Thought experiment - Exec/Legislative & Fed/Prov relations in our system

[ballz]

The whole marijuana thing, and Canada's inability to legalize it due to agreements with other countries (something I truly can't understand), has popped a question in my head. I genuinely have no idea of that answers to these questions / thoughts, and it makes me curious.

In our system, the Executive and Legislative branch is controlled by the same group of people. The legislative branch passes legislation, while the executive branch executes / enforces it. In the case of the drug war, the legislative branch has passed legislation saying marijuana is against the CCC, yada yada.

So, what (hypothetically, of course) happens when the executive branch fails to follow the orders of the legislative branch. And, more importantly, what if the legislative branch doesn't care? What if the executive branch didn't enforce marijuana laws (such as was happening in Vancouver, I believe) but the legislative branch didn't care? Technically, marijuana remains illegal but without enforcement, rules don't really exist.

This brings me to the next thought experiment... Federal / Provincial relations. Not all places use the RCMP, they use provincial or municipal police. What are the in's and out's on say, the province of Newfoundland telling the Royal Newfoundland Constabulary not to enforce law "x, y, z," or the city of Fredericton telling the Fredericton Police force the same thing? Given that provinces only lease the RCMP's services, and some don't, or don't for certain areas, can the Federal government send in the RCMP to St. John's, NL, even though that's the RNC's jurisdiction, because the feds aren't happy that the province isn't enforcing certain laws?

If anyone can provide insight on these matters, I'd be very happy to hear.

 

[Rocky Mountains]

In Chretien days, when the Alberta government said that Alberta prosecutors would not enforce some firearms legislation, the federal government indicated that federal prosecutors would do so.  I don't know what was the ultimate result.  Harper, on reaching power, declared by executive order an amnesty on prosecution for long-gun possession.  Obama, always unwilling to make a deal, rules by executive order.

 

[Edward Campbell]

At the risk of grossly oversimplifying: writing the criminal code is a federal, legislative responsibility §91.27. In practice the justice minister but, in theory, any MP can introduce a bill and parliament can pass any bill if members decide to do so. Enforcement of laws in a provincial responsibility §92.14. The provincial attorney general is the chief law enforcement officer. Even when a province uses the RCMP as its provincial police they answer to the provincial attorney general, not the federal solicitor general, for 'guidance' (orders) on law enforcement. Isn't the Constitution fun?  :

 

[a_majoor]

The ultimate result of non enforcement or selective enforcement of laws is to invalidate the entire concept of "Rule of Law". Laws which are selectively enforced will be seen as ways to reward and punish people for political or personal reasons, and the idea of following laws will also be weakened to a large degree since no one will be able to effectively predict who will or will not be prosecuted.

Some laws tend to be "self enforcing". Few people break traffic regulations because the consequences can be immediate and often fatal. You don't need a cop or a judge to tell you that running a red light or pulling out in the path of an ongoing truck isn't a good idea (well, at least most of the time). The more arcane the reference or detached from your day to day lives laws become, the greater the temptation to ignore them, or to bend the application (remember when lots of houses sprouted satelite dishes set for American Satellite TV?).

The realm of uncertainty becomes even more problematic in terms of things like corporate law and regulation. People are unwilling to make investments or take chances on new products and ideas if the regulatory environment is turbulent, would you want to risk losing investments because you may or may not run afoul of some law or regulation? Long term investments and contracts thrive on having certainty, inducing uncertainty brings about an unwillingness to undertake long term investment.

Of course a nation does not descend into anarchy overnight. It takes time to build strong legal, social and cultural structures to define a society, and the stronger they are, the better able to withstand attack or erosion. Deliberatly weakening institutions in this manner has all kinds of bad outcomes (just look at modern nation-States which have weak or non existant institutions, and ask yourself if you want to go in that direction).

 

[ballz]

The ultimate result of non enforcement or selective enforcement of laws is to invalidate the entire concept of "Rule of Law". Laws which are selectively enforced will be seen as ways to reward and punish people for political or personal reasons, and the idea of following laws will also be weakened to a large degree since no one will be able to effectively predict who will or will not be prosecuted.

