In a short piece with Geoff Sigalet, we reflect on the enduring importance of TedMorton and Rainer Knopff’s The Charter Revolution and the Court Party, 25 years after its publication.
The book has aged remarkably well. Indeed, much of it reads as though it were written yesterday, so accurately does it describe our contemporary political and legal landscape.
One of the most important problems it identifies is the conception of rights that the Charter enabled and that our judiciary has subsequently developed. Rights have come to be understood as vast and expansive claims to individual freedom understood as ‘licence,’ extending into ever more domains of human activity. The underlying assumption seems to be that maximizing individual choice and freedom from interference is itself the good that rights are meant to secure. Individuals can therefore make increasingly expansive demands against governments and one another, and when these claims inevitably conflict, courts are called upon to decide which infringements – of which there are inevitably countless, according to this incoherent perspective – are justified.
This is a deeply mistaken understanding of rights.
Rights are not unlimited claims to ‘leave me alone’ solipsistic freedom. They exist to secure particular human goods, and their meaning and limits must be understood in relation to those goods. The right to education, for example, exists to secure the intellectual and moral formation of young people, not an unlimited entitlement to whatever educational arrangements an individual might demand. Rights relating to marriage and family exist to protect and support institutions that serve important goods: the stable union of spouses, the bearing and raising of children – and importantly, the presence of mothers and fathers whenever possible – and the obligations of care between family members. Rights in the context criminal justice protect people against arbitrary punishment and abuses of state power, but they must also be understood alongside the demands of justice for victims, public order, and the protection of innocent people – considerations that they do not hold a ‘trump’ over.
Even freedom of expression, rightly understood, does not necessarily entail an unlimited freedom to produce and distribute anything whatsoever. In one of my favourite cases, Justice Brown rightly notes that this right does not contain the right to create child pornography, which ‘infringes’ on other rights and only then is ‘reasonably limited.’‘reasonably limited.’ There is a world of difference between protecting the freedom to communicate ideas, pursue truth, and participate in public life, and claiming that the production and distribution of obscenity must enjoy the same protection is absurd, but perfectly illustrative of our dysfunctional account of rights.
In other words, the good that a right exists to secure helps define its scope. Rights have inherent limits, and they exist alongside duties and obligations to others. Not every desired activity or individual preference constitutes a right in the first place.
What’s more, rights are not principally secured by courts. They are given concrete meaning and effect through the laws, policies, institutions, and practices that legislatures establish. Public safety depends on criminal law, effective policing, and a functioning justice system. Education depends on schools, curricula, teachers, and institutional arrangements. Family life depends in part on a body of laws that recognizes and supports the duties and relationships that make natural families possible.
None of this is accomplished simply by declaring ever more expansive rights and inviting courts to adjudicate their inevitable conflicts. In fact, I would gladly suggest it is directly undermined by it.
Morton and Knopff understood that the Charter revolution was not simply about judicial power. It was about a profound change in how Canadians understand rights, politics, and the proper role of democratic government.
Twenty-five years later, their work remains indispensable. And recovering a sounder understanding of rights, together with the proper responsibilities of legislatures and courts, is among the most important tasks facing Canadian law and politics.
in Domestic Policy, Inside Policy, Latest News, Political Tradition, Justice, Rights and Freedoms, Social Issues, Geoffrey Sigalet, Peter Copeland, Court Party
Reading Time: 9 mins read
AA
In July 2026, legal scholars from across the country met at the University of Calgary’s School of Public Policy to discuss Rainer Knopff and Ted Morton’s seminal book, The Charter Revolution and the Court Party, 25 years after its publication. The result of that conference will be a series of eight essays compiled and published by the Macdonald-Laurier Institute. To find all the essays as they are released or to listen to Knopff and Morton’s reflections at the conference click here.
