Which is better: legal discretion or automatic enforcement?

Debate opinion topics of original content.

Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Wed Feb 04, 2015 10:50 pm

I rest my case.
User avatar
exploited
Vice President
 
Posts: 20958
Joined: Fri Sep 14, 2012 2:32 pm
Location: Ontario, Canada
Gender: Male
Has thanked: 2197 times
Been thanked: 1702 times

Re: Which is better: legal discretion or automatic enforceme

Postby Southern Dad » Thu Feb 05, 2015 6:03 am

I'm a proponent of mandatory enforcement. Cite or arrest everyone that violates the law. Then it can be up to the judge or jury (depending on whether a bench or jury trial is selected) to determine guilt or innocence and appropriate sentence. Here in the USA we have something called Jury Nullification. That is where the jury believes that someone did indeed violate the law but shouldn't be found guilty for it, therefore they return a "not guilty" verdict. This is not legally sanctioned, nor is it offered to the jurors but the jurors are in fact not just trying based upon the letter of the law. Basically, they are saying that either yes, the defendant is guilty but we disagree with the law or yes, the defendant is guilty but shouldn't be convicted in this case.

In Canada, jury nullification exists but the prosecutor can appeal an acquittal.
User avatar
Southern Dad
Senator
 
Posts: 1947
Joined: Fri Jan 02, 2015 8:40 am
Location: The Peach State
Gender: Male
Has thanked: 38 times
Been thanked: 113 times
Political Leaning: Conservative

Re: Which is better: legal discretion or automatic enforceme

Postby eynon81 » Thu Feb 05, 2015 8:33 am

Southern Dad wrote:I'm a proponent of mandatory enforcement. Cite or arrest everyone that violates the law. Then it can be up to the judge or jury (depending on whether a bench or jury trial is selected) to determine guilt or innocence and appropriate sentence. Here in the USA we have something called Jury Nullification. That is where the jury believes that someone did indeed violate the law but shouldn't be found guilty for it, therefore they return a "not guilty" verdict. This is not legally sanctioned, nor is it offered to the jurors but the jurors are in fact not just trying based upon the letter of the law. Basically, they are saying that either yes, the defendant is guilty but we disagree with the law or yes, the defendant is guilty but shouldn't be convicted in this case.

In Canada, jury nullification exists but the prosecutor can appeal an acquittal.



Jury nullification is when they simply choose to ignore the instructions and acquit the guy, it's pretty rare. Had it sorta happen once (jury hung).
User avatar
eynon81
VIP
VIP
 
Posts: 19475
Joined: Mon Aug 20, 2012 10:38 am
Location: Golden, Colorado
Gender: Male
Has thanked: 3875 times
Been thanked: 1821 times
Political Leaning: Very Conservative

Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Thu Feb 05, 2015 8:41 am

Saz wrote:
I didn't say mandatory punishments. I said mandatory enforcement, which basically means they get arrested and tried, again according to the law.

This makes no sense. How would you know if it's an illegal act without a trial in the first place? Circular logic. Arrest everyone for an illegal act but then put them on trial to determine if they acted illegally.


Yes, I agree, where there is evidence of lawbreaking, people should be arrested and tried by a jury. Irrespective of social status or political popularity.

The law is by definition less predictable when it isn't enforced. If the public wants something to be legal, they should make it legal; if they don't, that's on them. Isn't that closer to reality anyways?

It is legal until someone is convicted in a court. If they haven't been convicted, it's legal. You may think it's blatantly illegal, but we have courts that decide such matters, not your or the general public.


I agree, it is up to the courts to decide if the law has been broken, following a review of the evidence. Of course that is how it should work for everyone.

How can the law be more transparent when it's enforcement relies upon discretion, whose exercise never sees the light of day?

The exercise of discretion always sees the light of day because either someone is convicted, or they are not. Your NSA thing is a perfect example. It's obvious you think it should be illegal and you probably have grounds for believing that, but the lack of prosecution and the governments reasoning for that lack of prosecution is evidence in itself that their the act is in fact legal, or a certain amount of discretion has applied.


