Speaker 0: Hello and welcome to episode fifty of Not
Speaker 0: Reserving Judgment, a podcast about the latest intrigues,
Speaker 0: triumphs, and outrages in Canadian constitutional law. I'm
Speaker 0: Joshua Hawes, counsel with the Canadian Constitution Foundation.
Speaker 1: I'm Christine Van Gein, the CCF's litigation director.
Speaker 2: And I'm Joanna Barron, executive director of the
Speaker 2: CCF.
Speaker 1: In today's episode, I'm gonna tell you about
Speaker 1: the not guilty finding related to two men
Speaker 1: accused of conspiracy to
Speaker 0: murder
Speaker 1: police in Coutts, Alberta during the Freedom Convoy.
Speaker 2: I'll tell you about an Ontario farmer who's
Speaker 2: being told that he needs to pay up
Speaker 2: to the tune of four hundred thousand dollars
Speaker 2: in archaeology fees if he wants to build
Speaker 2: a house on his property after certain artifacts
Speaker 2: were on Earth.
Speaker 0: And we'll share our Bad Legal Takes to
Speaker 0: the Weave Corps where we take a lighthearted
Speaker 0: look at some legal opinions that didn't quite
Speaker 0: land. But first, I wanna tell you about
Speaker 0: a counter protester who stood up against Hamas
Speaker 0: supporters and got arrested for it, and explain
Speaker 0: why I think that decision by police may
Speaker 0: have violated his rights. So I'm talking about
Speaker 0: Dominic Cardi who is both a former New
Speaker 0: Brunswick NDP leader and a former New Brunswick
Speaker 0: progressive conservative education minister, which is, interesting. He's
Speaker 0: currently interim leader of the Canadian Future Party,
Speaker 0: which is an upstart centrist conservative party related
Speaker 0: to the center ICE movement. And it's not
Speaker 0: actually all that important who Cardi is. What's
Speaker 0: important is what happened to him last Thursday
Speaker 0: in Toronto. As he recounted on ex, Carty
Speaker 0: was visiting Toronto when a bunch of, when
Speaker 0: he heard a bunch of chanting at young
Speaker 0: Dundas sorry, Sankofa Square coming from what what
Speaker 0: he described as a bunch of Hamas enthusiasts,
Speaker 0: and I think that description is warranted. Now
Speaker 0: these protesters were blocking traffic, and they were
Speaker 0: literally trampling on an Israeli flag in the
Speaker 0: middle of the intersection, chanting things like long
Speaker 0: live the resistance, and these are not nice
Speaker 0: people. Carty waded into the crowd. It wasn't
Speaker 0: a huge crowd but he waited and he
Speaker 0: started chanting in the middle of it free
Speaker 0: Palestine from Hamas, free Palestine from Hamas, which
Speaker 0: obviously these people did not like. As he
Speaker 0: puts it, this attracted negative attention, which is
Speaker 0: fine, he says. He He says, quote, in
Speaker 0: democracies, we have our voices and our bodies,
Speaker 0: and all expect both to be protected when
Speaker 0: we exercise our rights. As we live through
Speaker 0: this horrible reboot of the nineteen thirties, we
Speaker 0: have to use our rights to resist the
Speaker 0: authoritarians. Cardiads, I was approached by a Toronto
Speaker 0: police officer. He asked me to leave. I
Speaker 0: declined. He left. I was met with multiple
Speaker 0: threats and a good kick from assorted masked
Speaker 0: weirdos. And then you can see in, a
Speaker 0: video posted by the lawyer and journalist, Karam
Speaker 0: Hassad, that there are various people including at
Speaker 0: least one kefir masked thug physically intimidating Cardi.
Speaker 0: They're yelling at him. One moment makes the
Speaker 0: upside down triangle. I don't know how to
Speaker 0: do it. That's a rectangle. Upside down triangle
Speaker 0: with her fingers. Yeah. You got it, Chrissy.
Speaker 0: I feel kindergarten. Just just she makes this
Speaker 0: upside down triangle symbol, which is obviously a
Speaker 0: reference to the the, the red triangle from
Speaker 0: Hamas's propaganda videos, which shows who's their next
Speaker 0: Israeli target.
Speaker 1: Disgusting.
Speaker 0: Yeah. And, you know, it's tense. Like, these
Speaker 0: protests with counter protesters always are, but I
Speaker 0: didn't see Cardi do anything that looked violent
Speaker 0: or threatening. And, you never know, but you
Speaker 0: can't see it on the video. Anyway, police
Speaker 0: returned and arrested him for disturbing the peace.
Speaker 0: He says he was staying at the police
Speaker 0: station locked up where he took a nap,
Speaker 0: and he was released after a couple of
Speaker 0: hours without charges or conditions. So he writes
Speaker 0: on Twitter, no more standing by. It's time
Speaker 0: for standing up. Step up against extremism. Defend
Speaker 0: our open society now. And he says he
Speaker 0: refused to agree with police that he wouldn't
Speaker 0: attend future protests. So I've reached out to
Speaker 0: Cardi to try and discuss the situation because
Speaker 0: I wanna know if there are more facts
Speaker 0: that we're unaware of. Because, you know, based
Speaker 0: on what I saw, it looks like his
Speaker 0: rights were probably violated, by the police. You
Speaker 0: know, I don't think he gave them any
Speaker 0: reason to believe that he was about to
Speaker 0: breach the peace or that he had breached
Speaker 0: the peace. And so this is why I'm
Speaker 0: I'm concerned. And I say this based on
Speaker 0: the law as outlined in the twenty nineteen
Speaker 0: decision in Fleming in Ontario, which is a
Speaker 0: case the CCF intervened in to defend a
Speaker 0: protester, whose rights were also breached. Randy Fleming,
Speaker 0: just to give the the background of the
Speaker 0: story, was a resident of Caledonia, Ontario, which
Speaker 0: is a town where Six Nations protesters were
Speaker 0: terrorizing the local non indigenous townspeople for years
Speaker 0: because of plans to build a housing development
Speaker 0: on land that they claimed they've been promised
Speaker 0: by the crown. And this involved requiring residents
Speaker 0: to show six nations issued passports to get
Speaker 0: to their houses. There's a brutal attack on
Speaker 0: a man at the development with a two
Speaker 0: by four that left him with serious, like,
Speaker 0: brain damage. There was more than one arson
Speaker 0: that at one point a power station was
Speaker 0: burned down, which caused a big blackout. It
Speaker 0: was a really ugly situation. And rather than
Speaker 0: enforce the law, the Ontario government, which was
Speaker 0: Dalton McGinty's government at the time, just purchased
Speaker 0: the site and handed it over to six
Speaker 0: nations to end all of the acrimony. Anyway,
Speaker 0: Fleming was a counterprotester, so he attended this
Speaker 0: rally called a flag rally where local residents
Speaker 0: would just walk along the streets of Caledonia
Speaker 0: in front of the development carrying big Canadian
Speaker 0: flags. And on the day in question, a
Speaker 0: police cruiser, two vans, and paddy wagons all
Speaker 0: sort of aggressively approached Fleming, which caused him
Speaker 0: to, like, walk up toward the, development site.
Speaker 0: And he was carrying his flag, and police
Speaker 0: were yelling at him, like, drop the flag.