By Peter Copeland and Geoffrey Sigalet, October 8, 2026
F.L. Morton and Rainer Knopff wrote The Charter Revolution and the Court Party more than 25 years ago, and it has aged with remarkable vigour. It remains one of the most important accounts of how the Canadian Charter of Rights and Freedoms changed Canadian politics. Not just a critique of particular court decisions, it was an argument about an institutional shift in power from legislatures to courts. This shift entailed a move from the messy compromises of political bargaining between large legislative coalitions to rights litigation by interest groups, thereby undermining democratic contestation in the name of so-called expert-driven constitutional adjudication (Morton and Knopff 2000).
The central insight of the book is that the Charter was not so much the cause of the revolution as the instrument through which a new legal-political constituency carried it out. The argument has three principal dimensions. Institutionally, Morton and Knopff argue that the Charter enabled political and legal actors to move major questions of public policy from legislatures to courts, and in time helped disincentivize legislatures from doing substantive policy work on contested issues. Sociologically, it empowered a support structure of lawyers, academics, activists, bureaucrats, media voices, advocacy groups, and publicly funded litigation networks — what Morton and Knopff called the “Court Party” — to pursue policy objectives via the courts. Philosophically, the new politics of the Charter encouraged a jurisprudence in which rights came to be treated as expansive policy claims that trump the disagreements and compromises of ordinary politics. On this account, rights are not interpreted and applied so much as expanded and balanced, with the inevitable conflicts resolved through vague and open-ended tests that substantially empower courts as policymakers.
If you read excerpts from the book today, you could be forgiven for thinking it was written just last year, as the problems it describes and predictions it made are eerily descriptive of the country we now inhabit.
Since the time of writing, the Supreme Court of Canada has decided contentious policy debates by practicing a judicial philosophy that allows it to substantially alter the meaning of rights well beyond the constitutional compromises reflected in the original meaning of the Charter’s text. These jurisprudential adventures include deciding or heavily shaping contentious policy debates in criminal justice, assisted suicide and euthanasia, prostitution, labour law, public drug use, homeless encampments, urban planning, education, immigration, and more, often in ways that reverse long-standing precedent and encroach on areas once thought to belong principally to elected legislatures (Copeland et al. 2025; Sigalet et al. 2026).
Morton and Knopff presciently argued that interest groups would help supply the courts with cases to decide even as Charter litigation offered such groups a way to circumvent the ordinary process of lobbying elected officials for policy change. Charter litigation has become a major avenue of political action, and interveners representing a range of elite interest groups now play a routine and influential role in Supreme Court litigation. In Charter cases heard by the Supreme Court, annual participating interveners rose from an average of 182 in 2000–08 to 252 in 2015–18 (McNabb 2025).
What’s more, the legislative and executive branches fund these very efforts to the tune of $3 million to $5 million annually through the Court Challenges Program, with 96 per cent of its highlighted human-rights example cases advanced left-wing policy outcome, as Dave Snow and Ryan Alford have shown (Snow and Alford 2025). Sigalet and Snow (2025) and Snow and Harding (2026) have also shown how Charter interpretation has contributed to the erosion of provincial autonomy by imposing national rights standards on areas of provincial jurisdiction.
Effects of the Charter and Court party on law, policy and the proper role of legislatures
Arguably, the accrual of judicial power has both undermined the division (between levels of government) and separation of powers (between branches), moving the judicial role away from its proper function as guardian, upholder, and interpreter of the law, to one in which they frame the moral and political order, over and above legislatures and the constituents they represent (Bird 2026).
This is unfortunate, because legislatures and courts play important, but different roles in ensuring the rule of law and securing the rights and flourishing of citizens. Courts provide stability, predictability to the polity, and coherence to the law, checking the legislatures and the executive against undue exercises of power. But it is legislatures, with the time and resources at their disposal to study, debate, and develop legislation, and with the democratic mandate to develop policy in the interests of Canadians, that are necessarily in a better place to put the rule of law and rights into practice by giving them concrete legal and institutional form.
