REGULATIONWATCH: Supreme Court of Canada weighs in on 'necessity' of regulation
This evening, I read R. v. Wholesale Travel Group, a 1991 Supreme Court of Canada case in which Justice Cory distinguishes between criminal and regulatory offences for the purposes of establishing the mental element (ie. the accused's awareness) of the individual's impugned action.
Reading the case is fairly uneventful, until you get to the part entitled The Fundamental Importance of Regulatory Offences in Canadian Society.
Here are some gems:
"It is through regulatory legislation that the community seeks to implement its larger objectives and to govern itself and the conduct of its members."
"It is difficult to think of an aspect of out lives that is not regulated for our benefit and for the protection of society as a whole."
"From cradle to grave, we are protected by regulations...we profit from regultory measures which we often take for granted."
"In short regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society."
"It is properly present throughout our lives."
Just too funny.
posted by ROC @ 1:02 am
8 comments
8 Comments:
Do you believe that speed limits are necessary?
Do you think that killing someone with a car should rank alongside of second degree murder?
What about the myriad of other laws that govern our society?
Do away with all personal and property protections?
Do away with the rights of consumers who have been ripped off by shoddy businesses?
How about it??!!?? True anarchy - survival of the fittest!
No? OK then, where do you start drawing the lines?
The state has an obligation to safeguard negative rights. Everything else is superfluous, though pragmatically I accept a certain degree of government encroachment in the private sphere.
-Patronus
"The state has an obligation to safeguard negative rights."
WHAT THE does that mean?
"...negative rights"? I have NEVER heard that one before.
Just make it up as you typed it?
If you are arguing that "intention" - the product of "state of mind" should not be a protected defence in this instance then I would agree that you are right.
If you are proposing that "mental state" and "intention" should not be debated under the Bill of Rights (Charter?) then I would hesitate.
If you are suggesting that a firm of travel agents should be able to publish advertisements that are in fact lies then I will argue against that strenuously.
But - "negative rights"? I guess that they result in complex sentences.
Pick up any Political Science 101 textbook, and you will quickly learn the difference between "positive" and "negative" rights.
-Patronus
All of my rights are POSITIVE.
A "negative right" - that can only be a tautology. How silly.
I have the right to live without fear of loss, or restriction, of my right to life.
I have the right to the possession and retention of property without fear of loss or unjustified removal of that right.
I have the right to protection from the actions of others, either by process of law or by the legal right to defend myself and family.
All of those I see as POSITIVE rights. They take nothing from any other person. They protect me from the actions of others. They might not be perfect - seeing as I made them up myself - but as a starting point I think that they are pretty good.
In the third of those "rights to freedom", I made reference to "process of law".
That process I see as a simple matter of deciding, in the given circumstances, the path that balances the remedy for each party to the strength of their respective "rights". That leaves out any matter of "legality or illegality".
Justice then becomes a matter of equalising remedy to rights rather than winners and losers.
I'm a negative rights kind of guy, myself.
But I rather like things like pollution regulations -- force the costs of externalities back on the parties who cause them. (Yeah, the hardcore libertarians call me a wimp.)
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