Speaker 0: And he refused to drop the flag, so
Speaker 0: they ran up and arrested him. And they
Speaker 0: put him in jail. They injured his arm,
Speaker 0: and he was arrested basically just for protesting
Speaker 0: with the Canadian flag. So the OPP went
Speaker 0: to court and they argued that Fleming's rights
Speaker 0: were not violated because they'd arrested him basically
Speaker 0: for his own protection. They said someone else
Speaker 0: was about to breach the peace because when
Speaker 0: he walked up, there were, you know, eight
Speaker 0: or ten protesters walking towards Fleming, and so
Speaker 0: they had to arrest Fleming in this scenario
Speaker 0: even though there were, you know, several cops
Speaker 0: available to confront the protesters if they need
Speaker 0: to. So, anyway, the Supreme Court in this
Speaker 0: scathing twenty nineteen decision written by justice Suzanne
Speaker 0: Cote, said this is not acceptable police behavior.
Speaker 0: It's a violation of rights. You know, the
Speaker 0: courts do have the power to do what's
Speaker 0: reasonably necessary to carry out their duties, which
Speaker 0: include the duties to prevent crime, to protect
Speaker 0: life and property, and to keep the peace.
Speaker 0: But they don't have the power to arrest
Speaker 0: somebody who hasn't committed an offense, who's not
Speaker 0: about to commit an offense, who hasn't breached
Speaker 0: the peace, and who's not about to breach
Speaker 0: the peace. They they can arrest someone just
Speaker 0: to prevent a breach of the peace by
Speaker 0: someone else against that person. So, anyway, the
Speaker 0: court struggled a bit to define breach of
Speaker 0: the piece and that's understandable because it's kind
Speaker 0: of a weird concept. In one sense, originally
Speaker 0: all of the crimes were breaches of the
Speaker 0: peace, but then we started codifying crimes and
Speaker 0: what we're left with is this more ambiguous
Speaker 0: concept that's not actually a crime, but it's
Speaker 0: still part of the law. And the criminal
Speaker 0: code says about Breach of the Peace that
Speaker 0: an officer is justified in arresting any person
Speaker 0: whom he finds committing a breach of the
Speaker 0: peace or believes unreasonable grounds is about to
Speaker 0: join or renew a breach of the peace.
Speaker 0: But all this means is the cop himself
Speaker 0: or herself is not violating the law when
Speaker 0: he or she arrests somebody for breaching the
Speaker 0: peace. It doesn't say it's actually a crime
Speaker 0: to breach the peace because it isn't a
Speaker 0: crime. And so this creates this weird situation
Speaker 0: where police can arrest people, without, you know,
Speaker 0: charging them with anything. And the court looked
Speaker 0: into various situations to try to find what
Speaker 0: Breach the Peace really is. And they said,
Speaker 0: quote, violence lies at the core and there
Speaker 0: must be a risk of harm and violence.
Speaker 0: They also said danger to the person is
Speaker 0: always involved so it's not about property. And
Speaker 0: they said behavior that quote is merely disruptive,
Speaker 0: annoying, or unruly is not a breach of
Speaker 0: the peace. And if, you know, basically, what
Speaker 0: they're saying is if it looks like somebody's
Speaker 0: about to, you know, punch someone or kick
Speaker 0: someone or start a riot at a protest,
Speaker 0: which are all actually themselves crimes. Police can
Speaker 0: choose to take the sort of intermediate step
Speaker 0: of arresting for breach of the peace or
Speaker 0: anticipate to breach the peace so they can,
Speaker 0: you know, let that person cool off without
Speaker 0: actually charging them with something like assault. And
Speaker 0: that's sort of what how it functions in
Speaker 0: our system these days. So the court also
Speaker 0: made clear though that police, you know, like
Speaker 0: I said, can't arrest somebody just for being
Speaker 0: a provocateur. They say a provocateur whose lawful
Speaker 0: actions or words are feared to be prompting
Speaker 0: others to respond violently such that they may
Speaker 0: become a victim of breach of the peace,
Speaker 0: can't be arrested because that would significantly interfere
Speaker 0: with their liberty interests to arrest them. It's
Speaker 0: also a violation of the right to be
Speaker 0: free from arbitrary detentions, physical liberty is involved,
Speaker 0: security of the person because you're, like, physically
Speaker 0: grabbed might be involved, and of course according
Speaker 0: to the court frame of expression is involved
Speaker 0: because you are allowed to be a provocateur.
Speaker 0: You have a right to speak even if
Speaker 0: it's provocative. So another little wrinkle in this,
Speaker 0: which is, interesting is that the SEC said
Speaker 0: that there may be truly exceptional circumstances where
Speaker 0: police may be allowed to arrest somebody who's
Speaker 0: not about to commit a breach of the
Speaker 0: peace in furtherance of their duty to protect
Speaker 0: life. And they said this would only be
Speaker 0: an exceptional circumstances, for example, in in the
Speaker 0: hypothetical situation where a person's done nothing wrong,
Speaker 0: but an angry mob is about to attack
Speaker 0: them while they're lawfully exercising their freedom of
Speaker 0: speech, and the person refuses to comply with
Speaker 0: a lone police officer who's on the scene.
Speaker 0: So this is not what happened in Fleming.
Speaker 0: There were, you know, at least five cops.
Speaker 0: There were about ten protesters. So the court
Speaker 0: was like, you know, that that's not okay.
Speaker 0: You can't arrest someone in that scenario. And,
Speaker 0: so they didn't have to decide whether that
Speaker 0: power exists, but it might. So long story
Speaker 0: short, if somebody's done nothing wrong that gives
Speaker 0: nothing that gives police reasonable grounds to believe
Speaker 0: they're about to commit violence, then they they
Speaker 0: could arrest them for breach of the peace.
Speaker 0: But, you know, reasonable grounds is not the
Speaker 0: lowest standard. They do have to have some
Speaker 0: level of evidence that goes beyond mere suspicion.
Speaker 0: So for example, you know, if somebody's running
Speaker 0: towards someone else with a pitchfork, police could
Speaker 0: probably arrest them for breach of the peace.
Speaker 0: But if someone's merely exercising his or her
Speaker 0: free speech rights, you know, saying provocative things
Speaker 0: as a counter protester and there are multiple
Speaker 0: cops available to arrest people if things do
Speaker 0: start to go south. The cops have a
Speaker 0: duty to protect that person's speech rights, and
Speaker 0: they absolutely should not be arresting them. And
Speaker 0: if they do, police should not be surprised
Speaker 0: if they face a charter challenge from someone
Speaker 0: like us. And, you know, the CCF would
Speaker 0: be interested in potentially taking on one of
Speaker 0: these cases one day because police do these
Speaker 0: things far too often. So, anyway, I'm trying
Speaker 0: to get a hold of Dominic. If you're
Speaker 0: listening, we should chat. Please give me a
Speaker 0: call. I think that's all I wanna say
Speaker 0: about that. Joanna, what's your reaction? What do
Speaker 0: you think after hearing this story?
Speaker 2: Well, thank you for giving the breakdown of
Speaker 2: Fleming. I think Fleming is a really important
Speaker 2: case. And my reaction to the Carty situation,
Speaker 2: while I agree that it's important sort of
Speaker 2: give operational deference to cops, and obviously a
Speaker 2: term like breach of the peace is sort
Speaker 2: of intentionally somewhat vague and allows a lot
Speaker 2: of operational flexibility. For me, it's just there
Speaker 2: were so many things the cops could have
Speaker 2: done if what they were concerned with doing,
Speaker 2: which is what, you know, giving them the
Speaker 2: best faith interpretation. There's also a less good
Speaker 2: faith interpretation available in this particular situation when
Speaker 2: you have someone like Dominic Carty, who I'm
Speaker 2: sure the cops didn't know but is, like,
Speaker 2: renowned for being very centrist and very sensible.
