Saturday, November 29, 2008
What "legal" means
There seems to be a lot of confusion here in Victoria, and at city council, about what the word "legal" means.
It is the duty of the police to enforce the law, and others to conform to it. BUT:
The law consists of the Constitution, Charter of Rights, previous legal decisions (precedent), common law, Tort (civil) law, and - according to the Nuremberg tribunal - supervening international legal and moral norms as well. TOGETHER these constitute the law. (Albeit the last is contradicted by the Notwithstanding Clause of the Canadian Constitution, which clause could be invoked for anything at all including the mass murder of people with red hair, elimination of free speech, or a new holocaust - all these would be superficially "legally" in Canada if the Notwithstanding Clause were invoked.)
A statute or bylaw may declare night day and day night, but that doesn't make it so. Policework is not merely a game of "Simon Says" where we substitute "City Council" for "Simon." That game isn't legal in Canada. The latest whim of council isn't law unless it conforms to the Charter of Rights, Constitution, etc. Not for the police, nor anyone else. Neither is it enough to say that whatever the courts have not specifically ruled out in previous decisions is therefore legal should a brand-new bylaw declare it so. There's no principle in law that everything is legal "until it is specifically ruled against by a judge." (This is the equivalent of "let's just do it until we get caught" or "it's legal until we get caught." But, no it ain't.)
In summary: "I was just obeying orders" doesn't remove culpability from authorities, post-WWII, or according to Canadian law.
Where the police have every reason to suspect that law and bylaw might conflict, the legal course is instead to set up a test case, with the cooperation of those affected where possible (a "collusive action"); and to otherwise suspend any enforcement until the courts have ruled on that test case.
The police, who are in an increasingly difficult position, have been very ill-used by Council and by their own management as tools to break the laws. This taints the reputation and effectiveness of the police generally, diverts them from the duties they were trained for, and make any future cooperation between the homeless community and law enforcement officials extremely difficult - yet that cooperation must eventually come about, for everyone's sake. Nevermind what you see on the TV show CSI, police have always relied on the community to do the bulk of the work in discovering, reporting and providing the evidence to enforce the law. This will have to be true for the homeless community as well in the future, but nothing could create a larger obstacle to this than years of directed, systematic law-breaking by the people entrusted and paid to maintain the law.
The question is, why have the police decided to be such thorough (and culpable) codependents? It may be that both they and the City Council believe that intimidation and some degree of cruelty and lawlessness by the police will discourage homelessness here, or at least, discourage the homeless from moving to Victoria. Where law isn't sufficient, skirting the law or simply breaking it, is the next resource. Anyone can understand the temptation to grasp at simple solutions for growing, and frightening, problems, if not the contempt for the law. Extra homeless people in Victoria are an inconvenience for everyone including the homeless people already here, but...
Given the compulsory nature of most homelessness and, for that matter, the uniquely kind weather of Victoria within Canada and B.C. (although most homeless are not newcomers), this experiment in twisting the arms of the victims again and again is absolutely futile. Sooner or later, council must come to understand this, however distressing it may to them to give up on the dream of violently pushing away homelessness must be to the more comfortable. If this was going to happen, it would have happened - the police were freer in previous years to act illegally (and did) than they can possibly be in the years to come now that the scrutiny of the courts has been aroused.
I would not wish to be a police officer in Victoria, or nearly anywhere else in North America, today. I am grateful that many are willing to serve as peace officers. But I earnestly appeal, with emotion that cannot enter into this text, that the police, and in particular their management, look to their own interests, and their own future interests with regard to the questions pertaining to homelessness. The council has thoroughly betrayed those interests, and the police cannot act too quickly to ensure that their officers now strictly obey the whole of the law, and begin to rebuild the reputation that they must have to do their job (and to do it more easily and in less peril) within and without the homeless community.
I might humbly submit that in order to commence this new approach, the police should immediately cease some techniques they now employ to evade accountability: Primarily, stop using volunteers merely dressed as police at the front desk who don't actually know the law. This current practice allows citizens to believe they have made a report to the police by talking to the front desk, or that they have advice from authority, when neither is true. Moreover no record of any kind is made of their report unless the volunteer on their own sole authority decides to tell them how to make an actual report, in writing, on the correct form. This is a great way to keep crime stats down, but thoroughly mischievous, as well, and calculated to bring the police into disrepute. Everyone showing up at the desk can be given a number and one sentence description of their report (anonymous or not) which is reported and retained by the police for future reference. Similarly re phone reports, everyone phoning in has to be given a report number and the call be databased, even if with a one-sentence description, and even if the report was anonymous. Now, my experience has been that phone operators seem to be trained to do everything they can, including balding lying about what the law is, in order to avoid any report being recorded if at all possible. I don't doubt that the police are underfunded, but this isn't the way to deal with that. It might even be that actually recording all crime reports would result in more funding.
by Russell Johnston
http://confusioncomplete.blogspot.com/2008/11/what-legal-means.html
It is the duty of the police to enforce the law, and others to conform to it. BUT:
The law consists of the Constitution, Charter of Rights, previous legal decisions (precedent), common law, Tort (civil) law, and - according to the Nuremberg tribunal - supervening international legal and moral norms as well. TOGETHER these constitute the law. (Albeit the last is contradicted by the Notwithstanding Clause of the Canadian Constitution, which clause could be invoked for anything at all including the mass murder of people with red hair, elimination of free speech, or a new holocaust - all these would be superficially "legally" in Canada if the Notwithstanding Clause were invoked.)
