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[Speaker 0]
Hello and welcome to episode fifty of Not

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[Speaker 0]
Reserving Judgment, a podcast about the latest intrigues,

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[Speaker 0]
triumphs, and outrages in Canadian constitutional law. I'm

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[Speaker 0]
Joshua Hawes, counsel with the Canadian Constitution Foundation.

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[Speaker 1]
I'm Christine Van Gein, the CCF's litigation director.

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[Speaker 2]
And I'm Joanna Barron, executive director of the

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[Speaker 2]
CCF.

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[Speaker 1]
In today's episode, I'm gonna tell you about

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[Speaker 1]
the not guilty finding related to two men

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[Speaker 1]
accused of conspiracy to

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[Speaker 0]
murder

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[Speaker 1]
police in Coutts, Alberta during the Freedom Convoy.

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[Speaker 2]
I'll tell you about an Ontario farmer who's

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[Speaker 2]
being told that he needs to pay up

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[Speaker 2]
to the tune of four hundred thousand dollars

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[Speaker 2]
in archaeology fees if he wants to build

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[Speaker 2]
a house on his property after certain artifacts

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[Speaker 2]
were on Earth.

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[Speaker 0]
And we'll share our Bad Legal Takes to

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[Speaker 0]
the Weave Corps where we take a lighthearted

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[Speaker 0]
look at some legal opinions that didn't quite

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[Speaker 0]
land. But first, I wanna tell you about

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[Speaker 0]
a counter protester who stood up against Hamas

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[Speaker 0]
supporters and got arrested for it, and explain

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[Speaker 0]
why I think that decision by police may

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[Speaker 0]
have violated his rights. So I'm talking about

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[Speaker 0]
Dominic Cardi who is both a former New

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[Speaker 0]
Brunswick NDP leader and a former New Brunswick

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[Speaker 0]
progressive conservative education minister, which is, interesting. He's

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[Speaker 0]
currently interim leader of the Canadian Future Party,

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[Speaker 0]
which is an upstart centrist conservative party related

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[Speaker 0]
to the center ICE movement. And it's not

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[Speaker 0]
actually all that important who Cardi is. What's

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[Speaker 0]
important is what happened to him last Thursday

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[Speaker 0]
in Toronto. As he recounted on ex, Carty

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[Speaker 0]
was visiting Toronto when a bunch of, when

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[Speaker 0]
he heard a bunch of chanting at young

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[Speaker 0]
Dundas sorry, Sankofa Square coming from what what

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[Speaker 0]
he described as a bunch of Hamas enthusiasts,

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[Speaker 0]
and I think that description is warranted. Now

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[Speaker 0]
these protesters were blocking traffic, and they were

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[Speaker 0]
literally trampling on an Israeli flag in the

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[Speaker 0]
middle of the intersection, chanting things like long

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[Speaker 0]
live the resistance, and these are not nice

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[Speaker 0]
people. Carty waded into the crowd. It wasn't

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[Speaker 0]
a huge crowd but he waited and he

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[Speaker 0]
started chanting in the middle of it free

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[Speaker 0]
Palestine from Hamas, free Palestine from Hamas, which

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[Speaker 0]
obviously these people did not like. As he

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[Speaker 0]
puts it, this attracted negative attention, which is

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[Speaker 0]
fine, he says. He He says, quote, in

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[Speaker 0]
democracies, we have our voices and our bodies,

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[Speaker 0]
and all expect both to be protected when

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[Speaker 0]
we exercise our rights. As we live through

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[Speaker 0]
this horrible reboot of the nineteen thirties, we

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[Speaker 0]
have to use our rights to resist the

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[Speaker 0]
authoritarians. Cardiads, I was approached by a Toronto

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[Speaker 0]
police officer. He asked me to leave. I

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[Speaker 0]
declined. He left. I was met with multiple

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[Speaker 0]
threats and a good kick from assorted masked

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[Speaker 0]
weirdos. And then you can see in, a

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[Speaker 0]
video posted by the lawyer and journalist, Karam

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[Speaker 0]
Hassad, that there are various people including at

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[Speaker 0]
least one kefir masked thug physically intimidating Cardi.

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[Speaker 0]
They're yelling at him. One moment makes the

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[Speaker 0]
upside down triangle. I don't know how to

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[Speaker 0]
do it. That's a rectangle. Upside down triangle

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[Speaker 0]
with her fingers. Yeah. You got it, Chrissy.

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[Speaker 0]
I feel kindergarten. Just just she makes this

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[Speaker 0]
upside down triangle symbol, which is obviously a

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[Speaker 0]
reference to the the, the red triangle from

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[Speaker 0]
Hamas's propaganda videos, which shows who's their next

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[Speaker 0]
Israeli target.

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[Speaker 1]
Disgusting.

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[Speaker 0]
Yeah. And, you know, it's tense. Like, these

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[Speaker 0]
protests with counter protesters always are, but I

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[Speaker 0]
didn't see Cardi do anything that looked violent

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[Speaker 0]
or threatening. And, you never know, but you

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[Speaker 0]
can't see it on the video. Anyway, police

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[Speaker 0]
returned and arrested him for disturbing the peace.

