Canadians rightly respect their courts. Such respect is foundational to public trust in our institutions and confidence that disputes are resolved fairly. Yet, confidence in the justice system is starting to slip , particularly at the appellate and Supreme Court levels, where decisions increasingly divide Canadians along political lines.

This is not a welcome development.

The central problem is the expansion of the judicial role under the . The — properly interpreted — can be a valuable contribution because it provides a roster of individual rights that should exist beyond the reach of momentary frenzies of elected majorities. Those rights are legal rights and should be interpreted by the judiciary as such.

But the judiciary’s reliance on the “living tree” doctrine has allowed judges

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