A bill of rights can declare that Canadians are free from unreasonable search and seizure, cruel and unusual punishment, discrimination, education, or coercion in matters of religion, but those rights are not secured by the mere act of declaring them so. Legislatively enacted laws, policies, and institutions pertaining to the administration of justice secure rights through police practices, detailed evidentiary rules, criminal procedure, and sentencing principles. Compulsory school attendance, the provision of public, private, or mixed funding for schools, and school policies all give effect to the right to education. Legislative judgment, administrative competence, and courts capable of applying law faithfully in disputes constitute the institutional architecture that undergird rights and the goods they are to support. Rights live through institutions, habits, and bodies of law that give them shape, clear limits, and practical effect, all principally through legislative action.
Changing trends and the promise of our constitutional order
Where do we go from here? On paper, there should be a healthier relationship between the courts and the democratically elected legislative branch and the constituents they represent. Dialogue theory held promise: the idea that courts and legislatures remain in conversation after Charter rulings, with legislatures able to respond through revised laws; coordinate constitutional interpretation holds that courts, Parliament, and legislatures each have an independent duty to interpret and uphold the Constitution (Baker 2010); and section 33 remains one of the Charter’s clearest tools for legislative checks on the judiciary. And yet the promise of dialogue and coordinate constitutional interpretation has gone largely unfulfilled concerning the Charter. Perhaps some of this is beginning to change, as seen in the greater use of the notwithstanding clause (Buck 2026), growing public concern over contentious judicial decisions (Lawlor and Crandall 2023), recent criticism of judicial overreach from unexpected quarters (The Globe and Mail Editorial Board 2026), and renewed attention to the philosophical foundations of Canadian law.
Remedies
What, then, should reform efforts aim to accomplish? Is the goal simply more judicial restraint? Better judicial appointments? A stronger willingness by legislatures to use tools like the notwithstanding clause? Or should the ambition be deeper, aimed at recovering a richer account of law itself, not as an incoherent and arguably outright damaging pursuit of rights conceived as unlimited claims to be expanded in the direction of individual preference, but as an ordinance of reason ordered to the human good? The former sets up an incoherent endpoint for law, where unlimited rights necessarily clash with each other, and with any law. A better account recognizes that rights are inherently limited and that law works out their meaning and application by giving them concrete form in legislation and policy. In so doing, legislation helps to specify what justice requires in particular circumstances and relationships (Webber et al. 2018).
Perhaps, then the remedy requires judicial restraint, better appointments, a commitment to interpretation grounded in text, precedent, and legal tradition, along with greater parliamentary assertiveness. But it may also require a broader recovery of what Morton and Knopff call “the habits and temperament of representative democracy,” which may in turn require our representatives to reject the temptation to cede responsibility for rights to courtrooms and take active responsibility for articulating the meaning and limits of rights as specifications of justice between persons (Morton and Knopff 2000, 149).
With all of this comes risk, as efforts to correct judicial overreach can easily become an unhealthy politicization of courts in another direction. Morton and Knopff remind us that the judiciary does play an important function of protecting “core” rights and settling complex disputes about how the law relates particular cases and circumstances in a way that is independent from the political process (Morton and Knopff 2000, 157).
These are the questions we ought to think about most as our societies grapple with how to find a better balance for the role and scope of courts vis-à-vis Parliament. They are the questions that animate much of the legal work in MLI’s Judicial Foundations project and Landmark Cases Council. And they are the questions that the contributors to this booklet have grappled with.
It is an honour to help carry this work forward at MLI, and to do so in conversation with the those who started it: Professors Morton and Knopff. We extend our deepest gratitude to them, and to Dave Snow, Mark Harding, and all the participants and contributors to this conference and booklet for their constructive contributions to some of the most important questions facing Canadian democracy in the twenty-first century.
Peter Copeland is director of Domestic Policy (acting) at the Macdonald-Laurier Institute.
Geoffrey Sigalet is a senior fellow at the Macdonald-Laurier Institute, and the director of the UBC Research Group for Constitutional Law and an assistant professor of Political Science at the University of British Columbia’s Okanagan Campus.
References
Baker, Dennis. 2010. Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation. Montreal and Kingston: McGill-Queen’s University Press. Available at https://www.mqup.ca/Books/N/Not-Quite-Supreme.