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[Speaker 0]
He says he was staying at the police

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[Speaker 0]
station locked up where he took a nap,

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[Speaker 0]
and he was released after a couple of

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[Speaker 0]
hours without charges or conditions. So he writes

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[Speaker 0]
on Twitter, no more standing by. It's time

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[Speaker 0]
for standing up. Step up against extremism. Defend

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[Speaker 0]
our open society now. And he says he

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[Speaker 0]
refused to agree with police that he wouldn't

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[Speaker 0]
attend future protests. So I've reached out to

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[Speaker 0]
Cardi to try and discuss the situation because

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[Speaker 0]
I wanna know if there are more facts

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[Speaker 0]
that we're unaware of. Because, you know, based

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[Speaker 0]
on what I saw, it looks like his

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[Speaker 0]
rights were probably violated, by the police. You

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[Speaker 0]
know, I don't think he gave them any

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[Speaker 0]
reason to believe that he was about to

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breach the peace or that he had breached

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[Speaker 0]
the peace. And so this is why I'm

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[Speaker 0]
I'm concerned. And I say this based on

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[Speaker 0]
the law as outlined in the twenty nineteen

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[Speaker 0]
decision in Fleming in Ontario, which is a

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[Speaker 0]
case the CCF intervened in to defend a

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[Speaker 0]
protester, whose rights were also breached. Randy Fleming,

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[Speaker 0]
just to give the the background of the

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[Speaker 0]
story, was a resident of Caledonia, Ontario, which

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is a town where Six Nations protesters were

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terrorizing the local non indigenous townspeople for years

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[Speaker 0]
because of plans to build a housing development

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[Speaker 0]
on land that they claimed they've been promised

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[Speaker 0]
by the crown. And this involved requiring residents

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[Speaker 0]
to show six nations issued passports to get

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[Speaker 0]
to their houses. There's a brutal attack on

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[Speaker 0]
a man at the development with a two

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[Speaker 0]
by four that left him with serious, like,

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[Speaker 0]
brain damage. There was more than one arson

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[Speaker 0]
that at one point a power station was

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[Speaker 0]
burned down, which caused a big blackout. It

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[Speaker 0]
was a really ugly situation. And rather than

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[Speaker 0]
enforce the law, the Ontario government, which was

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[Speaker 0]
Dalton McGinty's government at the time, just purchased

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[Speaker 0]
the site and handed it over to six

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[Speaker 0]
nations to end all of the acrimony. Anyway,

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[Speaker 0]
Fleming was a counterprotester, so he attended this

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[Speaker 0]
rally called a flag rally where local residents

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[Speaker 0]
would just walk along the streets of Caledonia

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[Speaker 0]
in front of the development carrying big Canadian

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[Speaker 0]
flags. And on the day in question, a

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[Speaker 0]
police cruiser, two vans, and paddy wagons all

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[Speaker 0]
sort of aggressively approached Fleming, which caused him

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[Speaker 0]
to, like, walk up toward the, development site.

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[Speaker 0]
And he was carrying his flag, and police

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[Speaker 0]
were yelling at him, like, drop the flag.

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[Speaker 0]
And he refused to drop the flag, so

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[Speaker 0]
they ran up and arrested him. And they

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[Speaker 0]
put him in jail. They injured his arm,

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[Speaker 0]
and he was arrested basically just for protesting

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[Speaker 0]
with the Canadian flag. So the OPP went

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[Speaker 0]
to court and they argued that Fleming's rights

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[Speaker 0]
were not violated because they'd arrested him basically

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[Speaker 0]
for his own protection. They said someone else

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[Speaker 0]
was about to breach the peace because when

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[Speaker 0]
he walked up, there were, you know, eight

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[Speaker 0]
or ten protesters walking towards Fleming, and so

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[Speaker 0]
they had to arrest Fleming in this scenario

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[Speaker 0]
even though there were, you know, several cops

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[Speaker 0]
available to confront the protesters if they need

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[Speaker 0]
to. So, anyway, the Supreme Court in this

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[Speaker 0]
scathing twenty nineteen decision written by justice Suzanne

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[Speaker 0]
Cote, said this is not acceptable police behavior.

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[Speaker 0]
It's a violation of rights. You know, the

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[Speaker 0]
courts do have the power to do what's

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[Speaker 0]
reasonably necessary to carry out their duties, which

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[Speaker 0]
include the duties to prevent crime, to protect

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[Speaker 0]
life and property, and to keep the peace.

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[Speaker 0]
But they don't have the power to arrest

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[Speaker 0]
somebody who hasn't committed an offense, who's not

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[Speaker 0]
about to commit an offense, who hasn't breached

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[Speaker 0]
the peace, and who's not about to breach

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[Speaker 0]
the peace. They they can arrest someone just

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[Speaker 0]
to prevent a breach of the peace by

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[Speaker 0]
someone else against that person. So, anyway, the

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[Speaker 0]
court struggled a bit to define breach of

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[Speaker 0]
the piece and that's understandable because it's kind

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[Speaker 0]
of a weird concept. In one sense, originally

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[Speaker 0]
all of the crimes were breaches of the

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[Speaker 0]
peace, but then we started codifying crimes and

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[Speaker 0]
what we're left with is this more ambiguous

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[Speaker 0]
concept that's not actually a crime, but it's

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[Speaker 0]
still part of the law. And the criminal

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[Speaker 0]
code says about Breach of the Peace that

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[Speaker 0]
an officer is justified in arresting any person

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[Speaker 0]
whom he finds committing a breach of the

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[Speaker 0]
peace or believes unreasonable grounds is about to

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[Speaker 0]
join or renew a breach of the peace.

