eric wrote: ↑Sat Nov 21, 2020 6:58 pm
I realize that Blackstone didn't make a ruling on Canada's quarantine laws, as has neither Aristotle or Plato. That being said, the Federal Court of Canada has done so on a case that had much more possible merit than that of an unemployed yoga instructor returning from a trip to the US.
https://www.canlii.org/en/ca/fct/doc/20 ... ltIndex=32
Besides, you can't pick and choose your laws, as in quarantine orders are not law but the Charter is. And yes, the judge did examine whether it was "law", whether or not he had jurisdiction, and whether it was fair and reasonable, taking into account possible harm to the livelihood of the petitioner and his employer.
"[98] The liberty interest identified by the applicant, as part of the harm he will experience if he remains in quarantine, is a significant interest. While the applicant made no submissions with respect to a violation of his liberty rights under s. 7 of the Canadian Charter of Rights and Freedoms, I accept that loss of liberty even for a short period is a factor of considerable force in the assessment of balance of convenience."
The case does not perform any Charter analysis of the s. 7 issue.
Parhar's case is different, he is being tried criminally for violating the the Quarantine Act. Not that he will make a Charter argument, but it is there to be made. Anyway, it's all relatively stupid at this point because there is no more trial by combat, which is the best check on both litigants and judges.
"But, although a Court is not obliged to defend its Record by the Duel, yet is it bound to defend its Judgment by the Duel. If, therefore, any one should declare against the Court for passing a false Judgment, and, therefore false, because when one party had said this, and the other answered thus, the Court in question had judged falsely of their allegations by deciding in such words; and that the Court had given such false Judgment by the mouth of N.; and, if he were disposed to deny the present charge, the other was prepared to prove it against him, chiefly by such proper witness, who was ready to enter upon the proof. Thus may the matter, and that very properly, be decided by the Duel. But whether such Court is obliged to defend itself by one of its own members, or may have recourse to a stranger, may be questioned?
It ought, indeed, to defend itself chiefly by the person who has passed the Judgment..." (Glanville, tr. Beames, pp. 210-11.
https://archive.org/details/atranslatio ... 1up?q=duel)
Trial by combat is the fundamental control on judicial over-reach, if every judge has to defend his judgments by his body, he will be fit of body and mind, and he will not render judgments that tend to absolutely destroy people for trivialities, like going for a walk because some statue erected by a synod or parliament or whatever said he shouldn't.
Also, they never deal with the issue if personal jurisdiction, all they do is claim jurisdiction throughout a political subdivision, e.g. CANADA or BRITISH COLUMBIA, and it is very strange that people should be made to believe that they exist in political subdivisions, that is, bodies politic or corporations. So, once Parhar is inevitably tried, he could, once the officer testifies, "so, you say it happened in British Columbia? I put it it you it happened on the land" or "in space." Those are non-political terms. The other issue is the date on which it happened, Calendars are religious institutions for scheduling festivals---they exist only in agrarian societies, there are no calendars in hunter-gatherer society, not in the sense of a universal prescription of a specific date as, for example, the "new year." Calendars and Political Subdivisions go hand in hand, because, of course, a subdivision is only current after the date it is registered.
Broadly, and this is fairly current in postcolonial theory, the Government of Canada is a de facto Government, certainly in British Columbia. None of the mainland first nations every gave up their sovereignty, though, in fact, they have been reduced to a state of dependence on the Crown, but that does not mean that such was lawful. So, one could also ask "did the events not take place within the traditional and unceded territory of the Sto:lo, Squamish, Musqueam and Tseil-watuth?" Or perhaps the Haida, they ranged as far south as Northern California, hunting wives and other things.
And you can certainly pick and choose---laws are treaties, anyone is free to say "I resile from that treaty, I'll fight you to the death rather than obey you." So you might get killed, so what, today is a good day to die. Instead of going to jail, treat every encroachment upon your liberty "justified by law" or not as an act of war. So you'll die, it's purely cultural whether one thinks being taken prisoner is dignified or not. In many cultures it is considered undignified to allow oneself to be taken prisoner, it is more honorable to fight and make them kill you, because this makes them realize what they are: killers. Law is a command backed by the threat of death. If they come to take you away, you go with them, or they kill you, unless they can subdue you without killing you, but, still, if push comes to shove, they kill you. And I am not saying there's anything wrong with that, but it is purely a docile Eurasian cultural norm that you go quietly with your captors.