LEGISLATING IS FOR LEGISLATORS, NOT JUDGES

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.