A sign of the times was the Alberta judicial “triage” proposal, published this week, that advises prosecutors not to proceed with cases where there is only a “slim chance” of success, and in non-violent cases, to settle for lower offences to avoid the cost of trials. This is ostensibly a response to a ruling of the Supreme Court of Canada last summer that set time limits for the launch of proceedings in criminal cases, to avoid unnecessary delays for those entitled to the presumption of innocence.
I have been outraged at the manner in which the courts, led by the federal Supreme Court, have usurped the rights of Parliament on the pretext of acting on the Charter of Rights and Freedoms, and by the supine passivity of the federal and provincial legislators in allowing the courts to emasculate them. The concept of the high court of Parliament has been strangled and the fear of Pierre Trudeau and others (including me) after the patriation of the Constitution in 1982 that the Notwithstanding Clause would be invoked to create gridlock between the federal and provincial authorities has not occurred (apart from a matter of commercial bilingualism in Quebec and same-sex marriage in Alberta).
Every instance of the courts egregiously ignoring the legislative intention regarding laws being interpreted from the bench should be overturned by the relevant legislators and readopted, with or without modification. Legislators legislate and judges judge; there is leeway to a judge and they are not robots and must not be constrained as in the absurd straight-jacket of legislated mandatory minimum sentences. But they can’t just make the law up as they have been in the habit of doing. The alternative is to turn our entire system of elected governments, the supremacy of Parliament and the whole notion of responsible government into a farce, a noisy charade, like the European Parliament, where the legislators have no authority and are just a contemptible talking shop. (Good luck to Stéphane Dion — he has been sent to Brussels as ambassador to a corpse. At least the snails are good.)