[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
[Speaker 3] have have to do is create a free
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[Speaker 3] all our law courses for free at the
[Speaker 3] c c f dot c a slash learn.
[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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