On Lawfare.

LAWFARE differs from law in that the former cares more for procedure as opposed to evidence and morals whereas the latter looks to demarcate the lawful from the unlawful. For instance, if I am arrested for drunk driving because the officer thought I “looked” drunk even though I am not physically drunk, then under the influence of lawfare I will be imprisoned overnight and forced to see a judge at a set date. Even though the arrest was illegal, I still have to go through the “process” even though there was no evidence to begin with. People who are illegally protesting by standing on railway tracks or obstructing traffic do not need to be arrested on mass but merely booted off the property, but under lawfare, the protestors need to be bound, caged and transported so that they can be “processed” even though it is more expedient and affordable to remove them and their garbage from the property. If the law states that people should be punished for standing on railway tracks, but are removed from the tracks by railway security, then why bother making any arrests? To speak metaphorically, people prefer exterminating insects as opposed to imprisoning them.

Lawfare courts use what I call procedural positivism; a legal philosophy which asserts that the formality, procedure and grandeur of the courts transcends common sense in that the police can violate civil law by shutting down businesses, unlawfully arrest people who refuse to identify in circumstances that do no require them to do so, put conditions on people who have been unlawfully arrested to begin with, arrest people for violating public health guidelines(so-called laws) even though they contradict other statues and constitutional laws, arrest people for going on publicly used land that has been closed down due to unsubstantiated claims and not face any accountability because they have just been assigned to catch fresh prey for the courts as if they were vampires looking for mortals. Under this philosophy, the police do need not need to know the law or use discretion in deciding weather or not a little wrestling match between two disputants should be treated by the officer as if it were a brawl or a petty quarrel. Obvious police misconduct and unwarranted violations of a persons civil liberties(i.e. arresting someone because a politician does not like the subject matter of a protest) must not be rejected by impartial law enforcers, but embraced by lackeys who are told to fly from the nest of mother judge and bring her back food so that the honorable mother can preform her “process” on the accused.

Political police, on behalf of mother judge, will arrest someone or issue fines which are blatantly illegal and then say, “We respect your constitutional rights, but what your defense has not been settled by the courts yet.”. This statement is contradictory in that constituted rights are absolute unless the person commits an offense while preforming a constituted right. I have the right to work and make a living, but I cannot use slave labor to produce the goods that I sell. I have the right to protest, but I cannot stand on railway tracks, block-off roads or squat on publicly used land when people outside the protest have the right to access that property. I have the right to vote, but I cannot vote by putting in 10 pre-written ballots through the slot when I am only allowed to put in the one. I have the right to be protected from unreasonable laws, but I do not have the right to protect myself from those unreasonable laws in a way that would cause serious bodily harm to the officer who tries to enforce them. I have a right to security of person and therefore self defense, but I cannot claim self defense if I enslave the slaveowner. Apart from these scenarios, courts do not need to be convened for constitutional challenges when the police have made clear and obvious violations of a persons Constitutional, Charter or civil liberty rights.

I propose that in order to remedy this, a person that has been arrested ought to have the right to demand evidence or reasonable testimony as to why they have been arrested in what I call the pre-judicial justification process. For instance, if I am arrested for not producing identification, then I have the right to ask for legal evidence which says that I must identify myself whenever an officer tells me to. If there is no ID law which says that I must identify just because an officer tells me to, then I have the right to be free immediately. If I am arrested for refusing to take a breath test at an anti-DUI checkpoint, and the officer does not have sufficient reason to believe I am drunk based on my bodily movements or style of driving, then I should be freed. If I am arrested for vandalism because I was standing near a shattered window ,and the officer presumes me to be the vandal, then I have the right to be free as the officer did not see me break the window. The overzealous officer may have hindered the investigation into the vandalism as I would likely be too infuriated to help law enforcement by giving them a statement as to what saw take place before being unlawfully arrested.

If I am arrested and “charged” with murder because I shot two armed robbers, then the chargers must provide me with evidence which shows that I breached the realm of self defense by brutalizing the two robbers. Cameron Gardiner, of Collingwood, Ontario, is a perfect example of someone who was tormented by the procedural positivism of the courts and the police which had punished him with imprisonment for 8 months even though the Crown ended up dropped the case because they could not form a coherent theory as to what motivated Gardiner and his presupposed criminal mind to shoot the two armed robbers. In Gardiners case, the police could clearly see and easily infer that the two robbers ran from the house and had succumb to their well deserved injuries. One does not need to be a forensic pathologist to know that a great struggle must have occurred between the home owner and the two gargoyles that imposed themselves onto him-but the pathologist and crown need something to do, don’t they?

End.

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Luke "Lantern" Thompson

I am a lay libertarian, bioethicist, writer, philosopher, alternative health and reform advocate and more.