Poorly-Written Laws Are Criminal by Jane Gaffin

"To maintain the ascendancy of the Constitution over the lawmaking majority is the great and essential point on which the success of (any nation’s) system must depend; unless that ascendancy can be preserved, the necessary consequence must be that the laws will supersede the Constitution; and, finally, the will of the Executive, by influence of its patronage, will supersede the laws ..."
-- John C. Calhoun (1782-1850) American statesman

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In a July 2nd column, Christopher di Armani asked a resounding question: “Does the Yukon Territory really need another layer of bureaucracy to do the job the RCMP is already paid to do?

Then on July 3rd, he went on to blister the breeches of British Columbia Agriculture Minister Don McRae for introducing a Bill titled the “Animal Health Act" that would make it criminal for anyone to exercise their constitutional free-speech right by disclosing a disease outbreak in any animal population. To ensure muzzle compliance, the government inserted an outrageous penalty of two years in the slammer and a $75,000 fine for offenders.

Those observations reminded me of a study once conducted by the Vancouver-based Fraser Institute that said those who dare define regulations would find themselves working in a quagmire.

At the relevant time, I suggested the writers could have possibly saved four pages of mire by simply saying “it’s a law”. It doesn’t matter if it’s called a regulation, act, statute, rule or a sow’s ear, a regulation is still a law.

It doesn’t matter if the law is enforced by the tax collector, mining inspector, game warden, fisheries officer, bylaw officer, dog catcher or the police.

They have power over you.

An individual can be arrested, charged, have property seized and be forced to shell out mind-boggling amounts of money on defense in the courts and before quasi-judiciary boards. Often, the exercise is akin to trying to nail jelly to the wall.

Rather than defining regulation, maybe it would be more prudent to find out who is writing the ruthless blizzard of fraud that contradicts the Constitution and doesn’t stay within the confines of the Criminal Code of Canada.

A job counsellor once explained that most “experienced” writers end up going underground with the government as anonymous policy-writers or drafters of legislation.

What?

If they do, then I’d guess the so-called “experienced” writers have the talent of one of Saint David Suzuki’s fruit flies that prevents them from plying careers as creative writers or journalists.

Yet, according to the job counsellor’s words, they obviously are “qualified” to earn an extraordinary wage going into the bowels of some government “there-ought-to-be-a-law” dungeon where day after day they smugly tap out boring policies, rules, regulations, acts, bills, statutes, enactments and ordinances that have the potential to add yet another layer of regulatory enforcers to the already bloated bureaucracy who can be turned loose on the unsuspecting “smucks” who are engaged in nothing more harmful than trying to eke out an honourable living in the real world.

Under any circumstances where a person sets out to deliberately inflict harm on another human makes him a certifiable criminal in my books.

And since nobody is expected to be able to comply with the goofy regulatory rigamarole created by the regulatory writer, anyway, fantastic schedules of $100,000-a-day fines and lengthy jail terms are fabricated as punishment.

Law really should be affordable and sensible. Ask any miner.

Frank Taylor, a second generation placer miner on Duncan Creek, Yukon once said:

There has to be a good reason when the government brings in legislation that could put someone out of business. For people to be productive, they must be given incentives, not have them taken away. Over-regulation takes away people’s dreams in any small business.

Yet much of the new law is driven by environmental groups and labour unions that want detailed guidelines so people and companies know exactly how to behave. Ironically, the regulations end up written too detailed and complicated for anybody to comprehend; not even the judges.

Law should be clearly written. Ask any traditionalist judge worth his or her salt.

If the laws aren’t clearly written, then it is the politicians who are the demonstrable criminals for enacting legislation that intentionally harms the citizenry by grinding them down and putting them out of work.

Here’s a classic example!

A top writer, Claire Wolfe, author of Don’t Shoot the Bastards. (Yet): 101 Ways to Salvage Freedom and other such profound literature, once related a story of a friend who testified as an expert witness in a tax case. The friend wasn’t a number cruncher. Her expertise was grammar.

On the stand, she diagrammed a mega-monster sentence from the tax code and proved the alleged regulation couldn’t be obeyed. The regulation literally had no meaning in the English language.

“Still,” emphasized writer Wolfe, “people get arrested for disobeying it.”

On the same note was a Yukon territorial wildlife act, which had incorporated an unconstitutional provision that could have been challenged in court. To effect the act restricted the outfitting business to Canadian citizens, albeit the Constitution has always provided for “Every citizen of Canada and every person who has the (landed immigrant) status of a permanent resident of Canada has the right to pursue the gaining of a livelihood in any province.”

For a decade, or so, on numerous occasions, judges had slammed the act, which contained a lot of gray areas, as “a mess”, “inadequate” and “unclear”.

Still, big-game outfitters and guides continued to be charged, convicted and their licenses revoked for disobeying it.

Why wasn’t the law fixed?

Because, for some incomprehensible reason, which might smack of politics, spineless judges were reluctant to order the act returned to the legislature for revisions. And ordinary working people continued to take the brunt of a poorly-written law.

A territorial court once ruled that a guide’s location was such that she was not “accompanying” her non-resident hunter, which was required by law. How would anybody know if she was “lawful” or “unlawful” under the act if no lawyer or judge knew what the law said or meant?