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[Speaker 0]
But all this means is the cop himself

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[Speaker 0]
or herself is not violating the law when

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[Speaker 0]
he or she arrests somebody for breaching the

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[Speaker 0]
peace. It doesn't say it's actually a crime

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[Speaker 0]
to breach the peace because it isn't a

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[Speaker 0]
crime. And so this creates this weird situation

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[Speaker 0]
where police can arrest people, without, you know,

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[Speaker 0]
charging them with anything. And the court looked

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[Speaker 0]
into various situations to try to find what

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[Speaker 0]
Breach the Peace really is. And they said,

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[Speaker 0]
quote, violence lies at the core and there

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[Speaker 0]
must be a risk of harm and violence.

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[Speaker 0]
They also said danger to the person is

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[Speaker 0]
always involved so it's not about property. And

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[Speaker 0]
they said behavior that quote is merely disruptive,

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[Speaker 0]
annoying, or unruly is not a breach of

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[Speaker 0]
the peace. And if, you know, basically, what

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[Speaker 0]
they're saying is if it looks like somebody's

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about to, you know, punch someone or kick

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[Speaker 0]
someone or start a riot at a protest,

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[Speaker 0]
which are all actually themselves crimes. Police can

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choose to take the sort of intermediate step

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[Speaker 0]
of arresting for breach of the peace or

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[Speaker 0]
anticipate to breach the peace so they can,

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[Speaker 0]
you know, let that person cool off without

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[Speaker 0]
actually charging them with something like assault. And

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[Speaker 0]
that's sort of what how it functions in

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[Speaker 0]
our system these days. So the court also

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[Speaker 0]
made clear though that police, you know, like

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[Speaker 0]
I said, can't arrest somebody just for being

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[Speaker 0]
a provocateur. They say a provocateur whose lawful

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[Speaker 0]
actions or words are feared to be prompting

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[Speaker 0]
others to respond violently such that they may

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[Speaker 0]
become a victim of breach of the peace,

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[Speaker 0]
can't be arrested because that would significantly interfere

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[Speaker 0]
with their liberty interests to arrest them. It's

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[Speaker 0]
also a violation of the right to be

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[Speaker 0]
free from arbitrary detentions, physical liberty is involved,

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[Speaker 0]
security of the person because you're, like, physically

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[Speaker 0]
grabbed might be involved, and of course according

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[Speaker 0]
to the court frame of expression is involved

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[Speaker 0]
because you are allowed to be a provocateur.

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[Speaker 0]
You have a right to speak even if

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[Speaker 0]
it's provocative. So another little wrinkle in this,

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[Speaker 0]
which is, interesting is that the SEC said

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[Speaker 0]
that there may be truly exceptional circumstances where

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[Speaker 0]
police may be allowed to arrest somebody who's

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[Speaker 0]
not about to commit a breach of the

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[Speaker 0]
peace in furtherance of their duty to protect

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[Speaker 0]
life. And they said this would only be

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[Speaker 0]
an exceptional circumstances, for example, in in the

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[Speaker 0]
hypothetical situation where a person's done nothing wrong,

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[Speaker 0]
but an angry mob is about to attack

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[Speaker 0]
them while they're lawfully exercising their freedom of

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[Speaker 0]
speech, and the person refuses to comply with

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[Speaker 0]
a lone police officer who's on the scene.

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[Speaker 0]
So this is not what happened in Fleming.

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[Speaker 0]
There were, you know, at least five cops.

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[Speaker 0]
There were about ten protesters. So the court

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[Speaker 0]
was like, you know, that that's not okay.

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[Speaker 0]
You can't arrest someone in that scenario. And,

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[Speaker 0]
so they didn't have to decide whether that

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[Speaker 0]
power exists, but it might. So long story

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[Speaker 0]
short, if somebody's done nothing wrong that gives

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[Speaker 0]
nothing that gives police reasonable grounds to believe

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[Speaker 0]
they're about to commit violence, then they they

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[Speaker 0]
could arrest them for breach of the peace.

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[Speaker 0]
But, you know, reasonable grounds is not the

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[Speaker 0]
lowest standard. They do have to have some

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[Speaker 0]
level of evidence that goes beyond mere suspicion.

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[Speaker 0]
So for example, you know, if somebody's running

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[Speaker 0]
towards someone else with a pitchfork, police could

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[Speaker 0]
probably arrest them for breach of the peace.

