Straight thoughts 40

August 7, 2000

About a week ago, the Ontario Court of Appeal decided to strike down the law forbidding the use of marijuana for medical purposes, but the news received very little attention.
The obvious point is that, with the excuse of medical treatment, the decision legalizes possession and use of a mood-altering street drug, which has several effective medicinal alternatives.

But I think the decision was even more dangerous from the constitutional standpoint:
An ONTARIO Court gave a pronouncement stating that a FEDERAL law is unconstitutional and gave an ultimatum to the FEDERAL government to change the law within a year, or else the law would be considered null and void.
We entered a new level of judicial mess where not only the highest (un-elected) court of the Land interferes on the Legislative role of the federal government, but a provincial court now does the same.

This opens up a number of possibilities: An Alberta court could declare the Election of Senators unconstitutional… A BC judge could declare the federal budget unconstitutional… A PEI judge could declare the Prime Minister redundant…

Since governments have been unwilling to invoke the notwithstanding clause when it was essential, sooner or later they will have to invoke it for every trivial judgment, or assume their responsibility and come up with a new law specifically excluding the courts from interfering with the legislative process.