Some laws tend to be "self enforcing". Few people break traffic regulations because the consequences can be immediate and often fatal. You don't need a cop or a judge to tell you that running a red light or pulling out in the path of an ongoing truck isn't a good idea (well, at least most of the time). The more arcane the reference or detached from your day to day lives laws become, the greater the temptation to ignore them, or to bend the application (remember when lots of houses sprouted satelite dishes set for American Satellite TV?).

The realm of uncertainty becomes even more problematic in terms of things like corporate law and regulation. People are unwilling to make investments or take chances on new products and ideas if the regulatory environment is turbulent, would you want to risk losing investments because you may or may not run afoul of some law or regulation? Long term investments and contracts thrive on having certainty, inducing uncertainty brings about an unwillingness to undertake long term investment.

Of course a nation does not descend into anarchy overnight. It takes time to build strong legal, social and cultural structures to define a society, and the stronger they are, the better able to withstand attack or erosion. Deliberatly weakening institutions in this manner has all kinds of bad outcomes (just look at modern nation-States which have weak or non existant institutions, and ask yourself if you want to go in that direction).

Those are all great and valid points. However, I guess what my question is... what does or can the federal government do if say, Newfoundland, decides to stop charging people for marijuana possession / trafficking?

And at the same time, what can be done if the legislative branch tells the executive branch, at any level of government, to do the same thing. A good example is the firearms amnesty.... so Trudeau can't legalize marijuana possession... what if he grants amnesty? What should or can be done?

I suppose a better example of amnesty is if the legislative branch tells the executive branch to stop prosecuting people for fraud? Now that is something Canadians would have a pickle with, but the same group of people control the legislative and executive branches in our system. Is there anything the judicial branch could do?

At the risk of grossly oversimplifying: writing the criminal code is a federal, legislative responsibility §91.27. In practice the justice minister but, in theory, any MP can introduce a bill and parliament can pass any bill if members decide to do so. Enforcement of laws in a provincial responsibility §92.14. The provincial attorney general is the chief law enforcement officer. Even when a province uses the RCMP as its provincial police they answer to the provincial attorney general, not the federal solicitor general, for 'guidance' (orders) on law enforcement. Isn't the Constitution fun?  :

The Constitution is fun! So then what can the federal government do if, like the example given above, the province says "nope, we aren't enforcing this silly long-gun registry." ?

 

[Brad Sallows]

Basically the same answer applies to everything.  Where nullification occurs, those desiring enforcement will either have to pay the costs of enforcement, settle for partial enforcement, or give up enforcement.  For reasons mentioned and alluded to by Thucydides, the middle option is the worst possible choice.

Laws that legislate basic common sense and morality don't need a lot of active enforcement, and the infractions are mostly tolerable.  They are the legal equivalent of "Doctrine exists to jog the mind of the thinking soldier".

Contract law and everything of a similar nature requires active and diligent enforcement, or the increased transaction costs of day-to-day life - essentially, the breakdown of trust and good faith  - will degrade our lifestyles immeasurably.

Nanny-type laws actively militate against enforcement of more important things.  A billion or two dollars for the firearm registry might seem like a lot of wasted money; the value of all the man-hours diverted from other potential uses was probably several times larger.  And multiply that several times for various levels of "wars on drugs".

 

[Eaglelord17]

There are currently laws which are selectively enforced in Canada. One example is the other day I was in the dollar store and I saw about a dozen prohibited devices being sold. They were toy blowguns and nunchuks, both of which technically carry the same penalty as illegally possessing a fully automatic firearm. Now, from a realistic standpoint, those items are not very dangerous at all, that being said legally they can net you years in jail. On top of that, to be imported into Canada is also illegal (which the dollar store does by likely the thousands).

This is just one example, and I am sure there are other laws out there which are the same way. We need politicians to go through the old laws and scrap the stupid ones. Maybe that would occupy there time from making new useless laws.

 

[Rocky Mountains]

There are currently laws which are selectively enforced in Canada. One example is the other day I was in the dollar store and I saw about a dozen prohibited devices being sold. They were toy blowguns and nunchuks, both of which technically carry the same penalty as illegally possessing a fully automatic firearm.

