© 2002  Karen Selick
Looking through Racism-Coloured Glasses
An edited version of this article first appeared in the April, 2002 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Big Brother Loves You Better Than You Love Yourself

We’ve all known that Big Brother loves us ever since George Orwell leaked the news more than half a century ago.  Lately, however, our courts and lawmakers seem determined to convince us  of an even more perverse variation on that theme—namely, that Big Brother loves us even better than we love ourselves. 

A couple of recent news stories drive home the point.

The first involves Gary Warman of Kamloops, British Columbia, who was handed a $29 fine for riding his bicycle without a helmet, contrary to provincial law.  Although he paid the fine, Mr. Warman then decided to challenge the law by appealing his conviction. 

The judgment of the B.C. Supreme Court was released in December (HMTQ v. Warman 2001 BCSC 1771).  Needless to say, the court rejected his appeal.  Part of the problem may have been that Mr. Warman, like so many before him who have challenged laws of this nature (I’m thinking primarily of seatbelt laws), chose to represent himself rather than retain a lawyer.

It probably wouldn’t have mattered, though.  The B.C. court was relying upon recent precedent when it rejected Mr. Warman’s submissions about the importance of  freedom of choice with these words:  “I conclude that although British Columbia’s bicycle helmet law infringes on Mr. Warman’s free choice, the infringement is of an insubstantial nature in light of society’s need to promote the welfare and well being of its citizens, particularly those operating bicycles on the province’s highways.”

Note that the bicycle helmet law is probably the most extreme example of paternalistic legislation that can be found anywhere.  The one and only person who can be harmed by failing to wear a bicycle helmet is the individual cyclist.  People who have challenged automobile seatbelt laws have argued that they, too are the only persons at risk, but the courts have responded by saying there’s a chance the seatbelt scofflaw might harm others by being jostled out of his seat and thereby prevented from controlling his vehicle any further.  Although this possibility seems pretty far-fetched even in the car example, it’s clearly out of the question with a bicycle.  Once the rider has been thrown in a manner where a helmet would make a difference to his well-being, he’s plainly not in a position to protect anyone else’s safety.

So the message is clear:  no matter what risks you, the bicyclist, might be prepared to accept for yourself, the state is determined to save you from yourself, to preserve you for the sake of “society’s need”.  The state values you more highly than you value yourself. 

The second story involves a group of some 25 bars and restaurants in Ottawa who are attempting to circumvent the city’s recent anti-smoking by-law.  The strategy is that each establishment closes its doors to the public, and caters only to “private parties” which are exempted from the by-law.  Former patrons of the “public” establishments are transformed into private party-goers merely by purchasing a membership card in the private boozing-smoking-dining club for $2.  Membership allows you to frequent any of the establishments in the association.

Some bar owners have even gone the extra mile and dismissed their employees, instead contracting out their waiter and bartender services to private catering companies.   Under the by-law, employees must be protected from smoke but caterers are apparently exempt.

Meanwhile, Ottawa’s by-law enforcement manager remains adamant that this “private party club” is just a ploy and that the group of bars and restaurants are still public places where the by-law applies.  In fact, so determined is the city of Ottawa that it employs 50 undercover officers to roam the town seeking violators.  It has issued dozens of fines, some as high as $5,000.  The association is using the revenue raised from membership card sales for legal fees to fight the fines.

It’s hard to imagine what further steps smokers could take to make it clear that they are prepared to assume the risks associated with patronizing smoke-filled restaurants.  They’ve bought the membership card, shown up at the place, sniffed the air, and remained to eat and drink.  Can there be anything more clear than their rejection of the protection that the city of Ottawa is determined to offer?

But the government still seems to feel it has the right to intervene, just as if it owned them.  That’s a pretty scary thought.  Ask yourself just what use it intends to make of such a valuable property some day. 

Right now the message we’re all continually getting from government is this:  “You’ll bloody well live when we tell you to live, even though you may be willing to die.”  But once it’s established that the state, not the individual, has the right to make decisions like this over people’s lives, don’t be surprised when the message changes to:  “You’ll bloody well die when we tell you to die, even though you may want to live.”

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February 6, 2003