That is known as a Catch 22, a condition novelist Joseph Heller aptly described in his war satire in 1961.

The protagonist, World War II pilot John Yossarian, and his friends are locked into Europe where they are forced to endure an absurd existence defined by blindly-ambitious, crazed superior officers and fraught with a string of Catch 22s--situations in which an outcome or solution is rendered impossible because a set of inherently illogical rules interfere.

“Just as outfitters and guides have their responsibilities,” admonished deputy justice Roland Haines during the appeal case, “surely courts and legislatures have their responsibilities.”

Those responsibilities appeared to have been shirked through a poorly-written act, he added. “Isn’t there a basic requirement of the law that there be some certainty?”

Although the Crown agreed the law wasn’t very clear, the Crown prosecutor still argued, rather nonsensically, that all outfitters were duty-bound to know the act in order to know what was and was not legal.

The task was an impossible Catch 22. The defense lawyer wondered how an average person was supposed to know what “accompany” meant when a trial judge had to do a lengthy search of case law and statutes from other jurisdictions in order to define it.

Only a fool tries to out-judge a judge.

Later, the guide was found guilty and fined which could be viewed as a “tax” to help line government coffers. It’s reminiscent of the methods employed in third-world countries by guerrillas and pirates who extort “tax” money from hostages and owners of seized cargo ships to help fund their militant operations.

In another case, open season was declared on a contractor. He was hired by the Yukon government to clean up ammonium nitrate (fertilizer), spilled by another trucker, and deliver the “contaminated” soil to a farm near Watson Lake in 1998.

In May 2000, an environmental protection order was issued by bureaucrat Bill Oppen, then deputy minister of Renewable Resources. An analysis had indicated traces of metal where the contractor off-loaded the materials near Watson Lake.

The government ordered the contractor to clean up the contamination on his own dime. Later, the court agreed with the accused: The contaminants weren’t the contractor’s problem.

Justice Paul Chrumka quashed the government’s environmental protection order.

“The deputy minister’s exercise of a discretion to enforce the environmental protection order was unfair and contrary to natural justice, and his exercise of that discretion was, as the law calls it, an exercise of abuse of discretion…”

When the environmental order was issued, a hearing had been held to supposedly give the contractor a chance to defend the actions for which he was accused.

Deputy Minister Oppen and others were in attendance; the direct supervisor on the job, Brian Levia, was not.

“The onus,” ruled the judge, “is on the deputy minister to conduct a hearing that’s fair. The question is: ‘Is it fair to conduct a hearing with the principle witness not there?’ ”

This is the gradual process as to how Canada’s due process principles came into shambles. Poorly-written laws administered by legal quacks lead to unfairness and brings the entire justice system into complete disrepute.

My question has always been constant: How does society reimburse victims of bad laws and badly-enforced laws and badly-adjudicated laws for undue expenses of hundreds of thousands of dollars and compensate their time, duress, anguish and reputation?

Perhaps it should be written into the law that if the court rules against the regulatory authorities, whose main aim is to destroy the victim, then they pay personally. It might curb the fanatical tendency to use a pile driver to correct a problem where a tack hammer would do.

At one time, an Ontario Court of Appeal ruling was on the verge of changing the course of action as to how regulatory authorities conduct business.

Inco, a mining company, had been convicted and fined for allegedly leaking heavy metals into a river from one of its Ontario facilities in early 1994.

Since the regulatory authorities were deemed to have overstepped their investigative boundaries, the appeal court ruled that Inco had to be retried.

One of my all-time favourite lawyers, Edward Greenspan, viewed the ruling as a watershed in a long-running battle to keep regulatory authorities from running roughshod over the constitutional rights of individuals and corporations.

In a June 7, 2001 Globe and Mail article, headed Court Reins in Regulatory Investigators, lawyer Greenspan spoke candidly about regulatory officers having powers much broader than the police.

“These regulators have bullied and strong-armed people--but no more,” he was quoted as saying. If they’re going to investigate, they will be subject to the same laws as the police, he warned.

“It is a very dark day for regulatory authorities in the province of Ontario and federal regulators operating in the province.”

Punishments for regulatory offences can be every bit as severe as those for criminal acts of force, he noted. Therefore, the same protections should be in place.

“People go to jail for these offences, and jail is jail,” said lawyer Greenspan. “Just because regulatory investigators wear suits instead of police uniforms doesn’t mean they are not cops.”

To obtain judicial authorization to search and question, investigators must convince a judge or justice not only that they have reasonable and probable grounds to believe an offence took place, but also that their request is likely to result in evidence that is relevant to it.

If that ruling had substantial implications on how federal regulators would behave across Canada, it would have been very noticeable in a federally-controlled jurisdictions like the Yukon. And it would filter down to other levels of government.

Stopping the bullying couldn’t come too soon. It was bad enough that laws on the books are vague. Worse yet are the out-of-control regulatory enforcers who need reining in, tuning up and held accountable for the myriad of travesties perpetrated against hard-working Yukoners, nay, Canadians, whose biggest crimes to date had been trying to earn a living.

Sadly, over the years, nothing changed, except to get worse. More victims fell prey to harsher fines due to a continuing blizzard of poorly-written laws and larger contingents of zealous regulatory enforcers.

July 7, 2012

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