Colby Cosh: It's cute to think Parliament has any say over Criminal Code

National Post

21 hours ago

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This seems like an open invitation to Parliament to make its will known when it comes to principles of criminal sentencing, not to mention the higher-level political question of what distinctions the law is permitted to make between citizens and non-citizens. There is also the even-higher-level question whether Parliament has any remaining practical control of criminal sentencing at all. After all, the accepted sentencing ranges which loom so large in the Pham reasoning are themselves established by judges through an opaque oracular process of vibe-consultation, and they sometimes lead to controversial outcomes.
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The Liberals will probably kill Rempel Garner's bill with as little fuss as they can manage. But the more interesting outcome will arise if they co-opt it, allowing the Criminal Code to be amended. (Whatever your own views on immigration, you cannot reasonably deny that public sentiment has undergone a nightmarishly fast and well-documented change of attitude toward it.) Would the appellate courts then find a way to reject the new directive despite their endless fine talk of deference to legislatures?
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I'm afraid the only real question is 'How would they go about it?' Think about this month's Ontario Superior Court decision establishing that a few Toronto bike lanes were protected by the Charter. (You've seen various nincompoops complaining in other newspapers that, no, this ruling 'didn't create a right to bike lanes': readers may enjoy perusing the uncategorical view offered by the professionals at McCarthy Tetrault, and in particular the 'key takeaways'.)
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That bike-lane decision may not survive in the appellate courts, but the judicial procedure that led to it will certainly be available in a context of criminal sentencing. A trial judge confronted with the Conservative-initiated changes to the Criminal Code would almost be bound to accept that Charter rights were implicated, and he could thereby, like enterprising Superior Court Judge Schabas, conduct his own personal re-analysis of Parliament's decision, deciding whether the people's representatives had behaved rationally and non-arbitrarily. Thus is the character of our government now: any thought of statutory measures being 'passed into law' by 'legislators' is itself increasingly obsolete and misleading.
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