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Too Much Law<br>Too Little Justice

Beryl P. Wajsman

30 October 2004

 “When the state is most corrupt, the laws are most multiplied.”

~ Tacitus


“How long soever it hath continued, if it be against reason, it is of no force in law.”

~ Sir Edward Coke, “Institutes”


When the first Earl of Masefield, William Murray, exclaimed Fiat justitita, ruat coelum--let justice be done though the heavens fall” he was fighting for the justice of equitable consideration grounded in the individual rights of man based on natural law that is the proudest legacy of liberalism. Words for the ages. Today, we in Canada, are being inundated by legal assaults masquerading as liberalism but that are in reality nothing more than the imposition of constructs, and constraints, of social engineering driven by the proponents of politically correct popular myths.


This past week the Supreme Court of Canada ruled in the Tessling decision that police helicopter surveillance using infrared devices to detect activities in a private home was not in contravention of constitutional protections against unreasonable search and seizure. Furthermore it stated that this did not violate the section 8 Charter guarantees of protection of “personal areas of autonomy”. The Court based its ruling on the tenuous argument that “in its current state of development” infrared intrusions could not “permit inferences as to specific activity within a building”. It could only measure heat being generated. This the court considered “reasonable”. The great threat to the public the police were trying to detect was the growing of marijuana plants by Mr. Tessling inside his house. The overhead lighting needed for cultivation generated the heat.


The real threat comes not from the Mr. Tesslings among us but from legislators and regulators who persist in exercising control over matters that should not be the concern of the state. They encourage the growth of government intrusions into private prerogatives and permit the slow undoing of basic liberties. Aside from the issue of the legitimacy of public authority restricting victimless forms of conduct, the Court itself recognized that use of this type of technology in a more sophisticated state could constitute a violation of privacy protections. Given that American military radar with the capacity to produce images through walls will soon be available to police departments, it is unconscionable that the Supreme Court opened the door to this type of oversight at all.


The timing of the Tessling decision is brought into particularly stark relief because just two weeks ago Canadian Privacy Commissioner Jennifer Stoddard slammed the use of workplace cameras by an Internet service provider to spy on its staff. Though she has no law-ordering powers her findings can be enforced by the Federal Court of Canada. Her statement that the use of cameras was a “fundamental breach of the right of privacy of employees” has been called one of the most “forthcoming” decisions in this area by many legal experts. She relied on the very same section 8 Charter protection of privacy that the Supreme Court in Tessling failed to uphold.


It is to be hoped that Ms. Stoddart’s views will become more representative of this government than that of the Court. For Tessling was just the latest example of a troubling trend toward suffocating rule and regulation in this country





Some seven months ago the Supreme Court, in the popularly labeled “Gag Law” judgment, made it illegal for any group other than a political party to spend more than $150,000 on advertising during an election campaign. Bill C-245, passed just before the Federal election call, makes it a crime to criticize homosexuality if done from a religious perspective. Quebec Bill 143, that came into force on June 1st, amended the Labor Code by making “psychological harassment” actionable. Montreal’s Police recently installed street-level surveillance cameras in the Latin Quarter ostensibly to curtail individual sales and purchases of illicit drugs. The Neron Decision put the entire fifth estate on notice by supporting the somewhat spurious concept of “defamatory innuendo”. Finally we saw the appointment of Justice Rosalie Abella, champion of quotas and collective—rather than individual—rights, appointed to the Supreme Court.


A Member of Parliament addressing an Institute conference once warned that Canada is a democracy but only a “controlled” one. Even a cursory examination reveals that he was right. Over the past twenty years we have seen the growth of collective social experimentation at the expense of the protection of individual civil expression, and protection, which formed the heart of the Charter revolution. A revolution that was meant to expand the degree of freedom and dignity that is the basic entitlement of each citizen of a liberal democracy.  


Coercions of, and restrictions to, our freedoms of expression, thought and assembly compromise the supremacy of individual sovereignty. That sovereignty is our only surety for the national culture of conscience we all seek to build. For only when laws are grounded in foundational principles respecting the primacy of the natural liberties of one, can the many ever hope for comfort.  


Today’s overactive lawmakers and judges intrude into our lives in unparalleled and unprecedented manners. And they do so for the worse not for better. They replace robust battlegrounds of competitive ideas with the parched prejudices of social orthodoxies. They test the limits of our tolerance under the pretext of political correctness. And in so doing create a citizenry that lives in fearful timidity of state rape.


A timidity that has led Canadians into impotent acceptance of open abuse of public prerogative. We have seen it in Federal Ministers pre-judging citizens’ guilt in open pronouncements; in unsanctioned RCMP raids on reporters homes; in Revenue departments compromising longstanding privacy protections on taxpayers files through information exchange; in CRTC judgments deciding what words we are allowed to hear on radio; in government bans on reception of foreign satellite television signals and even in personal travel information being passed by the airlines into permanent CCRA files.


This mentality of obsequious obedience even permeated the ranks of the Natural Governing Party this past election when Liberal candidates signed waivers that nullified their own privacy rights with respect to party use of personal information. Recently, the Federal government let it be known that it is considering legislation mandating roadside drug testing even if marijuana use and possession is decriminalized. One straitjacket is removed and another is ready to be fitted. Canadians are in danger, in Andrew Coyne’s succinct formulation, of succumbing to a “totalitarian mindset made plain.”


The heart of the matter is whether in a representative democracy the curtailing of freedoms and the regulation of non-invasive actions can be reconciled with a state’s primordial obligation of protecting, and expanding, the amount of liberty and dignity which all citizens have a right to demand. With so many  laws so badly drawn. With others intentionally vague meant to do nothing more than act as fodder for election ads, the people are at the mercy of elected officials who are always relieved to let the courts sort matters out as long as they can get some publicity. This does not meet their duty.


So long as modern life grows more complex demands on the law, and by the law, will continue to increase. That much is inevitable. And as George Bernard Shaw said, “Liberty demands responsibility, that is why so many  dread it.” We must not dread it. We must embrace it. And demonstrate the requisite vigilance to protect it.





The ability to live free is not given equally to every man nor to every people. But Canadians have paid the price for it through a century of blood and tears. We now need to marshal our resolve to assure that individual expression and individual conscience never fall victim to a two-edged sword of craft and oppression. For as Edmund Burke warned “When law and liberty are separated neither is safe.”











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