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[Speaker 0]
But if someone's merely exercising his or her

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[Speaker 0]
free speech rights, you know, saying provocative things

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[Speaker 0]
as a counter protester and there are multiple

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[Speaker 0]
cops available to arrest people if things do

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[Speaker 0]
start to go south. The cops have a

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[Speaker 0]
duty to protect that person's speech rights, and

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[Speaker 0]
they absolutely should not be arresting them. And

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[Speaker 0]
if they do, police should not be surprised

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[Speaker 0]
if they face a charter challenge from someone

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[Speaker 0]
like us. And, you know, the CCF would

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[Speaker 0]
be interested in potentially taking on one of

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[Speaker 0]
these cases one day because police do these

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[Speaker 0]
things far too often. So, anyway, I'm trying

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[Speaker 0]
to get a hold of Dominic. If you're

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[Speaker 0]
listening, we should chat. Please give me a

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[Speaker 0]
call. I think that's all I wanna say

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[Speaker 0]
about that. Joanna, what's your reaction? What do

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[Speaker 0]
you think after hearing this story?

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[Speaker 2]
Well, thank you for giving the breakdown of

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[Speaker 2]
Fleming. I think Fleming is a really important

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[Speaker 2]
case. And my reaction to the Carty situation,

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[Speaker 2]
while I agree that it's important sort of

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[Speaker 2]
give operational deference to cops, and obviously a

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[Speaker 2]
term like breach of the peace is sort

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[Speaker 2]
of intentionally somewhat vague and allows a lot

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[Speaker 2]
of operational flexibility. For me, it's just there

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[Speaker 2]
were so many things the cops could have

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[Speaker 2]
done if what they were concerned with doing,

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[Speaker 2]
which is what, you know, giving them the

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[Speaker 2]
best faith interpretation. There's also a less good

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[Speaker 2]
faith interpretation available in this particular situation when

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[Speaker 2]
you have someone like Dominic Carty, who I'm

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[Speaker 2]
sure the cops didn't know but is, like,

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[Speaker 2]
renowned for being very centrist and very sensible.

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[Speaker 2]
And then you have people jumping on the

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[Speaker 2]
flag of an OECD country in the middle

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[Speaker 2]
of downtown Toronto. But all of which is

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[Speaker 2]
to say there's so many things that they

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[Speaker 2]
could have done to deescalate that don't involve

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[Speaker 2]
arresting the guy and making him take a

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[Speaker 2]
nap in a lockup. Like, that is a

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[Speaker 2]
very severe infringement of liberty. They could ask

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[Speaker 2]
to have a certain amount of space. They

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[Speaker 2]
could, you know, keep they could like, the

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[Speaker 2]
cops' job is to kind of put their

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[Speaker 2]
bodies in between two hostile groups. And so

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[Speaker 2]
it just seems to me to be unreasonable

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[Speaker 2]
that they went to this extreme. However, as

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[Speaker 2]
you said, there's a lot that we're not

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[Speaker 2]
aware of. We don't know exactly what went

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[Speaker 2]
down, but we also haven't heard anything at

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[Speaker 2]
this point that suggests that there was a

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[Speaker 2]
need to take Carty into custody. So, and

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[Speaker 2]
it's important to get these things right. These

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[Speaker 2]
things where people are literally losing their s

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[Speaker 2]
on the street right now. It's important that

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[Speaker 2]
Icardi is right that as much as I'm

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[Speaker 2]
not much of a street protester myself, you

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[Speaker 2]
democracy requires that you use your voice and

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[Speaker 2]
your body. And he has every right to

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[Speaker 2]
show up and express his views in what

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[Speaker 2]
did you say it's called? I actually hadn't

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[Speaker 2]
even heard that yet, and I, like, have

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00:13:43,295 --> 00:13:44,655
[Speaker 2]
lived in Toronto my whole life. What's it

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[Speaker 2]
called now? Sanofi Square?

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[Speaker 0]
San Sankofa Square. They just renamed Yankofa Square.

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00:13:49,040 --> 00:13:49,760
[Speaker 2]
What what's Sankofa?

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00:13:50,080 --> 00:13:50,960
[Speaker 0]
About oh.

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[Speaker 2]
I I heard that they were changing it,

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00:13:52,560 --> 00:13:54,160
[Speaker 2]
but I didn't hear they landed on what's

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[Speaker 2]
Sankofa?

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[Speaker 0]
Sankofa is I forget what it means. It

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00:13:58,515 --> 00:14:02,935
[Speaker 0]
means something about looking back at your history

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[Speaker 0]
and, like, atoning for it. And it's from

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00:14:05,790 --> 00:14:12,209
[Speaker 0]
the Akan people, which is, Ghanaian, people who

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00:14:12,685 --> 00:14:15,005
[Speaker 0]
themselves were very involved in the slave trade.

324
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[Speaker 0]
So it's, yeah. It became this whole controversy

325
00:14:18,205 --> 00:14:21,889
[Speaker 0]
because basically, people were saying we need to

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[Speaker 0]
rename young Dundas Square because Dundas was, anti,

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00:14:27,024 --> 00:14:29,985
[Speaker 0]
was pro slavery, and that's not actually true.

