© 1997 Karen Selick
Flavour of the Month:  Easy-Bake Regulations
An edited version of this article first appeared in the February, 1997 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Flavour of the Month:  Easy-Bake Regulations

Last Remembrance Day found me sitting in an auditorium with hundreds of other Ontario lawyers, learning about the proposed child support guidelines scheduled to come into effect in the next few months.  Justice Minister Allan Rock spoke to us first, his bright red poppy displayed strikingly against his dark suit.  He discussed the philosophy behind the new system and mentioned that the new rules were being implemented largely by regulation, rather than by statute, so that they would be easy to amend. 

There was no perceptible response from the audience to this statement—no outbreak of whispering, no shuffling of feet, no catcalls, no booing, no hissing.  The words slid past into history, and I wondered whether I was the only one in the room to recognize the irony of those words being uttered on that day.

As 11:00 approached, a Remembrance Day ceremony was held.  We stood in silence, reflecting upon the lives that were lost in two wars, supposedly making the world safe for freedom and democracy.

Regular readers of this column know by now that I’m not a big fan of indiscriminate democracy.  I believe there are certain things people must not do to each other, even if a majority of the group is in favour.  If two purse-snatchers allow granny a vote in deciding who gets her handbag, the two-to-one democratic verdict doesn’t stop the incident from being theft.  Nor does the principle change when the numbers get larger. 

Representative democracy has not served us particularly well in preventing such transgressions.  If anything, it has institutionalized them.  Elections have become, as H.L. Mencken put it, "advance auctions of stolen goods."  Or as another wit said, "No man’s life, liberty or property are safe while the legislature is in session."

But bad as they have generally been, legislatures still form part of the bulwark against even worse forms of tyranny.   When a majority government proposes an outrageous new law, parliamentary debate at least provides a chance for the opposition to tell the public exactly what the knaves they so foolishly elected are about to do to them.  Occasionally when the spotlight is shone on some of their nastier bits of work, the knaves retreat like vermin back into the shadows. 

The more obstacles we ordinary citizens can place in the paths of those who would run our lives, the greater will be our opportunity to run our lives ourselves.  We should not lightly give up even the smallest portion of our defences against despotism.

Rock’s amendments to the Divorce Act move parliament one step closer to irrelevancy.  The act now allows the government to prescribe child support levels by regulation.  The draft regulations revealed to date contain major policy changes.   They toss out decades of jurisprudence.  They treat non-custodial parents—mostly fathers--like indistinguishable lumps of dough, waiting to be rolled out and cut down to size by the state cookie cutter. 

It was bad enough that parliament was little more than a rubber stamp for these measures this time around.  Next time around, they won’t even have to be asked.  Already, feminist groups are complaining that the amounts fixed by the guidelines are too low.  With the legislation in place and all power folded into the easy-bake regulations, divorced fathers can expect more frequent and ever bolder raids on their wallets. 

But the Divorce Act is not the only example of the growing tendency to govern by regulation.  On the contrary, regulation seems to be the flavour of the month, if not of the decade.  The Firearms Act, passed at the end of 1995, delegates enormous powers to regulators—powers broad enough to implement major policy changes on gun ownership, not just piddling little administrative changes. 

The new Tobacco Act practically brims over with regulatory powers.  What if future regulators decide they’d like to outlaw tobacco entirely?  Simple.  Section 7 lets them regulate the amounts of various substances that may be contained in tobacco products and emissions.  Just set the standards impossibly high, and bye-bye tobacco.  The anti-smoking lobbyists must already be filling up their appointment books with lunch engagements with Ministry of Health officials.

What’s next—taxation by regulation?  If we can make divorced men hand over money to "the ex" according to a table cooked up by a bunch of bureaucrats, why not deal with taxpayers the same way?  Anyone who has ever cracked open the Income Tax Act knows that most politicians couldn’t possibly understand the gobbledygook they’ve enacted there.  Only a handful of people in the country do.   Why not let the backroom boys decide what’s to be taxed and at what rate, and dispense with the pretense that we, the people, are governing?

But perhaps it’s foolish to make this suggestion even in jest.  One of the most frightening aspects of the regulatory coup we’ve experienced is the boldness with which those in power have seized upon every opportunity to expand state control.  Equally frightening is the utter complacency with which citizens have accepted each new encroachment on their freedom.

Half a century after our last war for freedom, we stand at Remembrance Day ceremonies and can’t even recognize the loss of that precious thing we are supposed to be eternally vigilant about.

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June 15, 2000