Speaker 2: And then you have people jumping on the
Speaker 2: flag of an OECD country in the middle
Speaker 2: of downtown Toronto. But all of which is
Speaker 2: to say there's so many things that they
Speaker 2: could have done to deescalate that don't involve
Speaker 2: arresting the guy and making him take a
Speaker 2: nap in a lockup. Like, that is a
Speaker 2: very severe infringement of liberty. They could ask
Speaker 2: to have a certain amount of space. They
Speaker 2: could, you know, keep they could like, the
Speaker 2: cops' job is to kind of put their
Speaker 2: bodies in between two hostile groups. And so
Speaker 2: it just seems to me to be unreasonable
Speaker 2: that they went to this extreme. However, as
Speaker 2: you said, there's a lot that we're not
Speaker 2: aware of. We don't know exactly what went
Speaker 2: down, but we also haven't heard anything at
Speaker 2: this point that suggests that there was a
Speaker 2: need to take Carty into custody. So, and
Speaker 2: it's important to get these things right. These
Speaker 2: things where people are literally losing their s
Speaker 2: on the street right now. It's important that
Speaker 2: Icardi is right that as much as I'm
Speaker 2: not much of a street protester myself, you
Speaker 2: democracy requires that you use your voice and
Speaker 2: your body. And he has every right to
Speaker 2: show up and express his views in what
Speaker 2: did you say it's called? I actually hadn't
Speaker 2: even heard that yet, and I, like, have
Speaker 2: lived in Toronto my whole life. What's it
Speaker 2: called now? Sanofi Square?
Speaker 0: San Sankofa Square. They just renamed Yankofa Square.
Speaker 2: What what's Sankofa?
Speaker 0: About oh.
Speaker 2: I I heard that they were changing it,
Speaker 2: but I didn't hear they landed on what's
Speaker 2: Sankofa?
Speaker 0: Sankofa is I forget what it means. It
Speaker 0: means something about looking back at your history
Speaker 0: and, like, atoning for it. And it's from
Speaker 0: the Akan people, which is, Ghanaian, people who
Speaker 0: themselves were very involved in the slave trade.
Speaker 0: So it's, yeah. It became this whole controversy
Speaker 0: because basically, people were saying we need to
Speaker 0: rename young Dundas Square because Dundas was, anti,
Speaker 0: was pro slavery, and that's not actually true.
Speaker 0: He was anti slavery. And if you know
Speaker 0: anything about the history and review it, he
Speaker 0: was, instrumental in getting rid of slavery sooner
Speaker 0: than it would otherwise have been abolished. So
Speaker 0: the irony that they decided to choose the
Speaker 0: name of, or or a word from a
Speaker 0: language, derived from the people who also participated
Speaker 0: in slavery around the same time is kind
Speaker 0: of, lost on people. But, anyway, we don't
Speaker 0: need to get too deeply to that.
Speaker 2: Anyways, I'm impressed by Cardi and his wife
Speaker 2: when I read about this over the weekend
Speaker 2: or or partner. I'm not sure what it
Speaker 2: is. I I started looking at both of
Speaker 2: their social medias and, they are, like, a
Speaker 2: very, very principled and brave New Brunswick couple.
Speaker 2: His wife has gone to Ukraine. She does
Speaker 2: various international aid stuff. She organized the, like,
Speaker 2: hand holding, encircling the synagogue that was attacked
Speaker 2: in Fredericton in January. So they seem to
Speaker 2: me to be people that we want to
Speaker 2: encourage and not lock up for their bravery.
Speaker 2: What do you think, Christine?
Speaker 1: That's awesome. I wanna meet these people.
Speaker 2: Yeah. And
Speaker 1: also, Joanna, don't forget. You say you don't
Speaker 1: engage in street protests, but I do recall
Speaker 1: being in Ottawa with you when a group
Speaker 1: of Hamas loving protesters were outside a conference
Speaker 1: that we were attending and you did counter
Speaker 1: protests. So you're lucky that you were not
Speaker 1: arrested for your provocation. That is true. Another
Speaker 1: thing I I just think is, like, so
Speaker 1: absurd is that, the notion that's saying free
Speaker 1: free Palestine from Hamas is like should not
Speaker 1: be considered a provocative statement. Like literally we
Speaker 1: should free Palestine from Hamas. It's a terrible
Speaker 1: terrorist organization that's doing a huge amount of
Speaker 1: damage. The idea that that is provocative enough
Speaker 1: that we need to lock this man up
Speaker 1: is completely outrageous.
Speaker 2: Oh my god. Yeah. Like I was just
Speaker 2: reading, maybe we're going on too much of
Speaker 2: a tangent, but I was reading David Remnick
Speaker 2: has an amazing profile of, of Yahya Sinwar
Speaker 2: in the New Yorker this week. And he
Speaker 2: talks about how his his nickname, even among
Speaker 2: Palestinians, was the Butcher of Khanunists because he
Speaker 2: just established himself as just being, like, just
Speaker 2: completely brutal. Like, he heard that there was
Speaker 2: a, barber in Gaza that was like, letting
Speaker 2: his customers look at nudie magazines in the
Speaker 2: back or something. Like he just heard a
Speaker 2: rumor, and he, like, butchered him with an
Speaker 2: ax himself. And, like, these are things that
Speaker 2: are, like, not disputed. Like, these are these
Speaker 2: are not people that are going to liberate
Speaker 2: the Palestinians, guys. These Yeah. So And the
Speaker 2: reason yeah. The reason Sinwar was released from
Speaker 2: prison was because he had only murdered during
Speaker 2: the Gilad Shawi prisoner exchange. He hadn't murdered
Speaker 2: any Israelis. So I was like, well, let
Speaker 2: me see how that turned out.