I suspect the police would take an interest in said items and the store owner could go to jail for possession and selling of prohibited weapons.  If they are truly toys like nerf nunchuks they would be okay but fully functioning items would be problematic were the police to be aware.  This isn't selective enforcement.

That isn't to say that prohibited status for anything seen in Asian martial arts films is beyond stupid considering that knives and baseball bats are legal.

 

[brihard]

Speaking from the coal face, 'selective enforcement' is often, in actuaity, just triage.

Criminal activty at all times greatly exceeds the capacity of the police to detect, prevent, and interrupt it, and the capacity of the courts to prosecute it. Given finite man hours, policing becomes a zero sum game. Let's say I arrest some drunk idiot for being a drunk idiot in a no drunk idiot zone. He's hammered and likely to cause further issues, so I drunk tank him. The grounds for my arrest might be the territorial liquor act, or if there is a third party complainant, it may be criminal code S.175 Causing A Disturbance. Let's say I search him and find a small baggy of weed in his pocket for personal use. It gets seized.

On the face of it, there's criminal behaviour here. I could commit myself to the couple hours of work to send him to court for causing a disturbance and for possession of a controlled substance. But that would pull me off the road for a few hours. I could alternatively satisfy myself that he gets a night in the clink, an uncomfortable sleep, and loses his weed. And then I can spend a few more hours on the road - maybe sit outside the bars at closing to prevent fights and get a few more people into taxi cabs instead of behind the wheel (Peel's principles- the effectiveness of a police force is determined by crimes not committed, not by thsoe detected and prosecuted). Or I could go on patrol and try to snag a drunk driver before he smokes someone. Or I could put a bit of extra time into an ongoing investigation, do a bit more digging than I would otherwise have been able to, and help a more important file get a better outcome in court. That's all decisions that I make on a purely individual, arbitrary basis each shift. I'm trusted by my supervisor to prioritize my day to day workload. Sometimes we might dedicate ourselves to something specific - a few hours of impaired driving check stops, for instance - or a priority investigation might command our time and take us off the road, but generally we juggle our own time, at least where I am.

That's sort of a microcosm. Step it up now to a larger investigative unit. Say a drug team working in Vancouver. They could go after and absolutely hammer a bunch of marijuana dispensaries; nice easy straightforward investigations, charges easily laid and prosecuted... Frankly minimal real impact on society. Not that it doesnt matter, but again, triage. Alternatively, they knuckle down, work some of their human sources a bit harder, do some targeted stops, and begin developing actionable intelligence that ends up breaking up the middle level of a Fentanyl distribution network. Probably a couple people go to jail who have distributed something that has caused overdose deaths.

At the absolute macro level we have seen within Canada the wholesale reallocation of thousands of bodies away form major organized crime investigations towards national security investigations.  These kinds of priorities are decided at governmental level.

Every day in policing, right down to the individual officer, the question is constantly 'is the juice worth the squeeze'? You're always robbing Peter to pay Paul. You have to decide what you're going to work, and what can be resolved / made to go away. And yup, that means a lot of people get away with a lot of stuff that is illegal. Nature of the beast. Our society cannot afford the kind of policing that would change this. Frankly we don't want to live in that society anyway- police discretion allows for a lot of issues to be resolved without it being necessary to go criminal on something. We always have to work the problem, and the solution is not always to be found in a judicial approach.

 

[Eaglelord17]

I suspect the police would take an interest in said items and the store owner could go to jail for possession and selling of prohibited weapons.  If they are truly toys like nerf nunchuks they would be okay but fully functioning items would be problematic were the police to be aware.  This isn't selective enforcement.

That isn't to say that prohibited status for anything seen in Asian martial arts films is beyond stupid considering that knives and baseball bats are legal.

It is stupid, however it is the law. What is the difference between a toy and a prohibited device? In this case none. There is no provision for toys to be ok in the criminal system, and those toys still fit the exact description of the prohibited device according to the law. In some cases the law is ignored, or the cops are unaware (which is no excuse, ignorance of the law isn't a excuse for the person breaking it, so why should it be for the person enforcing it).

 

[brihard]

It is stupid, however it is the law. What is the difference between a toy and a prohibited device? In this case none. There is no provision for toys to be ok in the criminal system, and those toys still fit the exact description of the prohibited device according to the law. In some cases the law is ignored, or the cops are unaware (which is no excuse, ignorance of the law isn't a excuse for the person breaking it, so why should it be for the person enforcing it).