A statute or bylaw may declare night day and day night, but that doesn't make it so. Policework is not merely a game of "Simon Says" where we substitute "City Council" for "Simon." That game isn't legal in Canada. The latest whim of council isn't law unless it conforms to the Charter of Rights, Constitution, etc. Not for the police, nor anyone else. Neither is it enough to say that whatever the courts have not specifically ruled out in previous decisions is therefore legal should a brand-new bylaw declare it so. There's no principle in law that everything is legal "until it is specifically ruled against by a judge." (This is the equivalent of "let's just do it until we get caught" or "it's legal until we get caught." But, no it ain't.)
In summary: "I was just obeying orders" doesn't remove culpability from authorities, post-WWII, or according to Canadian law.
Where the police have every reason to suspect that law and bylaw might conflict, the legal course is instead to set up a test case, with the cooperation of those affected where possible (a "collusive action"); and to otherwise suspend any enforcement until the courts have ruled on that test case.
The police, who are in an increasingly difficult position, have been very ill-used by Council and by their own management as tools to break the laws. This taints the reputation and effectiveness of the police generally, diverts them from the duties they were trained for, and make any future cooperation between the homeless community and law enforcement officials extremely difficult - yet that cooperation must eventually come about, for everyone's sake. Nevermind what you see on the TV show CSI, police have always relied on the community to do the bulk of the work in discovering, reporting and providing the evidence to enforce the law. This will have to be true for the homeless community as well in the future, but nothing could create a larger obstacle to this than years of directed, systematic law-breaking by the people entrusted and paid to maintain the law.
The question is, why have the police decided to be such thorough (and culpable) codependents? It may be that both they and the City Council believe that intimidation and some degree of cruelty and lawlessness by the police will discourage homelessness here, or at least, discourage the homeless from moving to Victoria. Where law isn't sufficient, skirting the law or simply breaking it, is the next resource. Anyone can understand the temptation to grasp at simple solutions for growing, and frightening, problems, if not the contempt for the law. Extra homeless people in Victoria are an inconvenience for everyone including the homeless people already here, but...
Given the compulsory nature of most homelessness and, for that matter, the uniquely kind weather of Victoria within Canada and B.C. (although most homeless are not newcomers), this experiment in twisting the arms of the victims again and again is absolutely futile. Sooner or later, council must come to understand this, however distressing it may to them to give up on the dream of violently pushing away homelessness must be to the more comfortable. If this was going to happen, it would have happened - the police were freer in previous years to act illegally (and did) than they can possibly be in the years to come now that the scrutiny of the courts has been aroused.
I would not wish to be a police officer in Victoria, or nearly anywhere else in North America, today. I am grateful that many are willing to serve as peace officers. But I earnestly appeal, with emotion that cannot enter into this text, that the police, and in particular their management, look to their own interests, and their own future interests with regard to the questions pertaining to homelessness. The council has thoroughly betrayed those interests, and the police cannot act too quickly to ensure that their officers now strictly obey the whole of the law, and begin to rebuild the reputation that they must have to do their job (and to do it more easily and in less peril) within and without the homeless community.
I might humbly submit that in order to commence this new approach, the police should immediately cease some techniques they now employ to evade accountability: Primarily, stop using volunteers merely dressed as police at the front desk who don't actually know the law. This current practice allows citizens to believe they have made a report to the police by talking to the front desk, or that they have advice from authority, when neither is true. Moreover no record of any kind is made of their report unless the volunteer on their own sole authority decides to tell them how to make an actual report, in writing, on the correct form. This is a great way to keep crime stats down, but thoroughly mischievous, as well, and calculated to bring the police into disrepute. Everyone showing up at the desk can be given a number and one sentence description of their report (anonymous or not) which is reported and retained by the police for future reference. Similarly re phone reports, everyone phoning in has to be given a report number and the call be databased, even if with a one-sentence description, and even if the report was anonymous. Now, my experience has been that phone operators seem to be trained to do everything they can, including balding lying about what the law is, in order to avoid any report being recorded if at all possible. I don't doubt that the police are underfunded, but this isn't the way to deal with that. It might even be that actually recording all crime reports would result in more funding.
by Russell Johnston
http://confusioncomplete.blogspot.com/2008/11/what-legal-means.html