Bird, Brian. 2026. “Judges Are Guardians of the Charter, Not Framers.” Inside Policy, Macdonald-Laurier Institute, February 3. Available at https://macdonaldlaurier.ca/judges-are-guardians-of-the-charter-not-framers-brian-bird-for-inside-policy/.
Buck, Charlie. 2026. “The Supreme Court Should Not Limit Use of the Notwithstanding Clause.” Policy Options, February 10. Available at https://policyoptions.irpp.org/2026/02/no-limit-notwithstanding/.
Copeland, Peter, Kerry Sun, and Yuan Yi Zhu. 2025. “It’s the Judges, Not the Charter, That Have Turned Canada into a Lawfare Nation.” National Post, October 14. Reproduced by the Macdonald-Laurier Institute. Available at https://macdonaldlaurier.ca/its-the-judges-not-the-charter-that-have-turned-canada-into-a-lawfare-nation-peter-copeland-stephane-serafin-kerry-sun-and-yuan-yi-zhu-in-the-national-post/.
The Globe and Mail Editorial Board. 2026. “The Immutable Duty of Restraint by the Courts.” The Globe and Mail. Accessed September 16. Available at https://www.theglobeandmail.com/opinion/editorials/article-the-immutable-duty-of-restraint-by-the-courts/.
Lawlor, Andrea, and Erin Crandall. 2023. “Longstanding Canadian Confidence in the Judicial System May Be on Shaky Ground.” Policy Options, August 24. Available at https://policyoptions.irpp.org/2023/08/judicial-system-confidence/.
McNabb, Danielle. 2025. “The History and Administration of Third-Party Interventions at the Supreme Court of Canada.” Canadian Public Administration 68, no. 4 (2025): 669–684, November 28. Available at https://discovery.researcher.life/article/the-history-and-administration-of-third-party-interventions-at-the-supreme-court-of-canada/d918d79f643b3858b0bcf2da152aee6f.
Morton, F. L., and Rainer Knopff. 2000. The Charter Revolution and the Court Party. Peterborough, ON: Broadview Press. Available at https://www.jstor.org/stable/10.3138/j.ctt2tv06z.
Sigalet, Geoffrey, and Dave Snow. 2025. “Notwithstanding Centralism: The Resurgence of the Notwithstanding Clause and the Conservative Provincial Rights Movement.” Canadian Journal of Political Science/Revue canadienne de science politique 58, no. 3 (2025): 516–537. Available at https://www.cambridge.org/core/journals/canadian-journal-of-political-science-revue-canadienne-de-science-politique/article/notwithstanding-centralism-the-resurgence-of-the-notwithstanding-clause-and-the-conservative-provincial-rights-movement/24F2F2EEBEF3C79ADA57444419F945F0.
Sigalet, Geoffrey, Kerry Sun, and Yuan Yi Zhu. 2026. Unseating Responsible Government: Judicial Interference in Canada’s Parliamentary Democracy. Macdonald-Laurier Institute, May 12. Available at https://macdonaldlaurier.ca/unseating-responsible-government-judicial-interference-in-canadas-parliamentary-democracy/.
Snow, Dave, and Ryan Alford. 2025. The Court Challenges Program: How Your Tax Dollars Fuel Social Justice Activism through the Courts. Macdonald-Laurier Institute, February 13. Available at https://macdonaldlaurier.ca/the-court-challenges-program-how-your-tax-dollars-fuel-social-justice-activism-through-the-courts-dave-snow-and-ryan-alford/.
Snow, Dave, and Mark Harding. 2026. Judging the Provinces: Charter Interpretation and the Erosion of Provincial Autonomy. Macdonald-Laurier Institute, January 21. Available at https://macdonaldlaurier.ca/judging-the-provinces-charter-interpretation-and-the-erosion-of-provincial-autonomy-dave-snow-and-mark-harding/.
Webber, Grégoire, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller, and Francisco J. Urbina. 2018. Legislated Rights: Securing Human Rights through Legislation. Cambridge: Cambridge University Press. Available at https://www.cambridge.org/core/books/legislated-rights/7558A5BE572B23E10F9A31F716558ED8.