Speaker 1: Yeah. It's I mean, it's just not a
Speaker 1: provocative statement. It's a completely rational statement. And,
Speaker 1: the fact that it's considered provocative is kind
Speaker 1: of a condemnation of the people who were
Speaker 1: engaging in that protest in whatever that square
Speaker 1: is called. I mean, that their perspective is
Speaker 1: completely warped. Anyway, let's head to my news
Speaker 1: headline. So I'm gonna give an update about
Speaker 1: a criminal law case, which, to be clear,
Speaker 1: we are not involved in, and I add
Speaker 1: that caveat because, obviously, as all our listeners
Speaker 1: know, we were instrumental in, the legal challenge
Speaker 1: to the Emergencies Act in response to the
Speaker 1: twenty twenty two Freedom Convoy. And this is
Speaker 1: a criminal, criminal charges and a criminal case
Speaker 1: related to one of the blockades, the in
Speaker 1: particular, the blockade in Coutts, Alberta. So this
Speaker 1: these are the criminal charges. The the case
Speaker 1: involved two men who were charged related to
Speaker 1: that blockade at Coutts, Alberta. It was one
Speaker 1: of many blockades that took place across Canada,
Speaker 1: at the border locations. And the two men
Speaker 1: were named Anthony Olenek and Chris Carbert. And
Speaker 1: they were charged with a variety of criminal
Speaker 1: offenses related to the blockade, and they were
Speaker 1: charged after the RCMP seized weapons, body armor,
Speaker 1: ammunition, all in trailers near the blockade along
Speaker 1: with a firearms license in Carbert's name. And
Speaker 1: the police later located weapons, buckets of ammunition,
Speaker 1: and two pipe bombs at Olyanek's home. So
Speaker 1: the charges that they brought against these two
Speaker 1: men were mischief, possession of a weapon for
Speaker 1: a dangerous purpose, charges against Olyanek in particular
Speaker 1: for possession of the pipe bomb, and the
Speaker 1: most serious charge charges were against both of
Speaker 1: them for conspiracy to commit murder of those
Speaker 1: are RCMP officers. So it was on the
Speaker 1: last charge, the conspiracy to commit murder, that
Speaker 1: the crown overreached. They were not convicted. This
Speaker 1: week, a jury returned a verdict of not
Speaker 1: guilty for that conspiracy to kill police, but
Speaker 1: they were convicted of the other less serious,
Speaker 1: but I would say still serious, just less
Speaker 1: serious than conspiracy to commit murder. They were
Speaker 1: still convicted of those other offenses. So in
Speaker 1: reading the case, I learned a lot of
Speaker 1: details that are kind of, like, out of
Speaker 1: Hollywood. And I don't know if you guys
Speaker 1: are aware of these details, but they're pretty
Speaker 1: they're pretty out there. So the Canadian press,
Speaker 1: described the case as a story of femme
Speaker 1: fatales, government conspiracies, the devil, and an armed
Speaker 1: invasion leading to a dystopian future. So, like,
Speaker 1: I don't know. Tell me more, Canadian press.
Speaker 1: So, apparently, in support of this charge that
Speaker 1: Olajanek and Kerbat had conspired to kill police,
Speaker 1: the crown presented evidence of three female undercover
Speaker 1: cops who had posed as volunteers during the
Speaker 1: protests and they befriended Olyanek. And they testified
Speaker 1: that Olyanek had spoken extensively about having a
Speaker 1: cache of guns and ammunition. He talked about
Speaker 1: how much he hated the police. Apparently, Olya
Speaker 1: Olyanyk told one of these officers this was
Speaker 1: his destiny and the war he was supposed
Speaker 1: to fight in and once again that he
Speaker 1: was going to die for this fight. And
Speaker 1: he said, apparently, to this officer, he wants
Speaker 1: to kill them all. And the officer testified,
Speaker 1: this undercover officer testified that Olyanek likened prime
Speaker 1: minister Trudeau to the devil and called the
Speaker 1: compliant mounties the devil's arms, and he told
Speaker 1: the officer that he did not expect to
Speaker 1: survive the blockade. So Olyanek's this was a
Speaker 1: lot of these were by text exchange, and
Speaker 1: Olyanek's lawyer accused the undercover cop of flirting
Speaker 1: with Olianek responding to his texts with heart
Speaker 1: emojis. And then they got into a debate
Speaker 1: about whether a heart reaction is about you
Speaker 1: like loving the message or loving the messenger.
Speaker 1: And the lawyer said, it should have been
Speaker 1: apparent to you that Olyanek was beginning to
Speaker 1: be interested in having a relationship with you
Speaker 1: that was beyond friendly. And the officer said,
Speaker 1: I didn't feel that way. That wasn't the
Speaker 1: impression I was getting. And then in a
Speaker 1: videotaped interrogation by police after his arrest, Olyanec
Speaker 1: said that he and his comrades only wanted
Speaker 1: to play the role of protectors of the
Speaker 1: people in Coutts, and that the goal was
Speaker 1: to take a stand against the takeover of
Speaker 1: Canadian freedoms by tyrants, including the United Nations
Speaker 1: and Chinese communists. So a lot of stuff
Speaker 1: there, but don't worry. It was not just
Speaker 1: Olyanek. There's lots of drama related to Carbutt,
Speaker 1: who is a self proclaimed prepper. If you
Speaker 1: don't know what a prepper is, there's a
Speaker 1: really good show on Netflix that describes, like,
Speaker 1: how to be a prepper. It's pretty cool.
Speaker 1: You basically are preparing for the apocalypse. So
Speaker 1: you people have different prepper styles. Like, they'll,
Speaker 1: stockpile different types of things depending on what
Speaker 1: type of apocalypse they are anticipating. Recommend this
Speaker 1: this show about preppers on Netflix. It's pretty
Speaker 1: interesting. Anyway, he's a prepper, and he told
Speaker 1: the court that he was prepared to head
Speaker 1: to the mountains and do whatever was necessary
Speaker 1: if someone tried to vaccinate him. And, apparently,
Speaker 1: he texted his mom saying, mom, I am
Speaker 1: fine. If they start the violence, I'm just
Speaker 1: telling you there will be war and casualties
Speaker 1: of war. I don't think you truly understand
Speaker 1: what this is for and about. If we
Speaker 1: lose here, I will likely die in the
Speaker 1: war. So wow. He also admitted to bringing
Speaker 1: a restricted weapon, called a Panther Arms AR
Speaker 1: fifteen assault rifle to Coutts, which was then
Speaker 1: seized by police and describe and he described
Speaker 1: the police as losers and the enemy, but
Speaker 1: he later said that he was embarrassed to
Speaker 1: say that. He said it was dumb, and
Speaker 1: he regretted calling the police losers. Okay. Well,
Speaker 1: anyway, the jury found them not guilty on
Speaker 1: the conspiracy to commit murder charge, and the
Speaker 1: CBC reported that when the not guilty charge
Speaker 1: was read out in court, there was a
Speaker 1: loud gasp, and then someone later outside yelled
Speaker 1: freedom. And, obviously, this is some wacky stuff.
Speaker 1: And the weapons charges they were convicted of,
Speaker 1: as I said, while less seriously less serious
Speaker 1: than the conspiracy charges, are still serious. But,
Speaker 1: basically, I think that the conspiracy charge was
Speaker 1: overcharging. And we've we've had some debates online
Speaker 1: with a particular academic, who said to me
Speaker 1: when I raised concerns about a totally unrelated
Speaker 1: issue, was concerned about bill c six sixty
Speaker 1: three, which relates to online harms. And I
Speaker 1: said one of the problems, with giving these
Speaker 1: really high charges is that the crown can
Speaker 1: overcharge in the hopes of getting a plea
Speaker 1: deal. And it looks to me and it
Speaker 1: looks to others other observers that that's what
Speaker 1: happened here, that, the the the charge of
Speaker 1: conspiracy to commit murder was an overcharge to
Speaker 1: create pressure to to lead to a plea
Speaker 1: deal, which ultimately didn't happen in this case.
Speaker 1: But it kind of just shows the point
Speaker 1: that, yes, the crown does overcharge and giving,
Speaker 1: like, really high, the potential to bring really
Speaker 1: serious charges in c sixty three is an
Speaker 1: issue because crown does overcharge in order to
Speaker 1: get leverage to do a plea deal. So,
Speaker 1: I mean, like, I'm bringing in a personal
Speaker 1: grievance now with this academic who said that
Speaker 1: doesn't happen. Maybe don't take advice of academics
Speaker 1: about, like, what actual practice of law is
Speaker 1: like because sometimes they don't know.
Speaker 2: Mhmm.
Speaker 1: So, I'm not the only one who thinks
Speaker 1: this was an overcharge. Oleonics' lawyer said, I
Speaker 1: never believed since I took this file that
Speaker 1: there was evidence that would support a finding
Speaker 1: of guilt on the conspiracy charge. So it's
Speaker 1: always a tremendous relief, but it's not surprising.