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00:14:29,985 --> 00:14:33,024
[Speaker 0]
He was anti slavery. And if you know

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00:14:33,024 --> 00:14:35,024
[Speaker 0]
anything about the history and review it, he

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00:14:35,024 --> 00:14:38,790
[Speaker 0]
was, instrumental in getting rid of slavery sooner

331
00:14:38,790 --> 00:14:43,005
[Speaker 0]
than it would otherwise have been abolished. So

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00:14:43,005 --> 00:14:46,445
[Speaker 0]
the irony that they decided to choose the

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00:14:46,445 --> 00:14:49,645
[Speaker 0]
name of, or or a word from a

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00:14:49,645 --> 00:14:53,240
[Speaker 0]
language, derived from the people who also participated

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00:14:53,240 --> 00:14:55,000
[Speaker 0]
in slavery around the same time is kind

336
00:14:55,000 --> 00:14:58,040
[Speaker 0]
of, lost on people. But, anyway, we don't

337
00:14:58,040 --> 00:14:59,595
[Speaker 0]
need to get too deeply to that.

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00:14:59,595 --> 00:15:01,755
[Speaker 2]
Anyways, I'm impressed by Cardi and his wife

339
00:15:01,755 --> 00:15:03,515
[Speaker 2]
when I read about this over the weekend

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00:15:03,515 --> 00:15:05,195
[Speaker 2]
or or partner. I'm not sure what it

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00:15:05,195 --> 00:15:07,275
[Speaker 2]
is. I I started looking at both of

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00:15:07,275 --> 00:15:10,380
[Speaker 2]
their social medias and, they are, like, a

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00:15:10,380 --> 00:15:14,560
[Speaker 2]
very, very principled and brave New Brunswick couple.

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00:15:15,020 --> 00:15:17,305
[Speaker 2]
His wife has gone to Ukraine. She does

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00:15:17,385 --> 00:15:21,964
[Speaker 2]
various international aid stuff. She organized the, like,

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00:15:22,024 --> 00:15:25,370
[Speaker 2]
hand holding, encircling the synagogue that was attacked

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00:15:25,370 --> 00:15:28,650
[Speaker 2]
in Fredericton in January. So they seem to

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00:15:28,650 --> 00:15:31,530
[Speaker 2]
me to be people that we want to

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00:15:31,530 --> 00:15:33,850
[Speaker 2]
encourage and not lock up for their bravery.

350
00:15:33,850 --> 00:15:34,910
[Speaker 2]
What do you think, Christine?

351
00:15:35,345 --> 00:15:37,365
[Speaker 1]
That's awesome. I wanna meet these people.

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00:15:37,425 --> 00:15:37,905
[Speaker 2]
Yeah. And

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00:15:37,905 --> 00:15:41,105
[Speaker 1]
also, Joanna, don't forget. You say you don't

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00:15:41,105 --> 00:15:43,760
[Speaker 1]
engage in street protests, but I do recall

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00:15:43,760 --> 00:15:46,260
[Speaker 1]
being in Ottawa with you when a group

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00:15:46,720 --> 00:15:50,640
[Speaker 1]
of Hamas loving protesters were outside a conference

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00:15:50,640 --> 00:15:53,585
[Speaker 1]
that we were attending and you did counter

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00:15:53,585 --> 00:15:58,145
[Speaker 1]
protests. So you're lucky that you were not

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00:15:58,145 --> 00:16:03,000
[Speaker 1]
arrested for your provocation. That is true. Another

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00:16:03,000 --> 00:16:04,840
[Speaker 1]
thing I I just think is, like, so

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00:16:04,840 --> 00:16:10,060
[Speaker 1]
absurd is that, the notion that's saying free

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00:16:10,425 --> 00:16:14,665
[Speaker 1]
free Palestine from Hamas is like should not

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00:16:14,665 --> 00:16:18,105
[Speaker 1]
be considered a provocative statement. Like literally we

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00:16:18,105 --> 00:16:22,310
[Speaker 1]
should free Palestine from Hamas. It's a terrible

365
00:16:22,370 --> 00:16:24,690
[Speaker 1]
terrorist organization that's doing a huge amount of

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00:16:24,690 --> 00:16:27,705
[Speaker 1]
damage. The idea that that is provocative enough

367
00:16:27,705 --> 00:16:30,125
[Speaker 1]
that we need to lock this man up

368
00:16:30,425 --> 00:16:31,825
[Speaker 1]
is completely outrageous.

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00:16:31,825 --> 00:16:33,545
[Speaker 2]
Oh my god. Yeah. Like I was just

370
00:16:33,545 --> 00:16:35,380
[Speaker 2]
reading, maybe we're going on too much of

371
00:16:35,380 --> 00:16:37,460
[Speaker 2]
a tangent, but I was reading David Remnick

372
00:16:37,460 --> 00:16:41,060
[Speaker 2]
has an amazing profile of, of Yahya Sinwar

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00:16:41,060 --> 00:16:42,740
[Speaker 2]
in the New Yorker this week. And he

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00:16:42,740 --> 00:16:45,345
[Speaker 2]
talks about how his his nickname, even among

375
00:16:45,345 --> 00:16:48,465
[Speaker 2]
Palestinians, was the Butcher of Khanunists because he

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00:16:48,465 --> 00:16:50,865
[Speaker 2]
just established himself as just being, like, just

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00:16:50,865 --> 00:16:54,080
[Speaker 2]
completely brutal. Like, he heard that there was

378
00:16:54,080 --> 00:16:57,760
[Speaker 2]
a, barber in Gaza that was like, letting

