Lawyers Financial
Civil Litigation, Constitutional

Courts have authority to 'make law'

Judges have the authority to “make law” as a form of correcting Parliament and interpreting the Constitution, Ottawa family lawyer and civil litigator Timothy N. Sullivan writes in a letter to the Globe and Mail.

“When courts go too far, Parliament can correct that with legislation and the constitutional override,” writes Sullivan, principal of SullivanLaw. “Conversely, when Parliament steps too far off base, being vague or contrary to the Constitution, courts can correct that with interpretive conventions. Sometimes that means ‘making law.’”

He was responding to another letter writer who said comments from newly appointed Supreme Court Justice Malcolm Rowe, referring to how “judges ordinarily make law, rather than simply applying it,” was an opinion that is both “profoundly undemocratic and deeply disturbing.”

Sullivan, who wrote about judicial decision-making as part of his Master’s thesis in political science, disputes those comments.

“It’s not entirely correct to say we live in a democracy, so judges should refrain from making law,” he writes. “We live in a ‘liberal democracy.’ Courts are the repository of liberalism, or liberty, while Parliament and the legislatures are the arena for democracy.”

In an interview with, Sullivan says the effect of judges interpreting statutes may be making law. “But they’re not making a statute, they’re taking a statute and deciding it has to be interpreted in a certain way.”

For example, contracts are binding because of common law, as enforced by the courts. But there is no such thing as the Contracts Act.

“Judges put flesh on the bones of statutes and Constitutional law,” he says, adding judicial interpretation allows the minority to contest any laws made by a majority of political representatives. “Judges don’t go out looking for decisions to make, the cases come to them.”

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