It ain't over yet

By Scott Carpenter
web posted April 3, 2000

Last week the British Columbia Provincial Court threw out WCB regulations regarding 'no smoking' in private establishments because, as the judge decided, there was not enough 'public consultation' on the issue. It seems that the yelling, screaming, protesting and plain old non compliance of the provinces hospitality industry saved it from an untimely end. At the same time the provincial NDP government is quickly backpedaling and distancing itself from the whole fiasco. The premier states that his government had nothing to do with the law - it was a WCB matter. How politically expedient of them. You would think we were getting close to an election year or something... oh... that's right - we are. Must be a coincidence?

Admittedly, it is nice to see this asinine legislation go for one reason or another but I am constantly befuddled by the apparent lack of any sense of justice or foresight by the people of this country. Maybe you're wondering what I'm ranting about? Let's think about the ruling for just a moment shall we? The law was struck down, not because it violated our rights to life and property but because there was not enough "public consultation" on it.

Not only does the judge's ruling leave a lot of loop holes open for the WCB and other health fascists to enforce similar legislation in the future but it lays down a new standard for the creation of law. The judges ruling (perhaps worded to save face) states that the law would have been just had there been more open discussion amongst the general public. This is a dangerous definition of justice. What the court is saying is that as long as there is enough popular opinion (or just plain priming of the citizenry) behind any law, regardless of how just or unjust it may be, it is acceptable to enforce it on the populace.

Yikes! Is this a symptom of things to come, where a majority of 51 per cent is enough to pass legislation that violates the rights of the other 49 per cent? Or is this an example of how colour of law has run amuck in this country? Perhaps it is both?

In essence the ruling handed down by this justice does not even state that any law requires a majority's consent to be passed. All that is required is that representatives from various groups (which groups and how many of them are represented is not clearly defined) in the community come together to be consulted on the law. After that has taken place no one has a right to whine, bitch complain or protest because there was, after all, public consultation on the issue. Yet the folks in the restaurant and pub business seem to be placated with this ruling. What they don't realize is that they are admitting that they have no right to the ownership of their property and that in fact the right to smoke on their own property is a privilege granted to them by the government, courts and some imaginary group of representatives who must be consulted on such issues before hand.

Canadians are slowly digging there own graves by accepting rulings such as this. In doing so we give our rulers carte blanche to run roughshod over every natural right we possess as long as we are "notified ahead of time" and there is a an acceptable level of "public consultation" on the legislation. The whole idea is so damn absurd it's almost laughable. I can't help but chuckle every time I imagine how this process might work - the image that comes to mind is born from an old cliché that says democracy is two wolves and a lamb deciding on what they should have for dinner. Indeed, one wonders which is worse: a tyrannical piece of legislation that violates the property rights of a given sector of society or the subsequent ruling handed down in a kangaroo court which strikes the law but allows the government or any of its bureaucratic wings to pass any arbitrary rules with the agreement of a majority or the right amount of "public consultation." Moreover, how much do you want to bet that "public consultation" becomes the new catch phrase for every liberal fascist and starting point for every tyrannical law in the future?

I can see the situation now: "But Mr. Property Owner, we consulted the publik on this issue and they decided that the state could run your farm in a much more effective manner than you or any other 'individual' could. In fact there was plenty of 'public consultation' on the 'Nationalization of Farm Lands Act' so you have nothing to complain about. The whole process was completely democratic."

This, in effect, is the logical extension of our judges ruling. As of now anything goes as long as we're told ahead of time what's going on and an imaginary sampling of the general population is consulted on the topic. The problem with consultation (other than the obvious fact that one cannot consult the citizenry - or any pathetic representation of it - on how they would like their rights violated) is that the government and the courts are free to take or leave whatever advice those representatives give them. That is what consultation means. It is the asking for and giving of 'advice only' and it has nothing to do with the democratic process.

Of course the upside to all of this is that with the right government in power we could turn this whole mess around. As long as we consult the 'public' first we could enforce major penalties for lying in office, for using colourable law and for violating the rights of one's fellow citizens. No? Don't think it will happen? Well... a guy can dream can't he? In the mean time the public has to learn the difference between 'right' and 'granted privilege' if they are to keep laws such as this from creeping once more into their lives and doing, in some cases, irreparable damage.

Scott Carpenter is the editor of Liberty Free Press and a regular contributor to Enter Stage Right.

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