379
00:16:57,760 --> 00:17:00,240
[Speaker 2]
his customers look at nudie magazines in the

380
00:17:00,240 --> 00:17:01,755
[Speaker 2]
back or something. Like he just heard a

381
00:17:01,755 --> 00:17:04,155
[Speaker 2]
rumor, and he, like, butchered him with an

382
00:17:04,155 --> 00:17:06,635
[Speaker 2]
ax himself. And, like, these are things that

383
00:17:06,635 --> 00:17:09,115
[Speaker 2]
are, like, not disputed. Like, these are these

384
00:17:09,115 --> 00:17:11,010
[Speaker 2]
are not people that are going to liberate

385
00:17:11,010 --> 00:17:14,690
[Speaker 2]
the Palestinians, guys. These Yeah. So And the

386
00:17:14,690 --> 00:17:17,410
[Speaker 2]
reason yeah. The reason Sinwar was released from

387
00:17:17,410 --> 00:17:20,425
[Speaker 2]
prison was because he had only murdered during

388
00:17:20,425 --> 00:17:23,385
[Speaker 2]
the Gilad Shawi prisoner exchange. He hadn't murdered

389
00:17:23,385 --> 00:17:25,545
[Speaker 2]
any Israelis. So I was like, well, let

390
00:17:25,545 --> 00:17:26,925
[Speaker 2]
me see how that turned out.

391
00:17:27,330 --> 00:17:29,090
[Speaker 1]
Yeah. It's I mean, it's just not a

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00:17:29,090 --> 00:17:33,030
[Speaker 1]
provocative statement. It's a completely rational statement. And,

393
00:17:33,810 --> 00:17:37,325
[Speaker 1]
the fact that it's considered provocative is kind

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00:17:37,325 --> 00:17:39,645
[Speaker 1]
of a condemnation of the people who were

395
00:17:39,645 --> 00:17:43,085
[Speaker 1]
engaging in that protest in whatever that square

396
00:17:43,085 --> 00:17:45,164
[Speaker 1]
is called. I mean, that their perspective is

397
00:17:45,164 --> 00:17:49,549
[Speaker 1]
completely warped. Anyway, let's head to my news

398
00:17:49,549 --> 00:17:53,470
[Speaker 1]
headline. So I'm gonna give an update about

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00:17:53,470 --> 00:17:55,554
[Speaker 1]
a criminal law case, which, to be clear,

400
00:17:55,554 --> 00:17:57,475
[Speaker 1]
we are not involved in, and I add

401
00:17:57,475 --> 00:18:00,534
[Speaker 1]
that caveat because, obviously, as all our listeners

402
00:18:00,674 --> 00:18:04,490
[Speaker 1]
know, we were instrumental in, the legal challenge

403
00:18:04,490 --> 00:18:06,890
[Speaker 1]
to the Emergencies Act in response to the

404
00:18:06,890 --> 00:18:09,450
[Speaker 1]
twenty twenty two Freedom Convoy. And this is

405
00:18:09,450 --> 00:18:12,754
[Speaker 1]
a criminal, criminal charges and a criminal case

406
00:18:13,134 --> 00:18:15,855
[Speaker 1]
related to one of the blockades, the in

407
00:18:15,855 --> 00:18:19,450
[Speaker 1]
particular, the blockade in Coutts, Alberta. So this

408
00:18:19,690 --> 00:18:22,010
[Speaker 1]
these are the criminal charges. The the case

409
00:18:22,010 --> 00:18:24,570
[Speaker 1]
involved two men who were charged related to

410
00:18:24,570 --> 00:18:27,615
[Speaker 1]
that blockade at Coutts, Alberta. It was one

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00:18:27,615 --> 00:18:30,195
[Speaker 1]
of many blockades that took place across Canada,

412
00:18:30,655 --> 00:18:33,615
[Speaker 1]
at the border locations. And the two men

413
00:18:33,615 --> 00:18:37,330
[Speaker 1]
were named Anthony Olenek and Chris Carbert. And

414
00:18:37,330 --> 00:18:39,570
[Speaker 1]
they were charged with a variety of criminal

415
00:18:39,570 --> 00:18:42,530
[Speaker 1]
offenses related to the blockade, and they were

416
00:18:42,530 --> 00:18:46,715
[Speaker 1]
charged after the RCMP seized weapons, body armor,

417
00:18:46,715 --> 00:18:50,880
[Speaker 1]
ammunition, all in trailers near the blockade along

418
00:18:50,880 --> 00:18:53,919
[Speaker 1]
with a firearms license in Carbert's name. And

419
00:18:53,919 --> 00:18:58,100
[Speaker 1]
the police later located weapons, buckets of ammunition,

420
00:18:58,559 --> 00:19:01,895
[Speaker 1]
and two pipe bombs at Olyanek's home. So

421
00:19:01,895 --> 00:19:03,735
[Speaker 1]
the charges that they brought against these two

422
00:19:03,735 --> 00:19:06,855
[Speaker 1]
men were mischief, possession of a weapon for

423
00:19:06,855 --> 00:19:11,490
[Speaker 1]
a dangerous purpose, charges against Olyanek in particular

424
00:19:11,630 --> 00:19:14,590
[Speaker 1]
for possession of the pipe bomb, and the

