The Shotgun Blog
Sunday, September 26, 2010
Is the law too complex for lawmakers to understand?
At some point tomorrow, the Jaworski family will be heading to court to learn their fate. They're in trouble because of one person's interpretation of some local bylaws. Those out there who oppose them have been saying that it would be nothing for them to do their homework, navigate through those bylaws and go and get the proper permits.
But really, how easy is it for a business to stay within the letter of the law? There's always something out there you're missing. And it's not just businesses that have trouble navigating all of these laws, rules, regulations, bylaws - even parliamentarians can be tripped up by them.
As an example, let me point to Vancouver-Quadra MP, Joyce Murray. Ms Murray is not the kind of person you would think would have trouble figuring out the rules. For one, she's a former cabinet minister.
But visit her site, and you'll see a posting for an unpaid internship. One open to: "Students, full or part-time, as well as recent graduates" (emphasis added).
And there is the problem. Now I'm sure the majority of the readers of this blog would take no issue with an individual, in school or not, contracting to do an unpaid internship with a company. Both sides benefit, the intern gets a chance to break into an industry in which they're interested, the company benefits from skilled and motivated people who are willing to try anything.
Unfortunately the government doesn't see it that way. Here in BC, the Employment Standards Act (ESA) says of internships, that in order for them to be exempt from the ESA, and thus exempt from minimum wage rules, they must be - "“hands-on” training that is required by the curriculum, and will result in a certificate or diploma.". To quote York University employment law professor, Dr David Doorey "So that’s easy: if the internship is part of a higher education co-op program, then the Act does not apply."
I exchanged emails with Dr. Doorey on this over the weekend. He agreed that the issue is very complex, but added:
My sense is that there are a whole lot of employees in Canada being improperly labeled "interns" by their employers so that the employer can avoid employment law statutes.
Looking again at the definitions above*, a 'recent graduate' is not a student, and not a participant in a program of higher education. In which case an unpaid internship for them would not be permitted. According to the ESA's of both BC and Ontario, this potential intern would likely be considered an 'employee', and in that case would need to be paid at least minimum wage.
Go back to Ms Murray's internship description and you'll see that the intern will receive a $300 honourarium at the end of their placement. The placement is 12 weeks long, for a minimum of 8 hours per week, meaning that this potential 'employee' will expect to receive the equivalent of ... $3.12 per hour. BC's minimum wage is low - it's not that low though.
Now is paying an employee $3.12 per hour exploitation? A libertarian, naturally, would say 'no'. If you can find someone who will work for that, then great for both of you. But I would imagine a Liberal parliamentarian would see it differently. After all, as we have recently seen, Liberals aren't keen on libertarianism - it's just for 'Peter Pans' after all.
The point of this isn't to hurl insults at Joyce Murray. It is to point out how terribly complex the law is, how difficult it is to obey in full and how anyone, even a former cabinet minister / current Member of Parliament could get tripped up by it.
FYI: Joyce Murray's office got back to me with this:
"It is certainly not my intention, or Ms. Murray’s, to violate BC’s Employment Standards. Please see the modified link below: http://joycemurray.liberal.ca/uncategorized/joyce-murray-mp%E2%80%99s-internship-program/"
The link shows a change to their program to bring it within the letter of the law. If we have to have all of these obscure little rules, that's precisely how to deal with violations of them. No drama, no $50,000 fines, just say sorry, fix it, and promise to follow the rules next time. If it's good enough for parliamentarians ...
Of course it is. Visit a lawyer's or judge's office sometime. The entire room is stacked floor to ceiling with books. Those books don't contain statute law; a single shelf would suffice for that. What those books contain is precedent, some of it going back to the Magna Carta. (That was in 1215.) Precedent is supposedly binding on judges; that is, they must take the rulings of previous similar cases into account when drafting their own.
Needless to say, 800 years of precedent is a crushing burden of knowledge. No human is up to such a task, and it shows in the quality of the rulings courts make. You should be able to take the same facts to ten different judges and get ten identical rulings; nothing less is fair. But judges are constantly picking holes in one another's findings, and the whole thing has become an unmanageable mess.
The solution: A civil-law system, where precedent is not binding, the law is spelled out in statute rather than tradition, and each case is decided on its own merits. Laws should also be pre-vetted by the Supreme Court prior to passage into law, to prevent an unjust law from remaining on the books until some private citizen challenges it at his own risk and expense.
Granted, this system would require fewer lawyers, which is probably a large part of the reason the legal community isn't doing it. Charles Dickens spoke truth when he said that the true nature of the law is to make business for itself.
Posted by: Shane Matthews | 2010-09-27 7:52:34 AM
The myriad of confusing prose that makes up legislation is the first sign that the statists choose to rule by confusion. Why not have a simple and concisely written law, rather than one that is so confusing, so loaded with loopholes, that it is rendered meaningless and unenforceable. The only way to effectively deal with this crisis is to purge the political culture of its liberal effluent, dispose of useless laws and the officialdom they foster.
Posted by: AB Patriot | 2010-09-27 3:23:45 PM
I concur with Shane and especially with Charles Dickens that the true nature of law is to make business for itself. Consider the huge number of unemployed and unemployable lawyers should the system change.
AB Patriot, I disagree that this is the result of either statists or liberalism. It is non partisan when it comes to politics, which is not to say that there is no problem. I do suggest, as an ancient Roman stated, that the more laws a government creates the more corrupt the government.
Posted by: Alain | 2010-09-27 7:18:52 PM
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