Am I going to raid dollar stores selling crappy plastic nunchakus, or am I going to work on domestic driving investigations, drunk driving enforcement, probation breaches and the like?

There's a bridge between theory and reality that you need to cross.

 

[Eaglelord17]

Am I going to raid dollar stores selling crappy plastic nunchakus, or am I going to work on domestic driving investigations, drunk driving enforcement, probation breaches and the like?

There's a bridge between theory and reality that you need to cross.

I understand the bridge, and I have crossed it along time ago. I am not the one creating the laws. Based on what the sentence for possession of these items are, the government seems to think it is much more serious than it is. The fact is cops are not there to judge the law, only to enforce it. If the law is stupid it should be removed. There should be no leeway in regards to what is enforced or not. That is how you end up with a lack of respect for the law, and the people who enforce it.

Do I think there is any danger in regards to these plastic toys? No I don't. Would the average person think there is a danger? No they wouldn't. So why then is it illegal, and why does it carry the same penalty as illegal possession of a sawed-off shotgun?

 

[The Bread Guy]

... There should be no leeway in regards to what is enforced or not. That is how you end up with a lack of respect for the law, and the people who enforce it ...

And you've never, say, gotten off with a warning instead of a ticket and/or a fine?  And if you have, has your respect for the law diminished?  Or did you say, "no, officer, you must ticket me in the interests of the rule of law in this country"?

As they say, when you try to protect everything, you're not really defending anything very well.

 

[brihard]

I understand the bridge, and I have crossed it along time ago. I am not the one creating the laws. Based on what the sentence for possession of these items are, the government seems to think it is much more serious than it is. The fact is cops are not there to judge the law, only to enforce it. If the law is stupid it should be removed. There should be no leeway in regards to what is enforced or not. That is how you end up with a lack of respect for the law, and the people who enforce it.

Do I think there is any danger in regards to these plastic toys? No I don't. Would the average person think there is a danger? No they wouldn't. So why then is it illegal, and why does it carry the same penalty as illegal possession of a sawed-off shotgun?

You cannot say "There should be no leeway", but also claim to have 'crossed the bridge' between theory and reality. There is leeway in a great many matters. You're taking an absolutist, legalist view of how the law shoul dbe applied. Your claim, to remain consistent, must be that every law is 100% enforced 100% of the time. Besides being manifestly impractical, that's also absurd from the standpoint of what the *point* of law is. Not every contravention of the law requires punitive consequence if the public policy objectives can be otherwise satisfied, or if pursuing said punishment would impugn efforts to pursue other higher priority mattes.

I pull people over very frequently for minor traffic infractions, for instance, but seldom do I find it necessary to write a ticket. I could hand out coupons for everyone who exceeds the speed limit by any amount or rolls a stop to any degree. Or, satisfied that they're licensed, registered, insured, and sober - and that their contravention of the law wasn't manifestly idiotic or dangerous - I can carry on with other priority matters.

There is so much enforceable law breaking going on in plain sight that police would never make it more than a few blocks from the office before they were buried in paperwork and their time completely consumed by court appearances.  Selectivity of enforcement is necessary for the system to work at all.

 

[a_majoor]

Truthfully, much of this could be resolved by a though overhaul of the Criminal Code and various regulations with the force of law. Stripping out old, outdated, redundant or otherwise laws and regulations, and simplifying others so they are in fact understandable by a "reasonable man" would do wonders for the system.

There is a school of thought that the true reason for the blizzard of laws and regulations isn't "just" to codify behaviours, but to actively set minefields and traps for the unwary, to be triggered at the pleasure of the political class. A common trope is "people break three federal laws or regulations before breakfast", and if the system truly is so closely confining and people so truly unaware, then using the law and legal system as a bludgeon against political and personal opponents, or to exact revenge through administrative means (the process is the punishment) become a very attractive option. Few people have the time and resources to fight Big Brother in court.

Ayn Rand spelled out the extreme version of this idea:

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.”