425
00:19:14,590 --> 00:19:17,495
[Speaker 1]
most serious charge charges were against both of

426
00:19:17,495 --> 00:19:20,375
[Speaker 1]
them for conspiracy to commit murder of those

427
00:19:20,375 --> 00:19:23,335
[Speaker 1]
are RCMP officers. So it was on the

428
00:19:23,335 --> 00:19:26,490
[Speaker 1]
last charge, the conspiracy to commit murder, that

429
00:19:26,490 --> 00:19:30,570
[Speaker 1]
the crown overreached. They were not convicted. This

430
00:19:30,570 --> 00:19:33,050
[Speaker 1]
week, a jury returned a verdict of not

431
00:19:33,050 --> 00:19:35,815
[Speaker 1]
guilty for that conspiracy to kill police, but

432
00:19:35,815 --> 00:19:39,894
[Speaker 1]
they were convicted of the other less serious,

433
00:19:39,894 --> 00:19:42,394
[Speaker 1]
but I would say still serious, just less

434
00:19:42,534 --> 00:19:45,649
[Speaker 1]
serious than conspiracy to commit murder. They were

435
00:19:45,649 --> 00:19:48,690
[Speaker 1]
still convicted of those other offenses. So in

436
00:19:48,690 --> 00:19:50,770
[Speaker 1]
reading the case, I learned a lot of

437
00:19:50,770 --> 00:19:54,015
[Speaker 1]
details that are kind of, like, out of

438
00:19:54,015 --> 00:19:56,415
[Speaker 1]
Hollywood. And I don't know if you guys

439
00:19:56,415 --> 00:19:58,515
[Speaker 1]
are aware of these details, but they're pretty

440
00:19:58,815 --> 00:20:01,970
[Speaker 1]
they're pretty out there. So the Canadian press,

441
00:20:02,669 --> 00:20:06,110
[Speaker 1]
described the case as a story of femme

442
00:20:06,110 --> 00:20:10,355
[Speaker 1]
fatales, government conspiracies, the devil, and an armed

443
00:20:10,355 --> 00:20:14,115
[Speaker 1]
invasion leading to a dystopian future. So, like,

444
00:20:14,115 --> 00:20:16,695
[Speaker 1]
I don't know. Tell me more, Canadian press.

445
00:20:16,995 --> 00:20:21,220
[Speaker 1]
So, apparently, in support of this charge that

446
00:20:21,220 --> 00:20:24,520
[Speaker 1]
Olajanek and Kerbat had conspired to kill police,

447
00:20:24,775 --> 00:20:28,395
[Speaker 1]
the crown presented evidence of three female undercover

448
00:20:28,615 --> 00:20:31,815
[Speaker 1]
cops who had posed as volunteers during the

449
00:20:31,815 --> 00:20:35,380
[Speaker 1]
protests and they befriended Olyanek. And they testified

450
00:20:35,680 --> 00:20:38,960
[Speaker 1]
that Olyanek had spoken extensively about having a

451
00:20:38,960 --> 00:20:41,760
[Speaker 1]
cache of guns and ammunition. He talked about

452
00:20:41,760 --> 00:20:44,915
[Speaker 1]
how much he hated the police. Apparently, Olya

453
00:20:44,995 --> 00:20:47,955
[Speaker 1]
Olyanyk told one of these officers this was

454
00:20:47,955 --> 00:20:50,195
[Speaker 1]
his destiny and the war he was supposed

455
00:20:50,195 --> 00:20:54,050
[Speaker 1]
to fight in and once again that he

456
00:20:54,050 --> 00:20:56,450
[Speaker 1]
was going to die for this fight. And

457
00:20:56,450 --> 00:20:59,650
[Speaker 1]
he said, apparently, to this officer, he wants

458
00:20:59,650 --> 00:21:02,755
[Speaker 1]
to kill them all. And the officer testified,

459
00:21:02,975 --> 00:21:07,695
[Speaker 1]
this undercover officer testified that Olyanek likened prime

460
00:21:07,695 --> 00:21:10,850
[Speaker 1]
minister Trudeau to the devil and called the

461
00:21:10,850 --> 00:21:14,770
[Speaker 1]
compliant mounties the devil's arms, and he told

462
00:21:14,770 --> 00:21:16,930
[Speaker 1]
the officer that he did not expect to

463
00:21:16,930 --> 00:21:21,215
[Speaker 1]
survive the blockade. So Olyanek's this was a

464
00:21:21,215 --> 00:21:23,455
[Speaker 1]
lot of these were by text exchange, and

465
00:21:23,455 --> 00:21:27,350
[Speaker 1]
Olyanek's lawyer accused the undercover cop of flirting

466
00:21:27,409 --> 00:21:30,529
[Speaker 1]
with Olianek responding to his texts with heart

467
00:21:30,529 --> 00:21:33,029
[Speaker 1]
emojis. And then they got into a debate

468
00:21:33,330 --> 00:21:37,674
[Speaker 1]
about whether a heart reaction is about you

469
00:21:37,674 --> 00:21:40,335
[Speaker 1]
like loving the message or loving the messenger.