Speaker 1: We had a thoughtful jury that took plenty
Speaker 1: of time to think it over. And Carbutt's
Speaker 1: lawyer said, I think it was an overcharge
Speaker 1: to begin with, and I'm glad they came
Speaker 1: back with the verdict that they did. So
Speaker 1: I don't have much more to add than,
Speaker 1: wow, I did not know about all of
Speaker 1: these, like, femme fatale, undercover protesters and, like,
Speaker 1: all of this, drama related to the case.
Speaker 1: Maybe I'm gonna have to rethink heart emoji
Speaker 1: reacts to things because apparently that's flirting. That's
Speaker 1: what the allegation was here. But I don't
Speaker 1: know. What do you think, Josh?
Speaker 0: I think it's, super interesting, and I'm glad
Speaker 0: you, I'm glad you talked about it. The
Speaker 0: well, first of all, this is very minor
Speaker 0: point, but, you mentioned that body armor was
Speaker 0: found, and I've been reliably informed that it
Speaker 0: was not body armor. It was just a
Speaker 0: tactical vest that anyone can buy a Canadian
Speaker 0: tire. So, small minor point. You know, this
Speaker 0: what happened at Coutts, like, this particular case
Speaker 0: with these two guys, it's the most serious
Speaker 0: thing that happened during the Freedom Convoy, and
Speaker 0: they faced really serious charges. And so everyone
Speaker 0: sort of walked away with the impression that,
Speaker 0: like, oh, some bad things happened during the
Speaker 0: freedom convoy. Well, the most serious charge, nobody
Speaker 0: is actually convicted of because it was overcharging.
Speaker 0: And the other point is, you know, Coutts
Speaker 0: is one part of the country. It's in
Speaker 0: Alberta. And the Emergencies Act is very clear
Speaker 0: that the threat can't you know, for it
Speaker 0: to be a national emergency, it has to
Speaker 0: seriously endanger the lives, health, or safety of
Speaker 0: Canadians and be of such proportions or nature
Speaker 0: as to exceed the capacity or authority of
Speaker 0: a province to deal with. And in this
Speaker 0: particular case, Alberta's RCMP completely dealt with the
Speaker 0: situation at Coutts. Yeah. So, you know, from
Speaker 0: a federal federalism perspective, you basically have the
Speaker 0: federal government saying, hey, Alberta. This is a
Speaker 0: national emergency. Alberta is saying, no. It's not.
Speaker 0: We don't need your help. We used our
Speaker 0: own RCMP because the RCMP and Alberta are
Speaker 0: under contract to the province to deal with
Speaker 0: this, and they did. And it's it's just
Speaker 0: like Windsor, where Ontario police, you know, they
Speaker 0: dealt with the situation there, which was also
Speaker 0: serious, but the police were able to deal
Speaker 0: with it at at the provincial level. So
Speaker 0: not a national emergency even though, you know,
Speaker 0: some serious relatively serious things did happen in
Speaker 0: in Alberta specifically. So that's all I wanna
Speaker 0: say about that. Joanna, what do you think?
Speaker 2: Well, I just have one question. Was the
Speaker 2: emoji hearts, was she tapping on that was
Speaker 2: she reacting with hearts on the message? Or
Speaker 2: was she sending actual hearts as a message?
Speaker 2: Because that's two completely different things.
Speaker 1: It wasn't clear from the reporting. It seemed
Speaker 1: from the reporting to me, like, she was
Speaker 1: doing a heart emoji react. Oh. Okay. I
Speaker 1: don't think it's flirting.
Speaker 2: No. That I do. I don't know. Like,
Speaker 2: I yeah. I do to, like, our board
Speaker 2: chairman. Like, I do it all the time,
Speaker 2: you know, to my dad. You're listening a
Speaker 2: lot a row of hearts, that is different
Speaker 2: characters.
Speaker 1: Stand alone heart emojis is I kinda I
Speaker 1: do think is flirting. Heart reacts? I don't
Speaker 1: know. So I I I actually am not
Speaker 1: sure. It seemed from the reporting like it
Speaker 1: was a react emoji, but I don't know.
Speaker 1: Well, then that
Speaker 2: is definitely, you know, throwing throwing the throwing
Speaker 2: the ball too far. But, yeah, I mean,
Speaker 2: the the mens rea for conspiracy is that
Speaker 2: you have to have crystallized a plan in
Speaker 2: your mind, and that's kind of difficult for
Speaker 2: the crown to prove. But it's interesting that
Speaker 2: they chose the honeypot method method going undercover
Speaker 2: and getting although that has been argued to
Speaker 2: be more reliable than the mister big approach.
Speaker 2: So that where they would have, like, sent
Speaker 2: in some, like, gangster who's like, you know,
Speaker 2: I'm high up in Diagholon, and I I
Speaker 2: can help you. Then there's like more of
Speaker 2: a motivation to start boasting and start saying
Speaker 2: things that are gonna be even less reliable.
Speaker 1: So actually Well, definitely men never boast to
Speaker 1: impress women.
Speaker 0: Yeah.
Speaker 2: Yeah. Yeah. I mean, the risk is there
Speaker 2: in either case. But anyways, this sounds reasonable
Speaker 2: to me. I mean, look, these guys were
Speaker 2: caught up with some sketchy stuff. That's the
Speaker 2: weapons cache. That's pretty cut and dry, but
Speaker 2: I don't really know. I I guess you
Speaker 2: alluded to the reason, but it seemed unwise
Speaker 2: for the crown to overplay their hand as
Speaker 2: they did. So let's take a break, and
Speaker 2: we'll come back. And I'll tell you about,
Speaker 2: the sad story of a Waterloo farmer who
Speaker 2: turned out to be sitting on rare historical
Speaker 2: artifacts on his property.
Speaker 3: Hi. This is Russell from the Canadian Constitution
Speaker 3: Foundation. Did you know that CCF offers free
Speaker 3: online law courses? Our latest course dives deep
Speaker 3: into free expression with five lessons taught by
Speaker 3: some of Canada's leading constitutional experts. All you
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Speaker 2: Okay. So we wanna talk a little bit
Speaker 2: about the story of a farmer in the
Speaker 2: Waterloo region named Bruce Castle, who has been
Speaker 2: quoted about four hundred thousand dollars in cost
Speaker 2: for a publicly provincially mandated archaeological assessment. So
Speaker 2: he's been told by the Ontario minister of
Speaker 2: culture and multiculturalism that he will be fined
Speaker 2: or possibly even jailed under a violation of
Speaker 2: the Ontario Heritage Act if he disrupts the
Speaker 2: artifacts that have been found on his land.
Speaker 2: So this started more than four years ago
Speaker 2: when Bruce decided to develop a field on
Speaker 2: his property that he used to farm, and
Speaker 2: he wanted to build a house there. He's
Speaker 2: seventy five years old and he wanted to
Speaker 2: build a house for him and his wife
Speaker 2: to retire to. But first he was mandated
Speaker 2: to get an archaeological assessment of the land.
