The Rational Argumentator

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What if Canadian governments rigorously enforced all the laws of the land, outrageous price tag and complaints from bleeding-heart civil-rights types be damned? It might be literally impossible economically speaking, with the costs in terms of extra police and prisons approaching and even surpassing 100% of GDP. This is all the more likely given the lost productivity associated with throwing millions of people in jail. But leaving aside the economic calculation, which I have neither the resources nor the expertise to carry out, I want to focus instead on the fact that rigorously enforcing Canadian laws would involve throwing millions of people in jail.

Don’t believe me? I have two words for you: drug laws. According to the Centre for Addiction and Mental Health, 44% of Canadians say they have used marijuana at least once, and hence have broken the law. Next time you’re sitting on a bus, look to your left, then look to your right: On average, one of those two people has at least tried marijuana, assuming only that bus riders are statistically representative of Canadians in the relevant ways. That’s roughly 15 million Canadians who would have done jail time if our laws were perfectly enforced.

Even if we just incarcerate those who have used marijuana in the past year, we’re talking about approximately 1 in 8 Canadians aged 15-64, which means locking up some 3 million people. More, really, because I know there are some aging hippies and recently retired baby boomers over the age of 65 out there who are still toking up.

Of course, this ignores the dynamic effects of massively ramping up enforcement levels. If we really put our money (all of it?) where our mouths are when it comes to drug laws and made a serious effort to arrest every last person who took a pull on a joint before passing it along, there would be some significant decrease in the number of people who smoke marijuana. But this would mean spending a whole lot more money. Even the United States, which spends over $50 billion a year on the drug war, only arrested around 750,000 people in 2012 for marijuana law violations (650,000 of which for mere possession). Given that both countries have similar rates of marijuana use, this means that most of the roughly 25 million Americans aged 15-64 who smoked pot last year got away with it.

But economics aside, if we get really serious about enforcing drug laws, we could say goodbye to anything resembling privacy. The draconian measures required even to approach total compliance with our drug laws would be positively Orwellian: cops on every corner, stopping and frisking passersby that look suspicious (or foreign); road traffic slowing to a crawl thanks to checkpoints at major intersections where you have to show your papers and pee into a cup; random no-knock raids at every third door, during which swat team members may or may not shoot the family dog; warrantless wiretapping of every phone call and email message, carried out by humourless killjoys drunk on their power; cameras in all our bedrooms and bathrooms, watched by perverted busybodies who couldn’t cut it as airport security goons.

Patently impossible, you say. We wouldn’t stand for it, you object. Maybe. But then, why do we stand for selective enforcement, with its unavoidable, inherent injustices? If the police and the courts can’t apply the law equally to all, then officers and prosecutors and judges will apply it at their discretion. Since humans are far from flawless, they will apply it disproportionately, according to conscious or subconscious prejudices. Or they will target gadflies like Marc Emery, whose five-year exile to a US prison is finally coming to an end. Was he extradited and thrown in the slammer for selling marijuana seeds over the Internet, or for criticizing the powers that be a little too loudly and a little too effectively?

The Canadian government’s new bill proposing to outlaw sex work (or rather, to outlaw the buying of sex, but not the selling of sex) would similarly not be enforceable to any significant degree without a massive police state. Arrest every person who visits a prostitute? We’ll need many more cops, much more surveillance, many more courts, and many more prisons. And while prostitutes would not be thrown in jail, arresting all their clients would effectively make it impossible for them to practice their trade. Which of course would be the point, if the law were fully enforced. It won’t be, so again we’ll be left with selective, discretionary enforcement, with the added benefit of making prostitutes’ lives more dangerous while appearing to be doing something.

But this unattractive choice between a police state on the one hand and discriminatory, opportunistic enforcement on the other is a false dichotomy. As my QL colleague Adam Allouba recently wrote in a different context, “a far better solution is to make as little of the human experience subject to legislated rules as possible.” We wouldn’t want to do away with laws against such clearly destructive acts as murder, assault, theft, and fraud. But why exactly can’t we follow the lead of places like the Netherlands when it comes to voluntary exchanges of money for sex or soft drugs?

Our existing and soon-to-be-adopted vice laws rest on the assumption that either buyers (of pot) or sellers (of sex) are victims. Now, the very illegality of the activities in question may indeed increase the incidence of peripheral crimes like gang violence or human trafficking. But by and large, voluntary exchanges themselves do not involve victims—just people who have made choices of which you may disapprove. And the lack of any real victim is precisely what makes vice “crimes” so difficult to prosecute without gargantuan budgets and a blatant disregard for people’s rights. In this day and age, knowing all that we know, we can, and should, do better.