Wednesday, June 17, 2015

The Importance of Using the Courts


Statist propaganda also available at CinC ;-)

It could be argued that R. v. Smith, like so many Charter challenges, resulted in the courts creating legislation. That would likely be the opinion of the federal government, given Health Minister Rona Ambrose's criticisms of the Supreme Court in the wake of the Smith decision. It is apparent that this federal government has little to no respect for the courts, but the separation of government powers is the cornerstone of the Canadian system. Canada's highest court’s ruling on cannabis extracts and edibles reaffirmed that Canadians are by default free. And that freedom includes the right to consume cannabis in more than its dried form.

An independent judiciary is essential to a free society. Without it, the fight against prohibition would be very different. With the Supreme Court’s ruling in Smith in favour of patients and progress, the odds that a similar fate is in the cards for Allard are looking better everyday. And while regulating dispensaries and compassion clubs is still an open question (is it an LP-takeover through regulatory capture?), the fact that police aren't shutting them down is another blow to Ottawa’s governance.

In contrast, changing government itself by way of an election is an effective strategy insomuch that it “legalizes” by removing all barriers to transactions and capital accumulation. In the meantime, the courts have proven to be a superior means for reaffirming that liberty is something we already have as human beings. Recently, governments have been effective at taking away this liberty, not protecting it.

Far from encroaching upon the legislative sphere of Parliament, the Supreme Court is demonstrating how far the judicial definition of liberty extends. This is concerning for some conservatives because the representatives of Parliament are consented to rule by the sovereign will of the people. But the reality of the system has freethinking representatives turning into backbench party lapdogs while government leaders create permanent bureaucracies.

In an attempt to counter regressive policy, patients advocacy groups are using the judiciary process. In response, the federal government is arguing that the Supreme Court is legislating. Smith was apparently unnecessary since there is nothing to prevent an LP from offering extracts after going through the traditional food and drug regulatory process. But now with the Smith ruling, the former “unregulated” MMAR growers and patients can use extraction methods that are potentially dangerous. The same with Allard. If the original growers are grandfathered in, the threat to public health and safety will be too much to bear!

Of course, the reality is a lot more sane and safe than the prohibitionists make it out to be. From listening to the federal government, one would think it's 1925 and patients are making moonshine in their basements. But it's 2015 and the extraction process has developed into a niche market with self-regulated producers and informed patients and consumers. Far from legislating, the courts are merely reaffirming that Canadians are by default free. When conflict arises between the government and the people, the burden of proof is on the government policy that aspires to restrict our fundamental freedoms. In the case of Smith it was about extracts, but more importantly, Owen Smith wasn't even a patient. He was baking for a compassion club. With Smith and Allard, the courts are ruling in favour of BC's freer and fairer market. They are in fact ruling in favour of everybody's liberty.

Having the majority (even with 37% of the vote) violate the rights of a minority (like patients) was what the founders of Canada were trying to prevent. When it comes to R. v. Smith, or Allard or even Chaoulli v. Quebec, Carter v. Canada, Canada v. Bedford, Canada v. PHS Community Services Society, and many others, history is on our side. A free society requires an independent and impartial judiciary and so far that's what we're getting.

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