Speaker 2: And so the first archaeologist he hired, did
Speaker 2: a first stage assessment and a second stage
Speaker 2: assessment and he was given a budget at
Speaker 2: the end which totaled about four hundred thousand
Speaker 2: dollars and included fees to consult with relevant
Speaker 2: indigenous groups. And the reason is that for
Speaker 2: at the stage two assessment, archaeologists identified a
Speaker 2: hundred and thirty four pre contact Aboriginal artifacts
Speaker 2: or I suppose indigenous artifacts including scrapers and
Speaker 2: and projectile points in an area of the
Speaker 2: field. And the archaeologists assessed that the site
Speaker 2: was interpreted to be and this is just
Speaker 2: interesting in general. I mean, we'll get to
Speaker 2: what it means for castle. But this was
Speaker 2: interpreted that this land was at one point
Speaker 2: used as a large area of seasonal temporary
Speaker 2: seasonal occupation by indigenous communities throughout the Middle
Speaker 2: Archaic period. So that's six thousand to eight
Speaker 2: thousand years ago, and the report says that
Speaker 2: hunting and hide processing were undertaken at the
Speaker 2: site as well as the production and maintenance
Speaker 2: of formal tools and projectile points. What about
Speaker 2: projectile points? Is that like a weapon or
Speaker 2: something? Arrowheads. Okay. Cool. And they also found,
Speaker 2: about fifteen meters away, the archaeologists found twelve
Speaker 2: pieces of Onondaga chirp chipping detritus, which they
Speaker 2: use to identify, quote, a small area of
Speaker 2: unknown function occupied by unspecified indigenous people during
Speaker 2: the pre contact period and it's a hard
Speaker 2: sedimentary rock. And so Kassel, not being able
Speaker 2: to afford this four hundred thousand dollar fee
Speaker 2: to, to extract, the extract the artifacts, reached
Speaker 2: out to the minister of indigenous affairs in
Speaker 2: Ontario as well as premier Doug Ford. And
Speaker 2: basically their offices seem to be, stonewalling him.
Speaker 2: He also sent a letter to Michael Ford,
Speaker 2: who's the minister of citizenship and multiculturalism that
Speaker 2: basically no help. The determination that basically no
Speaker 2: help. The determination falls within the roles of
Speaker 2: ministry officials. This is not a political decision.
Speaker 2: We can't intervene. Sorry. We can't help you
Speaker 2: out. He did shop around. Castle did shop
Speaker 2: around for some other estimates, and he only
Speaker 2: was able to get one for a stage
Speaker 2: four assessment which was the four hundred thousand
Speaker 2: dollars assessment. And this is not the first
Speaker 2: time that this has happened in Canada. There
Speaker 2: have been other homeowners that have been shocked
Speaker 2: by high costs following unexpected and publicly mandated
Speaker 2: archaeological assessments. And there's a case that's considered
Speaker 2: precedential from two thousand six, when a woman
Speaker 2: named Wendy McKay or McKay of BC was
Speaker 2: built sixty seven thousand dollars in initial costs
Speaker 2: for archaeological work and inspections, because, the piece
Speaker 2: of forest that she owned, she wanted to,
Speaker 2: she wanted to develop. There was an old
Speaker 2: house on it, and she just wanted to
Speaker 2: demolish it and build a new one. And
Speaker 2: she was billed first sixty seven thousand dollars
Speaker 2: and then in, and then in excess of
Speaker 2: a hundred and seventeen thousand dollars. So she
Speaker 2: sued the province for damages for loss in
Speaker 2: her property value and the delays in constructions
Speaker 2: And the BC and initially, her claim was
Speaker 2: rejected by the BC trial court, but the
Speaker 2: BC court of appeal ruled in McKay's favor
Speaker 2: and determined that the province had no authority
Speaker 2: to require McKay to pay for a heritage
Speaker 2: inspection or investigation. So I've been thinking about
Speaker 2: this this, there's kind of two sort of
Speaker 2: warring principles here. The first is caveat emptor,
Speaker 2: so buyer beware. So when you buy land
Speaker 2: and beyond the sort of inspection reports and
Speaker 2: stuff like that, there is some aspect of,
Speaker 2: you know, it's your land, so any unforeseen
Speaker 2: circumstances or I guess historic indigenous artifacts are
Speaker 2: kind of on you. But the rationale is
Speaker 2: different when the like, it cuts both ways.
Speaker 2: If you're gonna say that you take on
Speaker 2: all the risks, then you get to decide
Speaker 2: what to do with that eventuality. Because from
Speaker 2: presumably from Bruce Castle's perspective, he would be
Speaker 2: happy with just moving ahead by building his
Speaker 2: dream retirement home and knowing that he also
Speaker 2: has this fascinating rich sedimentary history under his
Speaker 2: soil. It's the state that's saying, no, we
Speaker 2: we have a, you know, a historic and
Speaker 2: archaeological interest in this so you need to
Speaker 2: pay up to have it assessed and to
Speaker 2: have everything extracted. Mark Milke was with at
Speaker 2: a conference the other week, great fellow. He's
Speaker 2: the president of the Aristotle Foundation. His opinion
Speaker 2: is that if you as a private property
Speaker 2: owner are forced to endure regulation that could
Speaker 2: cost you this much money, it devalues your
Speaker 2: property or could break you and that's not
Speaker 2: a fair approach to regulating private property. He
Speaker 2: also mentions that in Europe, if the government
Speaker 2: introduces a regulation that's very costly for you,
Speaker 2: it's the burden on the government to pay
Speaker 2: for it. And he says on taxpayers oh,
Speaker 2: Christine, I'm curious what you're gonna think about
Speaker 2: this. He says, I don't normally recommend that
Speaker 2: taxpayers take another bill, but in this case,
Speaker 2: I think it's justified. So so yeah. I
Speaker 2: think if the if the principle is going
Speaker 2: to be you take on the risks, then
Speaker 2: you should be able to decide what to
Speaker 2: do about those risks. But equally, I see
Speaker 2: that, yeah, the state has, an interest in
Speaker 2: preserving the history and the archaeological integrity of
Speaker 2: our land. And it does seem just, like,
Speaker 2: fundamentally unfair if it's the state that has
Speaker 2: the interest in it that the cost remains
Speaker 2: on the landowner. So I'll be interested to
Speaker 2: see where this case goes. What do you
Speaker 2: think, Christine? Can the can we have another
Speaker 2: tax added in this specific circumstance?
Speaker 1: Well, what I would say is that this
Speaker 1: creates a moral hazard because if you create
Speaker 1: a situation where the cost of finding artifacts
Speaker 1: is so burdensome on the individual, they might
Speaker 1: just not find the artifacts. Right? Like you
Speaker 1: might just say, I'm bringing in a bulldozer
Speaker 1: and I'm paying the guys who found the
Speaker 1: pointy projectiles, you know, I'll pay them ten
Speaker 1: grand to dump it instead of paying four
Speaker 1: hundred grand to be let the government know
Speaker 1: that I found them. So I'm not saying
Speaker 1: that that's the right thing to do. I'm
Speaker 1: just saying that if you create this situ
Speaker 1: if you create this costly situation that prevents
Speaker 1: someone from building a home on their own
Speaker 1: property, you're you have to acknowledge that you're
Speaker 1: gonna cause people to make rational economic choices.
Speaker 1: And that choice in a lot of situations
Speaker 1: will result in the destruction of artifact. Yeah.
Speaker 1: Josh, what do you think?
Speaker 0: I would just say don't take what Christine
Speaker 0: just said as legal advice. Is not advice.
Speaker 0: I'm just kidding.
Speaker 1: Not do that. I'm just
Speaker 0: saying that
Speaker 1: the government is not fair that that could
Speaker 1: be a reaction to this.