Incorrect. I don't think it should be illegal. I know with 100% certainty that it is illegal, because the Supreme Court of Canada has ruled it as such in previous decisions.

http://www.cbc.ca/m/news/politics/csec- ... -1.2517881

CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden documents

Electronic snooping was part of a trial run for U.S. NSA and other foreign services

EXCLUSIVE Jan 31, 2014 6:38 PM ET
Greg Weston, Glenn Greenwald, Ryan Gallagher, CBC News

A top secret document retrieved by U.S. whistleblower Edward Snowden and obtained by CBC News shows that Canada's electronic spy agency used information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.

After reviewing the document, one of Canada's foremost authorities on cyber-security says the clandestine operation by the Communications Security Establishment Canada (CSEC) was almost certainly illegal.

Ronald Deibert told CBC News: "I can't see any circumstance in which this would not be unlawful, under current Canadian law, under our Charter, under CSEC's mandates."

The spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.

As CSEC chief John Forster recently stated: "I can tell you that we do not target Canadians at home or abroad in our foreign intelligence activities, nor do we target anyone in Canada.

"In fact, it's prohibited by law. Protecting the privacy of Canadians is our most important principle."


But security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.

...
User avatar
exploited
Vice President
 
Posts: 20958
Joined: Fri Sep 14, 2012 2:32 pm
Location: Ontario, Canada
Gender: Male
Has thanked: 2197 times
Been thanked: 1702 times

Re: Which is better: legal discretion or automatic enforceme

Postby Southern Dad » Thu Feb 05, 2015 9:31 am

eynon81 wrote:Jury nullification is when they simply choose to ignore the instructions and acquit the guy, it's pretty rare. Had it sorta happen once (jury hung).


You are right, it is very rare but it has happened. In cases of violent crimes and non-violent. There is an older man that was growing marijuana that a jury nullified the charge by coming back with a not guilty even though he was clearly guilty. Another case involved a man who killed a child molester who had molested his daughter.
User avatar
Southern Dad
Senator
 
Posts: 1947
Joined: Fri Jan 02, 2015 8:40 am
Location: The Peach State
Gender: Male
Has thanked: 38 times
Been thanked: 113 times
Political Leaning: Conservative

Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Thu Feb 05, 2015 12:36 pm

Yes, I agree, where there is evidence of lawbreaking, people should be arrested and tried by a jury. Irrespective of social status or political popularity.

Yes, but this isn't a practical plan. This is a statement of intent. We all agree with it in principle. In practice it's nearly impossible.

I agree, it is up to the courts to decide if the law has been broken, following a review of the evidence. Of course that is how it should work for everyone.

Again, this isn't a practical plan. This is a statement of intent. We all agree with it in principle. In practice it's nearly impossible.

Incorrect. I don't think it should be illegal. I know with 100% certainty that it is illegal, because the Supreme Court of Canada has ruled it as such in previous decisions.

http://www.cbc.ca/m/news/politics/csec- ... -1.2517881

CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden documents

Electronic snooping was part of a trial run for U.S. NSA and other foreign services

EXCLUSIVE Jan 31, 2014 6:38 PM ET
Greg Weston, Glenn Greenwald, Ryan Gallagher, CBC News

A top secret document retrieved by U.S. whistleblower Edward Snowden and obtained by CBC News shows that Canada's electronic spy agency used information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.

After reviewing the document, one of Canada's foremost authorities on cyber-security says the clandestine operation by the Communications Security Establishment Canada (CSEC) was almost certainly illegal.

Ronald Deibert told CBC News: "I can't see any circumstance in which this would not be unlawful, under current Canadian law, under our Charter, under CSEC's mandates."

The spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.

As CSEC chief John Forster recently stated: "I can tell you that we do not target Canadians at home or abroad in our foreign intelligence activities, nor do we target anyone in Canada.

"In fact, it's prohibited by law. Protecting the privacy of Canadians is our most important principle."


But security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.

...


