SUPREME COURT LEAVES MARIJUANA LAWS TO PARLIAMENT TO DECIDE -- BUT WHY STOP
THERE?

In its ruling that marijuana possession should not be liberalized, the
Supreme Court of Canada is to be congratulated for, at last, upholding the
principle of parliamentary supremacy. But, based on the court's history, it
was a strange issue on which to concede authority to Canada's elected
representatives.

The Supreme Court ruled 6-3 last month that there is no constitutional
right to smoke marijuana for recreational purposes. The ruling ended an
appeal by three men convicted of marijuana offences, who argued that their
Charter rights were being violated by the anti-pot laws.

The case was necessary because lower courts in several provinces have put
anti-marijuana laws in legal limbo by ruling that these laws violate
Charter rights.

However, the court decided that if the three men wanted redress, they would
have to obtain it through Parliament, rather than the courts. Parliament,
the majority opinion said, had the right to prohibit behaviours (such as
pot smoking) that it decides might be harmful.

This decision is puzzling, because on many other moral issues the Supreme
Court and lower courts have decided to overturn the clear will of
Parliament against, for example, same-sex marriage and abortion, in favour
of individual Charter rights. The result is, too often, rule by unelected
courts, rather than Canada's democratic representatives.

Judges deny they are doing anything but interpreting the laws, including
the Charter, that parliamentarians pass.

Yet the Charter itself says it "guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society."

Surely the body that should set these "reasonable limits" is one made up of
democratically elected officials acting through Parliament, and therefore
answerable to public opinion, rather than judges who are answerable to no one.

However, MPs themselves are also to blame for judicial supremacy when they
palm the resolution of tricky moral issues such as abortion off on the
courts, rather than take the risk of changing the laws themselves. And, of
course, it was MPs in the first place who passed the Charter of Rights and
Freedoms that handed courts this kind of potential power, and MPs who have
refused to use the "notwithstanding" clause of the Charter when courts
abuse this power.

So, the Supreme Court refuses to bow to the will of Parliament on issues
such as abortion and same-sex marriage, which MPs have opposed.

But it submits to Parliament's will on the issue of marijuana, on two
grounds: that marijuana use is physically harmful (which it may be, but so
are legal tobacco and alcohol), and because "a society that extended
constitutional protection to any and all ... lifestyles would be ungovernable."

Yet, the courts have taken it upon themselves time and time again to
protect certain lifestyles in terms of, say, abortion and same-sex
marriage, when Parliament has decided otherwise.

This is not to say that liberalized abortion and same-sex marriage are
wrong, or that recreational marijuana use is right -- although it is
puzzling that people do not have a right, in the eyes of a court that is
apparently so obsessed with rights, to put what they want into their bodies
if no one else is harmed.

And surely a law that gives 600,000 Canadians criminal records for
behaviour that harms mainly themselves is a bad law that an activist court
might want to overturn.

However, the moral rightness or wrongness of marijuana use or other
activities is not the issue here: The issue is whether courts should be
making these decisions. Surely, major changes to society's moral laws
should be decided in the House of Commons and Senate chambers, not in
courtrooms.

Tackling these issues may require more moral courage by Parliamentarians
than they have shown so far -- including the courage to overrule courts
that go too far.

But the courts could help, as the Supreme Court has done in the pot case,
by having the moral courage to refer decisions on issues like marijuana,
abortion and same-sex marriage back to the proper forum -- the people's
elected representatives.