Speaker 0: When when things get that expensive, you know,
Speaker 0: people are gonna try and go around the
Speaker 0: the rules. I mean, I don't even know
Speaker 0: if the government really has an interest in
Speaker 0: finding artifacts on in terms of the archaeologists
Speaker 0: and the consultants. They're probably making huge profits
Speaker 0: off of this poor landowner who's used that
Speaker 0: land before and is now, you know, trying
Speaker 0: to do the right thing by, by all
Speaker 0: accounts. But it reminds me of, you know,
Speaker 0: real estate law in, in law school where
Speaker 0: they teach you, you know, if you're gonna
Speaker 0: buy any sort of rural property before you
Speaker 0: even sign that agreement of purchase and sale,
Speaker 0: you should be consulting a lawyer because these
Speaker 0: types of things can come up and you
Speaker 0: don't see them coming and you end up
Speaker 0: with a property, that you've agreed to buy
Speaker 0: that is, you you know, essentially worthless in
Speaker 0: some cases if it's gonna cost you that
Speaker 0: much to get around the regulations and
Speaker 1: Can you get
Speaker 0: this all set?
Speaker 1: Policy for that? Like, can you get indigenous
Speaker 1: artifact insurance? Oh, that's
Speaker 0: the one that I bet you it's excluded
Speaker 0: from the the the common policies, but I
Speaker 0: don't know. It's a really good question. Again,
Speaker 0: consult your real estate lawyer, not the not
Speaker 0: a podcast. But speaking of worthless, so the
Speaker 0: other thing I'm thinking here is, you know,
Speaker 0: there's this ancient sort of common law property
Speaker 0: law principle that if if the government takes
Speaker 0: your property, they have to compensate you for
Speaker 0: that. Right? Like, we've talked about expropriation before
Speaker 0: on this podcast and and takings. And the
Speaker 0: government generally does have an ability to take
Speaker 0: your property for for certain purposes, but they
Speaker 0: do have to compensate you for it. Right?
Speaker 0: So here, I feel like the governments, if
Speaker 0: they claim there's an interest in having eight
Speaker 0: thousand year old projectiles dug up from this
Speaker 0: property, which I'm a little skeptical of. But
Speaker 0: if that's if if they're getting a benefit
Speaker 0: out of that, then they ought to be
Speaker 0: the ones paying up. So I question whether
Speaker 0: this is is is a taking. But, not
Speaker 0: something I've looked into too deeply. So we'll
Speaker 0: have to keep, keep researching this question and
Speaker 0: see, see where that goes. So I think
Speaker 0: we should move on to bad legal takes.
Speaker 0: Who wants to go first? Christine, wanna take
Speaker 0: it away?
Speaker 1: I can go first. Mine is really gross,
Speaker 1: guys. FYI. So my Trigger warning. Trigger warning.
Speaker 1: My bad legal take relates to this weird
Speaker 1: story about Wasaga Beach, which is a beach
Speaker 1: town in Ontario, just north of Toronto. And
Speaker 1: allegedly, at Wasaga Beach, people have been pooping
Speaker 1: on the beach. And this lady on TikTok
Speaker 1: named Natalie Lynn, she lives in Wasaga right
Speaker 1: by the beach, and she posted a series
Speaker 1: of TikTok videos about how people visiting the
Speaker 1: beach, so not not residents of Wasaga, but,
Speaker 1: like, other people from other towns are coming
Speaker 1: to the beach and pooping on it. And
Speaker 1: they're burying their poop, and they're also burying
Speaker 1: dirty diapers. And she said she's caught people
Speaker 1: doing it and yelled at them, and then
Speaker 1: her daughter has dug up really gross stuff
Speaker 1: like this while playing in the sand, and
Speaker 1: she said some people set up tents on
Speaker 1: the beach that are kind of like, you
Speaker 1: know, out how tent outhouses, and they put
Speaker 1: the tent up and then they dig a
Speaker 1: pit in the in the sand inside the
Speaker 1: tent, and then they poop in the pit.
Speaker 1: And she said that her daughter's friend fell
Speaker 1: in one of these poop pits. Ew. Yeah.
Speaker 1: I know. It's really gross. So she said
Speaker 1: that people who are doing this are Indians
Speaker 1: and or immigrants, like in East Indians. And
Speaker 1: this resulted in a bunch of claims that
Speaker 1: she is racist, and she's responded to these
Speaker 1: claims that she's a racist by saying that
Speaker 1: she is indigenous herself and that her daughter,
Speaker 1: is half Indian, like, East Indian, and her
Speaker 1: daughter's father is Indian. And she said that
Speaker 1: she doesn't have any particular care about who
Speaker 1: is doing it. Just she's just saying what
Speaker 1: her experience is and calling out unhygienic behavior
Speaker 1: happening in her backyard so that she can
Speaker 1: warn other people so other people don't fall
Speaker 1: in these poop beds. Now I don't know
Speaker 1: if people are pooping on the beach at
Speaker 1: Wasaga. And if they are, I don't know
Speaker 1: who they are. This the the mayor of
Speaker 1: Wasaga Beach has said this is misinformation and
Speaker 1: that there isn't poop on the beach. But
Speaker 1: former bylaw officers interviewed have said that there
Speaker 1: is poop on the beach. So I don't
Speaker 1: know what's true, but my bad legal take
Speaker 1: relates to what happened next. So Nati says
Speaker 1: that after her TikToks blew up, the there
Speaker 1: was province wide coverage of the beach pooping
Speaker 1: issue. And then one day, Hallease showed up
Speaker 1: at her door, and she actually recorded the
Speaker 1: interaction with police. It was an OPP officer
Speaker 1: who came to her home. She let him
Speaker 1: into the house, and he told her, and
Speaker 1: I'll quote what he said, someone called in
Speaker 1: about someone posting things on TikTok about East
Speaker 1: Indians pooping on the beach. He said that
Speaker 1: there have been no incidents on poop of
Speaker 1: pooping on the beach recently and that it's
Speaker 1: an old incident. And she said, no. It's
Speaker 1: recent. My daughter's friend just fell in one
Speaker 1: of these pits. My daughter has dig dug
Speaker 1: this stuff up. I've caught people pooping on
Speaker 1: the beach. And the police officer said, quote,
Speaker 1: maybe don't note the particular race of the
Speaker 1: people who are pooping on the beach. And
Speaker 1: she said that she's entitled to speak about
Speaker 1: her experience and that she's not racist, and
Speaker 1: her daughter is Indian. And the OPP said
Speaker 1: instead she should just encourage people to call
Speaker 1: by law, which she already has been doing,
Speaker 1: obviously. So my bad legal tag goes to
Speaker 1: the police. I mean, the officer, he from
Speaker 1: the interaction, he was nice and respectful, but
Speaker 1: police should not be going to people's homes
Speaker 1: to chastise them about what they post on
Speaker 1: social media. It's a really troubling interaction to
Speaker 1: me, and it sort of shows an operating
Speaker 1: operationalization of our concerns around Bill c sixty
Speaker 1: three, which I've already referenced in this podcast.
Speaker 1: That's the online harms bell. It shows people
Speaker 1: are willing to weaponize concepts of hate speech.
Speaker 1: Like, this is clearly not hate speech, but
Speaker 1: some people don't know what that means, and
Speaker 1: they call the police anyway and send the
Speaker 1: police after this woman because they don't like
Speaker 1: her TikToks. So my concern is, you know,
Speaker 1: this is already happening without c sixty three.