It's not illegal until a court rules on the MATTER AT HAND. If I shot someone, you can say it was illegal but that is not an actual fact until I'm convicted in a court. This is literally why we say INNOCENT until PROVEN guilty. And only a court can PROVE your guilt, not any other outside set of facts or other observers or any previous court ruling on a separate incident.
Pun intended for the plebes on here who don't get a joke
User avatar
Saz
Governor
 
Posts: 8448
Joined: Mon Mar 17, 2014 9:37 am
Location: Airstrip One
Gender: Male
Has thanked: 1068 times
Been thanked: 899 times
Political Leaning: Classic Liberal

Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Thu Feb 05, 2015 12:46 pm

Saz wrote:
Yes, I agree, where there is evidence of lawbreaking, people should be arrested and tried by a jury. Irrespective of social status or political popularity.

Yes, but this isn't a practical plan. This is a statement of intent. We all agree with it in principle. In practice it's nearly impossible.

I agree, it is up to the courts to decide if the law has been broken, following a review of the evidence. Of course that is how it should work for everyone.

Again, this isn't a practical plan. This is a statement of intent. We all agree with it in principle. In practice it's nearly impossible.

Incorrect. I don't think it should be illegal. I know with 100% certainty that it is illegal, because the Supreme Court of Canada has ruled it as such in previous decisions.

http://www.cbc.ca/m/news/politics/csec- ... -1.2517881

CSEC used airport Wi-Fi to track Canadian travellers: Edward Snowden documents

Electronic snooping was part of a trial run for U.S. NSA and other foreign services

EXCLUSIVE Jan 31, 2014 6:38 PM ET
Greg Weston, Glenn Greenwald, Ryan Gallagher, CBC News

A top secret document retrieved by U.S. whistleblower Edward Snowden and obtained by CBC News shows that Canada's electronic spy agency used information from the free internet service at a major Canadian airport to track the wireless devices of thousands of ordinary airline passengers for days after they left the terminal.

After reviewing the document, one of Canada's foremost authorities on cyber-security says the clandestine operation by the Communications Security Establishment Canada (CSEC) was almost certainly illegal.

Ronald Deibert told CBC News: "I can't see any circumstance in which this would not be unlawful, under current Canadian law, under our Charter, under CSEC's mandates."

The spy agency is supposed to be collecting primarily foreign intelligence by intercepting overseas phone and internet traffic, and is prohibited by law from targeting Canadians or anyone in Canada without a judicial warrant.

As CSEC chief John Forster recently stated: "I can tell you that we do not target Canadians at home or abroad in our foreign intelligence activities, nor do we target anyone in Canada.

"In fact, it's prohibited by law. Protecting the privacy of Canadians is our most important principle."


But security experts who have been apprised of the document point out the airline passengers in a Canadian airport were clearly in Canada.

...


It's not illegal until a court rules on the MATTER AT HAND. If I shot someone, you can say it was illegal but that is not an actual fact until I'm convicted in a court. This is literally why we say INNOCENT until PROVEN guilty. And only a court can PROVE your guilt, not any other outside set of facts or other observers or any previous court ruling on a separate incident.


Simply deeming something "impractical" and providing no explicit rationale for it isn't a valid argument.

What is impractical about having police charge and the courts try every person they reasonably believe has broken the law, based upon evidence already obtained? Isn't that exactly the point of the law?

"Murder is illegal."

"I murdered a guy in 1996, never got caught."

"Oh, well then, that's okay. Obviously what you did wasn't illegal because you never faced trial."

"Yeah, I mean the cops saw me do it, but I was friends with them and it really wasn't a good time, so they just let it slide."
User avatar
exploited
Vice President
 
Posts: 20958
Joined: Fri Sep 14, 2012 2:32 pm
Location: Ontario, Canada
Gender: Male
Has thanked: 2197 times
Been thanked: 1702 times

Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Thu Feb 05, 2015 1:12 pm

What is impractical about having police charge and the courts try every person they reasonably believe has broken the law, based upon evidence already obtained?


