Monday, February 20, 2012

So you think lawyers are stupid ... think again

Photo courtesy James McCauley, Creative Commons
Until you read a legal decision, you really shouldn't comment on it.
This is a good rule if you don't want to look like a fool. Because legal decisions are, in my experience, often well considered and difficult to refute - once you have read them.

But, on the surface, without the facts, they can seem wonky. Which is why you should read them before shooting your mouth off.

I have often been in arguments with people about legal matters. And they often zone in on a ruling that, on the surface, seems insane.

"What are those idiots doing?" is the common refrain.

Which is a good question. How can highly trained individuals with years of experience, often people at the top of their field, impose a ruling that is so clearly stupid?

Except that these are, as noted, experienced people at the top of their field.  They are not stupid.

And, more often than not, neither are their decisions. When you consider all the facts.

Take, for example, hunting deer with flashlights in municipalities.

A couple of members of the Tsartlip First Nation on Vancouver Island did this in 1996, shooting five slugs into a decoy deer placed by BC conservation officers.

They were arrested under provincial game laws. The case went to the Supreme Court.

In 2007, the court ruled the provincial rules against hunting at night violated treaty rights laid down in 1852 (here is the ruling:

The Supreme Court overturned the convictions.

The Tsartlip people are allowed to hunt with traditional methods. Throughout history they have hunted at night. And they can still do so. Further, under the treaty, their equipment must be allowed to evolve to take in rifles and flashlights, ruled the court in a 4-3 decision.

People thought the decision was ludicrous. And shot their mouths off about it.

It is a hard decision to defend if you don't have the facts.  

But if you read it (which I have) and consider the details of the treaty signed by our forebears almost 200 years ago, the decision is not ridiculous. In fact, it is quite the opposite.

Provincial hunting laws cannot trump treaty rights established by the national government, the court decided. And, as for safety, aboriginal hunters have no right to hunt recklessly and without safety. But if the hunt does not endanger other citizens, it is permissible.

To date, I have not heard of many hunting accidents where First Nation hunters have recklessly shot Saanich joggers they mistook for deer. However, under the ruling, they would be charged and convicted if they were hunting without considering public safety, treaty or no.

Lawyers and judges are many things, but knee-jerk stupid is rarely one of them.

Politicians? That's another matter.

More on that later. (R.M.)


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