Legislating is for Legislators, Not Judges

Legislating is for Legislators, Not Judges
Posted by CN Staff on October 10, 2003 at 16:24:10 PT
Source: Ottawa Citizen 
W.H. Auden may have called poets the unacknowledged legislators of society, but in Canada today, our legislators seem increasingly to be judges.The Ontario Court of Appeal, for example, just wrote a new marijuana law for Canada. Asked whether the existing law was constitutional, it couldn't restrain itself to a simple "Yes" or "No." Instead, it amended the law, removing some parts and reinstating others. While that's an improvement on writing a completely new law, which the same court did in defining marriage in Canada, there is another way.
In Britain, the High Court just told two appellants an existing law (concerning the fate of embryos created through in-vitro fertilization) was unfair, but it was up to the legislature to correct this. Closer to home, the Quebec Court of Appeal just upheld a provincial regulation that bans margarine coloured to look like butter. It had been invited to strike the regulation down as unreasonable. But it wisely ruled that, while a legislative act could be so unreasonable as to offend against basic conceptions of justice, there was a broad area of policy in which reasonableness was a question for legislators and voters.Even the current marijuana case was originally handled with restraint. When the Ontario Superior Court was asked if the existing medicinal marijuana law was unconstitutional, it said, essentially, "Yes." It didn't seek to create a new and better law. It left that the job for Parliament, where it belongs. It even stayed its own ruling to give parliamentarians time to craft a better law if they wanted to. But the Ontario Court of Appeal, in reviewing the lower court's ruling, couldn't resist usurping the legislative function.As a common-law country, judges have always made law in Canada through their judicial rulings. But we'd prefer they leave the drafting of legislation to the people we elect to do that job -- and that our legislators stopped passing the buck to the courts. Source: Ottawa Citizen (CN ON)Published: October 10, 2003Copyright: 2003 The Ottawa CitizenContact: letters thecitizen.canwest.comWebsite: Articles & Web Site:Cannabis News Canadian Links Limits for Possession May Be Cut To Speed Bill Easing Pot Laws Illegal Again - London Free Press
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Comment #1 posted by FoM on October 10, 2003 at 21:36:00 PT
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