Because "every person they reasonably believe to have broken the law" is not an objective standard. The cops would say that we already DO arrest and charge every person we reasonably believe had broken the law. You can shout about how YOU think it's illegal, but they are just going to stare back at you with a straight face and say we don't reasonably believe the broke the law.

You basically want then to charge people anytime YOU think they broke the law, which isn't how the system works.
Pun intended for the plebes on here who don't get a joke
User avatar
Saz
Governor
 
Posts: 8448
Joined: Mon Mar 17, 2014 9:37 am
Location: Airstrip One
Gender: Male
Has thanked: 1068 times
Been thanked: 899 times
Political Leaning: Classic Liberal

Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Thu Feb 05, 2015 1:16 pm

Saz wrote:
What is impractical about having police charge and the courts try every person they reasonably believe has broken the law, based upon evidence already obtained?


Because "every person they reasonably believe to have broken the law" is not an objective standard. The cops would say that we already DO arrest and charge every person we reasonably believe had broken the law. You can shout about how YOU think it's illegal, but they are just going to stare back at you with a straight face and say we don't reasonably believe the broke the law.

You basically want then to charge people anytime YOU think they broke the law, which isn't how the system works.


I can't tell if you're trolling or legitimately this dense.

It isn't a matter of me thinking CSEC broke the law. They did break the law. Period. End of story. The evidence is widely available and well-known. They are strictly forbidden, by statue, from spying on Canadians or in Canada. The head of CSEC explicitly acknowledged that. We know with absolute certainty they did both, and then lied about it. Those responsible should be charged, because that is the point of having law enforcement.
User avatar
exploited
Vice President
 
Posts: 20958
Joined: Fri Sep 14, 2012 2:32 pm
Location: Ontario, Canada
Gender: Male
Has thanked: 2197 times
Been thanked: 1702 times

Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Thu Feb 05, 2015 1:23 pm

exploited wrote:
Saz wrote:
What is impractical about having police charge and the courts try every person they reasonably believe has broken the law, based upon evidence already obtained?


Because "every person they reasonably believe to have broken the law" is not an objective standard. The cops would say that we already DO arrest and charge every person we reasonably believe had broken the law. You can shout about how YOU think it's illegal, but they are just going to stare back at you with a straight face and say we don't reasonably believe the broke the law.

You basically want then to charge people anytime YOU think they broke the law, which isn't how the system works.


I can't tell if you're trolling or legitimately this dense.

It isn't a matter of me thinking CSEC broke the law. They did break the law. Period. End of story. The evidence is widely available and well-known. They are strictly forbidden, by statue, from spying on Canadians or in Canada. The head of CSEC explicitly acknowledged that. We know with absolute certainty they did both, and then lied about it. Those responsible should be charged, because that is the point of having law enforcement.


*sigh*

Listen man, everyone in this thread has come on here and said discretion. It's clear you don't understand how due process works. Just because you think it's an obvious violation does not make it illegal. Again, we have institutions that are tasked with determining if the law has been broken. You may not trust those institutions and you may think they are OBVIOUSLY wrong, but that's really not your place to decide. Nevertheless, those institutions have the support and legitimacy that comes through the democratic process, and if you don't think those institutions are functioning as they should, then that's for the democratic process to fix. But simply saying "This is obviously illegal, why haven't they been charged" is not a sound legal or theoretical foundation for determining guilt. What is obvious to you may not be obvious to others, which is why we have the courts to make these determinations. If you think they got it wrong, fine, that's your right, but we have the process and these institutions in place for a reason, and they are in fact supported by the people through the democratic process. I don't know how else to explain this to you because it's clear you don't understand the rational or the mechanisms behind substantive due process.
Pun intended for the plebes on here who don't get a joke
User avatar
Saz
Governor
 
Posts: 8448
Joined: Mon Mar 17, 2014 9:37 am
Location: Airstrip One
Gender: Male
Has thanked: 1068 times
Been thanked: 899 times
Political Leaning: Classic Liberal

PreviousNext

Return to The Soapbox

Who is online

Users browsing this forum: No registered users and 1 guest