Will our courts move to a more traditional, less activist role?
Updated: Sep 11
It has been a good week for those of us who long for a return to peace, order and good government (an apparent shrinking minority) in accordance with the long traditions of this nation.
Those of you who continue to read my articles know that I was not pleased that the Supreme Court of Canada reversed our Court of Appeal’s rejection of the tort of intimate partner violence (IPV) in Ahluwalia v. Ahluwalia, 2026 SCC 16. My views did not and do not amount to a denial of the scourge of intimate partner violence nor the urgent need to address the issue. It is based upon the view that issues such as IPV should be addressed by our elected representatives after granular consideration of the problem in debate and committee.
I am somewhat comforted by the recent decision of the Court of Appeal in the bike lanes case Cycle Toronto v. Ontario (Attorney General), 2026 ONCA 582. I am particularly heartened by Justice Grant Huscroft’s comments (he wrote the decision for the unanimous three-member panel) that judges must not involve themselves in matters of legislative policy. “Policy is for politics” (his words not mine). The issue is one that should not have been downloaded to the courts for any reason. It was and is a matter of public policy for our legislature.
Informed commentators have described the decision of our Court of Appeal as a “judicial beatdown” or a “judicial spanking.” Without embracing the hyperbole, I welcome the clear and concise message from the appeals bench. Courts, while often tempted, should leave policy to the elected officials — those chosen by the majority to consider and pass laws to order our society. Respect for our Westminster form of democracy is essential for our courts. Section 7 of our Charter of Rights and Freedoms should not be bent and shaped to address every progressive view circulating in our society.
Continuing this wave of good news (in my view) is the recent report (Toronto Metropolitan University External Review 2025-2026) of former appeal Justice Mary Lou Benotto on the disgrace that is two major incidents involving pro-Palestinian demonstrations and subsequent arrests on or near the campus of TMU (Toronto Metropolitan University). As part of a group that earlier attempted to address concerns on this campus, I found it uplifting to read this report (prepared at the request of TMU) and note several essential findings, including that TMU often failed to consistently and decisively implement university policies to address the conduct that occurred on the campus. Senior employment counsel Howard Levitt has nicely captured the employment law fallout possible from the decision in an article in the National Post on Aug. 19. TMU has struck an implementation committee to address the report. It seems to me that instead of immediately addressing the issues that Justice Benotto highlighted in her report, TMU instead wishes damage control and delay. Stay tuned.
That’s about as much good news as I can take for one week. Please no more. Now it’s wait and see if (a) our courts will move to a more traditional and less activist role and (b) whether TMU will really do something about the problems exposed and confirmed by Justice Benotto. You didn’t ask me for it, but here’s my prediction:
The bike lanes case will be appealed to the SCC (honestly not sure if leave is necessary); and TMU will do nothing, as they have done in the past, to change the culture of that campus.
Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law and a Masters of Law in Constitutional Law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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