© 2001  Karen Selick
Drowning in Laws
An edited version of this article first appeared in the March, 2001 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Drowning in Laws

If passing new laws could make the world a better place, Canada should have reached perfection long ago.  Walk into any law library and feel your mind boggle at the volume upon volume of statutes and regulations that now govern us.  How can anyone possibly keep track of what he is or isn't allowed to do these days?  

Yet like the water-carrying broomsticks unleashed by Mickey Mouse in The Sorcerer's Apprentice, governments continue mindlessly and relentlessly sloshing more laws into the overflowing cistern.  I fear that, like Mickey, we are all in peril of imminent drowning.  

Ontario’s Conservative government has certainly been contributing to the deluge recently, tabling flashy, vote-seeking bills like there’s no tomorrow.  Some are simply useless or superfluous, others downright harmful.  By the time you read this, some of them will probably be law. 

For instance, there's Bill 117, the Domestic Violence Act.  This little gem, dubbed by some the "Shout at your spouse, lose the house" law, emerged after several highly publicized spousal homicides.  However, the bill contains serious--pardon the expression--overkill.  Ontario already had laws permitting abused or threatened spouses to obtain restraining orders.  Judges gave them out like candy.  In 16 years of matrimonial practice, I can’t recall ever seeing a request refused.  

As well, the Criminal Code already made it illegal to stalk, threaten, assault or murder someone.  Peace bonds were already available to protect non-spouses who didn’t 
qualify for restraining orders.

The problem, therefore, was not an insufficiency of law.  The problem was that the existing laws were sometimes not being invoked or reliably enforced.  A new law won’t change this.  Lethargy and incompetence have not been miraculously abolished.  And some people won’t be deterred by such orders anyway.  After all, if your intent is to commit murder, breaching some silly little restraining order won’t trouble you.

So there was little to be gained by enacting the Domestic Violence Act, but plenty to be lost.  The bill might well be unconstitutional, encroaching heavily on criminal law territory without the normal safeguards for the accused, and purporting to prevail over orders made under the Divorce Act.  Its broad confiscatory remedies provide tempting financial incentives for malicious and unscrupulous individuals to make false accusations.  

Absurdly, the bill addresses this by reiterating that existing Criminal Code prohibitions against perjury and public mischief will apply. Does it now take two laws to make something illegal?  Or is duplication now necessary merely to be heard over the din?

Then there’s Bill 67, which regulates the sale of b-b guns, starter pistols and other toy guns.  Right--as if it’s not already illegal to rob convenience stores with fake guns.  As if there’s not already a huge supply of gunlike objects in toyboxes throughout the country.  As if criminals couldn’t get real guns from the thousands smuggled in every year.  As if the Supreme Court hadn’t told Ontario and seven other provinces and territories last June that gun control is a federal responsibility.

Next there’s Bill 155, the civil asset forfeiture proposal (the "Remedies for Organized Crime Act").  Again, a likely encroachment on criminal law jurisdiction.  Again, overkill.  The Criminal Code already allows the seizure and forfeiture of crime proceeds, and Ontario already has a deal with the feds to get a share of the loot.  The U.S. has had laws like this for decades, but there’s no evidence that they’ve made even the slightest dent in organized crime.  What they have done is deprived thousands of innocent people of private property, corrupted entire police departments, and transformed the government into another gang of thugs living off the avails of crime.  

Throw in Bill 168 ("Prohibiting Profiting from Recounting Crimes Act"), Bill 176 ("Protecting Children from Sexual Exploitation Act") and the proposal to drug-test welfare recipients, and this all adds up to an Ontario government that seems to want to take over the field of criminal law, or at least to re-enact every federal law as a provincial law with its own local twist. 

Like the sorcerer’s apprentice searching frantically through his book of incantations, politicians seem convinced that if they just keep trying, tinkering tirelessly with the wording of the law, they’ll hit upon the magic formula that will solve society’s problems.  However, they fail to realize that it was their own tinkering that created many of the problems in the first place.

Organized crime would never have become the mammoth power it is today if governments had not enacted laws driving the voluntary exchange of certain drugs, sexual services and gambling services underground.  Separated and divorced men might not feel so enraged at their former partners if the property, support and custody laws did not strip them of every reason for living.  

In his book Simple Rules for a Complex World, Chicago law professor Richard Epstein points out that paradoxically, a complicated society functions best with uncomplicated laws.

If the best Ontario’s politicians can do is to re-enact the same old stuff in slightly modified garb, maybe we’ve reached the point where we no longer need a body of full-time lawmakers.  By now, legislating should be at best an on-call job for those rare occasions when something new under the sun actually does turn up.  With the time they have left over, politicians could start considering what earlier legislative vortices should be repealed.  

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June 22, 2000