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When it comes to swingers' clubs Canada's Supremes got
it wrong - again
In a nutshell, the Court ruled that swingers' clubs are not illegal because they do not offend the public's sense of decency. To do that, say our country's top judges, the activities in question must be demonstrably harmful to individuals, or to the public at large. According to them, "moral views, no matter how strongly held", are not sufficient to determine what constitutes indecency. The ruling was welcomed by liberals and libertarians alike who share the belief that government should not impose moral behaviour on Canadians. The only problem is - that, emphatically, is not what the Court has said. If our Supreme Court Justices really believed that strongly held moral views have no place in jurisprudence, they would have struck down Canada's public indecency laws altogether. After all, questions of indecency are, by definition, moral questions. Instead, they chose to retain those laws and create a new standard by which indecency can be measured - demonstrable harm. Simply put, if it causes no harm, it's not indecent behaviour. This is an important point to grasp. The Court has taken the position that the public continues to possess the right to enforce standards of public behaviour, but that it does not have the right to decide what those standards should be. that's the job of the Court. In other words, far from shielding citizens from the supposed oppression of moral rectitude these Supreme Court Justices are merely substituting their own standard of morality for the accepted standard. The new standard is itself problematic. Ambiguous at best, it virtually guarantees future litigation as lawyers and judges grapple with the question: what is harm? What if two consenting adults engage in public sexual activity on the front lawn of Parliament? Would this behaviour meet the harm test and therefore be deemed indecent? The truth is that sensible people understand that when it comes to the law, or even the development of public policy in general, questions of morality - of right and wrong - simply cannot be avoided. Assertions to the contrary simply betray a child-like understanding of the world in which we live. What is the debate over health care reform, for instance, if not a moral one? Absent moral standards, who are we to say that the sponsorship program in Quebec was wrong, especially if it can be proven to have been effective? Of course, laws proscribing indecent behaviour differ somewhat from the above in that they are, by definition, entirely moral in nature, but it is precisely because these laws and the issues to which they pertain are essentially moral and subjective that they must be resolved by our elected representatives and not the courts. It is only within our democratic institutions that dialogue takes place, people are persuaded, consensus is sought and eventually, compromise is reached. Our courts are singularly unsuited to play this role. It may be that these democratic institutions have become somewhat moribund in recent years, but acceding to the transfer of legislative prerogative from allegedly dysfunctional democratic fora to a manifestly undemocratic one like the judiciary, is no answer. Indeed, one could argue that a significant cause of the decay in our democratic institutions is that they no longer engage in such meaningful and vigorous debate. Inevitably, in a democracy we must rely on the good sense and good will of our fellow citizens as expressed through our democratic institutions - our legislatures and other elected bodies - not just to set such standards, but to guard against their abuse as well. The role of the Courts must be limited to ensuring that whatever standards the community decides upon are applied fairly and equitably. By usurping the power and responsibilities of the legislative branch of our system of government, Canada's judges have politicized this country's courts and called into question their impartiality. That is a dangerous thing. The time has come, therefore, for citizens, through their legislators to reassert their authority by reclaiming their constitutional rights and resuming their constitutional responsibilities. Canada depends on it. Failure is not an option.
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