bmxninja357 wrote:and to answer your question about the security of the person i do not believe it to be a tradable, financial instrument of some type. my belief is that it is the right to have the security of the rights afforded persons, that wasn't fully afforded certain groups in 'civilized' society like canada. (think women being able to vote, freedom of or from religion, the rights of gay folks, etc.). everyone has their person and the rights and duties that come with that securely. but i must add that that is solely my opinion.
Thanks for the clarification on the “security of the person”. The ‘protected rights’ component you describe I think parallels the manner in which the Supreme Court of Canada has defined that passage in
Charter, s. 7.
I was quite interested to see you mention “duties” as well, because that is not the way I am used to people expressing the effect of legal personagehood, but I don’t think it’s by any means inappropriate. That’s just a blind spot on my part – I’m used to seeing the "security" language used in a
Charter context, which is where the language is ‘defensive’, rather than leading to obligation.
bmxninja357 wrote:... i am opposed to how taxes are spent, the rates of taxation (from what i understand of them) and the ability of those with a lot of money, or large corporations, to seemingly dance around having to pay their fair share. and as usual, i would be more for laws that can punish being written in a fashion the common man could understand without having to pay someone to do it for ya. and i think i would be more supportive of a flat tax. but that could all be simply my lack of understanding of things. taxes seem to be a complex topic and i look forward to furrowing my unibrow in a vain attempt to understand the subject.
Burnaby49 is the expert (guru!) on this but I thought I’d offer a few thoughts. One of the reasons our tax system is so complex is that historically governments have tried to use taxation as a mechanism to affect social behavior. A great example are RRSPs - create a tax break for retirement savings and you can nudge people into saving for their retirement. A good idea? Sure! But sometimes ‘social engineering by taxation’ can cause issues.
One is that it brings out the special interest groups – and they all want their own little hook. On the surface, who can argue some of these. Let’s create a tax break for charitable donations. How can that go wrong?
Well, everytime you create one of these loopholes then out come the schemers trying to find ways to manipulate those for less honest results. I’ll nudge Burnaby49 to point to the appropriate threads, but one of the recent wholesale abuses of peoples’ tax obligations has been via abuse of the charity deduction. Insane abuse.
I think it would be better to cut those deductions to the bone, and then reduce tax rates as a whole, but if I were a politician trying to run on that platform I think I’d meet some pretty aggressive lobbyists on the other side.
Oddly, taxation offers probably one of the finest examples of an attempt to simplify a legal apparatus – and its tragic demise. Awhile ago the Feds enacted something called the General Anti-Avoidance Regulation, or GAAR. GAAR was great – a simple rule that would immediately undercut all those attempts by taxpayers – particularly corporations, at gaming the tax system: where a transaction or a series of transactions achieves a reduction, avoidance or deferral of tax, and those transactions or series of transactions are not conducted for any primary purpose other than to obtain a tax benefit, the tax consequences of the such may be invalidated.
Basically, you engage in business or other dealings for no other purpose than to reduce tax? It’s undone – pay your tax.
What a beautiful dream… needless to say, when GAAR got to the Supreme Court of Canada they gutted it. GAAR still exists … but it’s basically toothless. A sad tale.
I hope the Feds try something like that again but realistically the best way to avoid misuse of tax processes is to add yet more provisions to the
Income Tax Act to nullify the sneaky trick. And the
Income Tax Act gets thicker...
I actually disagree with a flat tax structure. I’m in one of the higher tax brackets, and I’m fine paying more. There’s a substantial part of the population for whom a few hundred bucks means a big difference. I’d rather that come from me – I can afford it. Happy about it? No, but I’d rather the load fall on those better able to absorb the hit.
One last point on tax - I prefer a sales tax over income tax. You observed there’s a problem with corporations and taxation. Sales taxes address that – it’s the corporations economic activity that will cause sales tax and government income. Not something that can be sequestered, cancelled out, and so on. I believe most economists agree that is a better structure to generate income, but for some reason it bothers many in the public. Unfortunate.
bmxninja357 wrote:i think most here myself included believe anyone charged with an offence has the right to a vigorous defense. now with the current legislation and questionably written laws with definitions of virtually anything there in coming from several distinct and separate judgements and tradition, without years of legal training and expertise how do i enjoy my right to defend myself?
and the priviledge is the legal representation. legal aid does not seem to be a right as they can deny folks for virtually anything they perceive as an ability to have a vigorous defence by other means. further legal aid can and does seize upon the bail of one who uses their service. for this reason many do not get out thus having little reasonable opportunity to study the necessary acts, statutes, codes, traditions, and other aspects required for understanding the proceeding in the modern courtroom; little own while trying to defend ones self against a highly skilled practitioner of the legal craft.
so all that being said how does the common man actually enjoy the right to be vigorously defended, by himself, if the system is crafted in a fashion making that nearly impossible?
The language usually used in by the Supreme Court of Canada is “full answer and defence”. It’s a combination of knowing the case you face, knowing your options, and knowing enough about the law that you can make a viable, informed decision on how to proceed.
Your concern is well placed, because the presumption is that if you are a person accused of a criminal offence you will get legal advice from a lawyer in some manner or another. Is Legal Aid adequate? No. It helps but it has been crippled by limited funding, and resources are channeled into ‘priority cases’.
One emerging alternative are duty counsel. A number of Canadian Courts now have government funded defence lawyers who are not retained by an accused person but who hang around in typical scenarios where an unrepresented accused comes before the court – for example in bail hearings or provincial court proceedings. They offer a crash course and advice on simple stuff. Is it better than nothing? Yes. Is it a superior answer? No, but it certainly helps to have those lawyers there and available when push comes to shove.
So how do we help make that right to full answer and defence a reality. One way is to make law accessible. I don’t often sing the praises of Canada’s Law Societies, but when CanLII was set up they did it right. It’s an amazingly good resource if one has the time, a bit of background, and can drill through the material. We have had another big win in making law accessible and that is that the Supreme Court of Canada is now writing a lot less like pompous British Law Lords and more to an audience that includes anybody. Are they there yet? No, but a lot of modern Supreme Court of Canada decisions are a primer that many people can read on a subject and understand a lot about the rules.
If I actually had some authority (ha!) one thing I would do is make certain that CanLII is pumped into prisons and remand centres for prisoner/detainee access. Those facilities have little, if any, legal research resources, and we now have an excellent, searchable, authorative place for people who need to know about the law to find out what the law is. Hey, maybe someone should do a
Charter challenge …
Is it a fix? Nope, but it’s step closer to right place.
But the quiet irony is that the really messy complexity in criminal law is the fallout of the
Charter, and how it applies to fairness. Not whether a person is guilty or innocent, but whether or not something is fair or procedurally correct. I’ll keep my burgeoning rant under control, but take the question of whether a search is or is not lawful. We used to have rules. Now we have context. I feel sorry for the cops, the accused persons, lawyers, and judges. It’s not quite guesswork – but it’s close.
And that doesn't really help anyone. The law is supposed to be knowable - a predictable apparatus. When it's not, we all have a problem.
SMS Möwe