Speaker 1: If c sixty three is passed, you know,
Speaker 1: would human rights tribunal bureaucrats or human rights
Speaker 1: commission bureaucrats be investigating this woman and taking
Speaker 1: her to the tribunal to defend her comments
Speaker 1: that people are pooping on the beach. And
Speaker 1: and frankly, if what she's saying is accurate,
Speaker 1: this is actually important information. We don't want
Speaker 1: our kids falling in poop pits on the
Speaker 1: beach. We wanna know the truth. And look,
Speaker 1: the mayor has said that this is misinformation,
Speaker 1: but, obviously, the mayor is also interested in
Speaker 1: trying to make sure his town doesn't have
Speaker 1: this reputation so people continue to visit it.
Speaker 1: So I actually think it's important information if
Speaker 1: it's accurate. And either way, the police should
Speaker 1: not be doing this. Like, this happens in
Speaker 1: England where the police, like, show up to
Speaker 1: knock on people's doors to, you know, chastise
Speaker 1: them about noncriminal things that they have done.
Speaker 1: Like, leave people alone. This is not a
Speaker 1: police issue. Anyway, Josh, what's your bad legal
Speaker 1: take this week?
Speaker 0: My bad legal take goes to Amnesty International,
Speaker 0: which has named a Wet'suwet'en chief named Adam
Speaker 0: Gagnon or I'm not sure if that's how
Speaker 0: you pronounce it in BC. But anyway, Adam
Speaker 0: Gagneaux as their first prisoner of conscience, and
Speaker 0: he was he's serving a sixty day sentence
Speaker 0: for interfering with the twenty one twenty one
Speaker 0: construction of the Coastal GasLink natural gas pipeline
Speaker 0: in Northern BC after allegations that he and
Speaker 0: others seized and disabled heavy equipment and blocked
Speaker 0: the road to the pipeline and the actual
Speaker 0: sentence is for contempt of court. And I
Speaker 0: don't actually know actually know the details, but,
Speaker 0: you know, sometimes that means the courts ordered
Speaker 0: protesters to, you know, stop blocking construction, and
Speaker 0: they've ignored that order. So that might be
Speaker 0: what happened here. Interestingly, Gonyeo's case is, or
Speaker 0: his sentence is actually just house arrest. It's
Speaker 0: not even jail unlike what Tamara Litch faced
Speaker 0: after the Freedom Convoy protest when she, allegedly
Speaker 0: breached her onerous bail conditions that basically removed
Speaker 0: her right to freedom of speech. So I
Speaker 0: would say she was more of a prisoner
Speaker 0: of conscience. And the reason I think this
Speaker 0: is a bad legal take is just because
Speaker 0: it cheapens the whole concept of conscience rights
Speaker 0: to suggest that a particular person has been
Speaker 0: denied their conscience rights just because they're not
Speaker 0: allowed to, you know, participate in the blockading
Speaker 0: or sabotaging of a pipeline that's being legally
Speaker 0: constructed after many years of consultations and court
Speaker 0: battles. Confirming its legality is, like I said,
Speaker 0: cheapening the the the concept. And I've been
Speaker 0: researching conscience rights a little bit lately. And
Speaker 0: the point is, you know, it protects deeply
Speaker 0: held moral convictions because sometimes the official morality
Speaker 0: of the state ends up being wrong and
Speaker 0: people do need space to, you know, speak
Speaker 0: out and make their conscientious objections. But it
Speaker 0: doesn't protect an unlimited right to manifest conscience
Speaker 0: in every possible way since we all have
Speaker 0: conflicting views about what's right and what's wrong.
Speaker 0: And what it really means is the government
Speaker 0: needs to consider people's conscience claims and try
Speaker 0: to accommodate those conscientious objections as much as
Speaker 0: possible. It's not it's not a veto over
Speaker 0: everyone else. And like I said, there's so
Speaker 0: many serious conscience violations happening in Canada that
Speaker 0: I think MEC could have chosen, to support
Speaker 0: someone who wasn't so obviously, you know, breaking
Speaker 0: the law. So that's my bad legal take.
Speaker 0: Joanne, all two of yours.
Speaker 2: My bad legal take of the week goes
Speaker 2: to Charlotte Dawood, who writes in The Rabble,
Speaker 2: it's time originalism came to Canada and she
Speaker 2: makes a case or tries to make a
Speaker 2: case that originalism can and should be leveraged
Speaker 2: to achieve progressive legal wins in Canada. And
Speaker 2: let me just take you through her argument.
Speaker 2: So she starts by saying that, for example,
Speaker 2: section seven and many of the other press,
Speaker 2: provisions in the Charter. So section seven, which
Speaker 2: protects, deprivations only in accordance with the principles
Speaker 2: of fundamental justice and phrases like life, liberty,
Speaker 2: and security. The person, she points out that
Speaker 2: these phrases had very little precedent in Canadian
Speaker 2: law prior to the drafting of the Charter
Speaker 2: and she infers that this is because the
Speaker 2: drafters of the Charter wanted to delegate the
Speaker 2: judicial minds and concludes that section seven was
Speaker 2: in the minds of the people who drafted
Speaker 2: it, a quote unquote constitutional blank check. So
Speaker 2: when you do originalist legal interpretation, you tend
Speaker 2: to look at the original public meaning and
Speaker 2: that usually involves looking at legislative debates. And
Speaker 2: we know that section seven was intended explicitly
Speaker 2: by Pierre Elliott Trudeau and the other drafters,
Speaker 2: and the other signatories to protect procedural and
Speaker 2: not substantive due process. This is my sort
Speaker 2: of gloss on her argument, but let's get
Speaker 2: back to her argument because she is correct
Speaker 2: that the procedural versus substantive due process protected
Speaker 2: in section seven was pretty much immediately thrown
Speaker 2: out the window in an early case decided
Speaker 2: under the charter called the BC Motor Vehicle
Speaker 2: Reference, which says, that basically even though we
Speaker 2: know the debate say it protects only procedural
Speaker 2: due process, there's democratic legitimacy in giving full
Speaker 2: effect to the Charter rights. So we're gonna
Speaker 2: say it protects substantive due process as well.
Speaker 2: But then Dawood goes on and she concludes
Speaker 2: that the Charter can be a bedrock protection
Speaker 2: for the right to abortion. And she says
Speaker 2: we should be originalists not because the constitution
Speaker 2: was perfected with the creation of the charter,
Speaker 2: but because fixing the meaning of the constitutional
Speaker 2: text in the past means that while the
Speaker 2: constitution can never mean more than what it
Speaker 2: meant at the time, nor can it ever
Speaker 2: mean less. So it seems to me she's
Speaker 2: trying to have it both ways. She's saying
Speaker 2: on the one hand, section seven, another provisions
Speaker 2: of the Charter are constitutional blank check. They
Speaker 2: have no fixed meaning. It's entirely up to
Speaker 2: judges to decide what it means. And she's
Speaker 2: also saying, but it does include the right,
Speaker 2: the right to abortion and it can never
Speaker 2: go below that. So I just I must
Speaker 2: admit, I'm not following the logical corollaries that
Speaker 2: Ms. Doblewood is trying to make. It doesn't
Speaker 2: make sense so it gets my bad legal
Speaker 2: take of the week pick. But good try.
Speaker 2: It was an interesting novel argument.
Speaker 0: Alright. So that's the show for regular listeners.
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