-clause-taboo-premiers-9.6992441

[x] https://edmontonjournal.com/opinion/columnists/opinion-smith-may-not-like-ruling-on-separatist-petition-but-its-still-democratic

[xi] https://www.cbc.ca/news/canada/kitchener-waterloo/premier-doug-ford-comment-kitchener-encampment-ruling-9.7208836

[xii] https://www.cbc.ca/news/canada/kitchener-waterloo/premier-doug-ford-comment-kitchener-encampment-ruling-9.7208836