As for the thought experiment at the beginning of the thread, it eventually boils down to resources and principle. Is a Province or the Federal Government so committed in principle to whatever the law in questions states that they will expend resources to enforce it? Given the rather porus nature of Canada's system, the Federal Government may lay claim to something and step in even if the issue is Provincial according to the BNA. Other examples, like the gun registry, suggest that the Federal Government will move to enforce their prerogatives if a Province will not enforce a Federal law.

 

[ballz]

Well, we've gone down a completely different rabbit hole than I intended, but hey, this is fun and interesting as well.

I think Eaglelord is focussed a bit on firearms laws, and I can't blame him for being a bit miffed about them. When I hear of an LEO talking about using their discretion, as you did Brihard, I can't help but think of all the law-abiding firearm owners that did nothing wrong and no one used any discretion, and no one shied away from the hours of paperwork it would take, to ruin this guy's life for not having a trigger lock on his shotgun.

But I don't want this to turn into a firearms legislation debate either. I was actually more curious about the drug wars. Quite frankly, I think making possession / consumption of all those things illegal to be wrong, and I think locking people up for it to be wrong. When I think of police officers having to prioritize which laws they will enforce because of the lack of resources, I agree with Eaglelord that perhaps there are a lot of stupid laws we could get rid of to solve this problem, or at least mitigate it.

 

[Edward Campbell]

I understand the bridge, and I have crossed it along time ago. I am not the one creating the laws. Based on what the sentence for possession of these items are, the government seems to think it is much more serious than it is. The fact is cops are not there to judge the law, only to enforce it. If the law is stupid it should be removed. There should be no leeway in regards to what is enforced or not. That is how you end up with a lack of respect for the law, and the people who enforce it.

Do I think there is any danger in regards to these plastic toys? No I don't. Would the average person think there is a danger? No they wouldn't. So why then is it illegal, and why does it carry the same penalty as illegal possession of a sawed-off shotgun?

I would agree, Eaglelord, if the House of Commons worked day and night, for years, to comb through the Criminal Code, year after year removing all the old, outdated provisions and revising and updating the ones that remain to take account of societal changes, recent court decisions and so on. Of course, in all likelihood, we haven't elected enough lawyers to do the job well enough on that committee, and all the other laws and policies would be made by the non-lawyers who would also be overwhelmed with work.

Absent that, I guess I'll have to be happy (content, anyway) to accept a lot of police (and attorney general and crown prosecutor) discretion re: which laws to enforce, and how.

 

[chrisf]

[whoops, wrong thread]

 

[Oldgateboatdriver]

I would agree, Eaglelord, if the House of Commons worked day and night, for years, to comb through the Criminal Code, year after year removing all the old, outdated provisions and revising and updating the ones that remain to take account of societal changes, recent court decisions and so on. Of course, in all likelihood, we haven't elected enough lawyers to do the job well enough on that committee, and all the other laws and policies would be made by the non-lawyers who would also be overwhelmed with work.

Absent that, I guess I'll have to be happy (content, anyway) to accept a lot of police (and attorney general and crown prosecutor) discretion re: which laws to enforce, and how.

Actually ERC, until the Chretien budget cuts came along right after the Mulroney era and disband it, there was a little group of people in the Justice department which worked with some academics and members o the Bar of various provinces. The were known as the Law Reform Commission of Canada. They specifically pore through the existing standing laws of Canada to propose their modernization, both in paring that which served no more purpose (such as mandatory horse attach ring outside hotels -still on the book BTW) in our modern world, or to propose their redrafting in more modern English and French so they would be readily understandable to people).

 

[Eaglelord17]

Basically my argument is simply that if the law is useless it shouldn't exist. If the law has become outdated, it is the job of the House of Commons or the Senate to have it repealed or updated. There is so much in the criminal code which could simply be removed and it wouldn't have a effect (for example, look at the laws on corrupting morals, quite a few of those could be removed without issue).

There are currently laws in the books that are not enforced yet not removed simply because they like to have them or are afraid if they are applied then they will be struck down. Much like how the Polygamy laws were not applied until very recently in BC because they were afraid if they were applied then they would be struck down due to charter challenge.

I wasn't trying to focus on firearms laws, I was just trying to use a example of the laws I am aware of and are selectively enforced.