National Post

Monday, October 21, 2002

Judge's decision a smokescreen

Regulating smokers opens the door to intervention into individual behaviour

George Jonas
National Post

A Canadian judge's decision last week to remove a four-year-old boy from his mother because she smoked at home underscores the difference between this country and the United States. Not so much regarding second-hand smoke -- Americans are just as paranoid about that as Canadians -- but about the state telling people how to live.

Two years ago the U.S. Supreme Court reaffirmed the distinction. The issue wasn't smoking; it was visitation rights. In a 6-3 decision the court struck down a Washington state law that would have forced the Wynn family to submit to court-ordered visits by grandparents Gary and Jennifer Traxel.

"So long as a parent adequately cares for his or her children," wrote Justice Sandra Day O'Connor for the majority of the U.S. Supreme Court, "there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of the parent to make the best decisions concerning the rearing of that parents' children."

At that time, Canada's legal experts were quick to point out that such a ringing endorsement of family autonomy has no place in Canadian law. Osgoode Hall Law School professor Mary Jane Mossman observed that in Ontario any person may apply for access or custody.

"In Canada the courts sing loud and clear that the issue is about the child," Prof. Mossman was quoted as saying.

Well, not quite. In Canada and Canadian-type societies, the issue isn't about the child. The issue is about the state. The child is only the Trojan Horse through which Big Nurse and her hangers-on seek to muscle in on the autonomy of the family. The state's aim is to break down the sovereignty of individuals in their roles as parents. The child is only the excuse.

What our courts "sing loud and clear" about isn't the child, but their own authority. What our judges are jealously upholding is the right of the government and its agencies to interfere with everyone and everything according to the state's own lights and ideas.

Until recent times parents had some autonomy. Without evidence to the contrary, it was assumed that they knew best, and were acting in the best interest of their children. The exception was an unfit parent. However, the onus used to be on those who disputed a parent's fitness to demonstrate it -- and they would have had to demonstrate a hell of a lot more than that he or she smoked.

Today parental fitness is just a factor. The last word goes to judges, guardians, case-workers, and "experts" -- in other words, to the officials of the state. It goes to whatever happens to be in vogue socially, politically or pseudo-scientifically, and to whoever succeeds in manipulating a court in the name of such a social, political, or pseudo-scientific fashion.

One can't tell how the U.S. Supreme Court would have decided the Wynn case if the issue had been smoking. Perhaps Madame Justice O'Connor would still have refused to allow "the state to inject itself into the private realm of the family"; perhaps not. It's hard to say because the bugbear of second-hand smoke has become to our generation what masturbation had been to our Victorian ancestors -- and on not much sounder medical grounds.

"The law is catching up to the science," commented the legal counsel for a lobby group called the Non-Smokers' Rights Association following the Canadian decision. With great respect to lobby groups and their mouthpieces, what the law is catching up to is mass hysteria. However, this isn't the worst thing the law is catching up to. The worst thing is statism.

Just as cigarettes are a delivery system for nicotine, health and safety issues, along with "the interest of children," are delivery systems for Big Government. They're especially significant in our days when so many other delivery systems of statism have been discredited. Blatant forms of coercive government, such as fascism or communism, have lost their intellectual allure, and even dreams of the socialist welfare state have ended in rude awakenings. Interventionists have been finding it more and more difficult to gain access to the body politic via traditional routes.

In the past 20 years the battleground has shifted to the social arena. Legislating health issues has proved to be a good way to condition citizens to the essence of statism. The more such regulations affect personal autonomies or fundamental freedoms the better. Regulating smokers opens the door to all kinds of beautiful coercive intervention into individual behaviour. And, of course, since smoking is a genuine hazard, all interventions can be clothed in a self-righteous concern for public hygiene.

People who applaud the Canadian court's decision because the issue happens to be smoking should pause to think. The next child to be removed from a mother's home will be on account of the carbohydrates in her cooking, or for violent computer games in the home, or because she lets the child ride a horse or bicycle, which her estranged husband and his hired experts consider too dangerous. A judge has opened the door.

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