470
00:21:41,674 --> 00:21:44,700
[Speaker 1]
And the lawyer said, it should have been

471
00:21:44,700 --> 00:21:47,820
[Speaker 1]
apparent to you that Olyanek was beginning to

472
00:21:47,820 --> 00:21:50,060
[Speaker 1]
be interested in having a relationship with you

473
00:21:50,060 --> 00:21:53,245
[Speaker 1]
that was beyond friendly. And the officer said,

474
00:21:53,245 --> 00:21:54,924
[Speaker 1]
I didn't feel that way. That wasn't the

475
00:21:54,924 --> 00:21:57,804
[Speaker 1]
impression I was getting. And then in a

476
00:21:57,804 --> 00:22:01,860
[Speaker 1]
videotaped interrogation by police after his arrest, Olyanec

477
00:22:02,000 --> 00:22:05,200
[Speaker 1]
said that he and his comrades only wanted

478
00:22:05,200 --> 00:22:07,279
[Speaker 1]
to play the role of protectors of the

479
00:22:07,279 --> 00:22:10,000
[Speaker 1]
people in Coutts, and that the goal was

480
00:22:10,000 --> 00:22:12,875
[Speaker 1]
to take a stand against the takeover of

481
00:22:12,875 --> 00:22:16,735
[Speaker 1]
Canadian freedoms by tyrants, including the United Nations

482
00:22:17,355 --> 00:22:21,210
[Speaker 1]
and Chinese communists. So a lot of stuff

483
00:22:21,269 --> 00:22:24,070
[Speaker 1]
there, but don't worry. It was not just

484
00:22:24,070 --> 00:22:27,529
[Speaker 1]
Olyanek. There's lots of drama related to Carbutt,

485
00:22:27,815 --> 00:22:30,375
[Speaker 1]
who is a self proclaimed prepper. If you

486
00:22:30,375 --> 00:22:32,215
[Speaker 1]
don't know what a prepper is, there's a

487
00:22:32,215 --> 00:22:35,195
[Speaker 1]
really good show on Netflix that describes, like,

488
00:22:35,495 --> 00:22:37,595
[Speaker 1]
how to be a prepper. It's pretty cool.

489
00:22:38,169 --> 00:22:40,830
[Speaker 1]
You basically are preparing for the apocalypse. So

490
00:22:41,049 --> 00:22:43,710
[Speaker 1]
you people have different prepper styles. Like, they'll,

491
00:22:44,409 --> 00:22:46,809
[Speaker 1]
stockpile different types of things depending on what

492
00:22:46,809 --> 00:22:51,525
[Speaker 1]
type of apocalypse they are anticipating. Recommend this

493
00:22:51,525 --> 00:22:53,685
[Speaker 1]
this show about preppers on Netflix. It's pretty

494
00:22:53,685 --> 00:22:56,970
[Speaker 1]
interesting. Anyway, he's a prepper, and he told

495
00:22:56,970 --> 00:22:58,490
[Speaker 1]
the court that he was prepared to head

496
00:22:58,490 --> 00:23:01,529
[Speaker 1]
to the mountains and do whatever was necessary

497
00:23:01,529 --> 00:23:04,575
[Speaker 1]
if someone tried to vaccinate him. And, apparently,

498
00:23:04,575 --> 00:23:07,695
[Speaker 1]
he texted his mom saying, mom, I am

499
00:23:07,695 --> 00:23:09,775
[Speaker 1]
fine. If they start the violence, I'm just

500
00:23:09,775 --> 00:23:11,955
[Speaker 1]
telling you there will be war and casualties

501
00:23:12,015 --> 00:23:14,840
[Speaker 1]
of war. I don't think you truly understand

502
00:23:15,220 --> 00:23:17,220
[Speaker 1]
what this is for and about. If we

503
00:23:17,220 --> 00:23:19,380
[Speaker 1]
lose here, I will likely die in the

504
00:23:19,380 --> 00:23:23,365
[Speaker 1]
war. So wow. He also admitted to bringing

505
00:23:23,365 --> 00:23:26,965
[Speaker 1]
a restricted weapon, called a Panther Arms AR

506
00:23:26,965 --> 00:23:29,720
[Speaker 1]
fifteen assault rifle to Coutts, which was then

507
00:23:29,720 --> 00:23:32,440
[Speaker 1]
seized by police and describe and he described

508
00:23:32,440 --> 00:23:36,335
[Speaker 1]
the police as losers and the enemy, but

509
00:23:36,335 --> 00:23:38,095
[Speaker 1]
he later said that he was embarrassed to

510
00:23:38,095 --> 00:23:39,934
[Speaker 1]
say that. He said it was dumb, and

511
00:23:39,934 --> 00:23:44,790
[Speaker 1]
he regretted calling the police losers. Okay. Well,

512
00:23:45,090 --> 00:23:47,490
[Speaker 1]
anyway, the jury found them not guilty on

513
00:23:47,490 --> 00:23:50,290
[Speaker 1]
the conspiracy to commit murder charge, and the

514
00:23:50,290 --> 00:23:52,895
[Speaker 1]
CBC reported that when the not guilty charge

515
00:23:52,895 --> 00:23:54,495
[Speaker 1]
was read out in court, there was a

516
00:23:54,495 --> 00:23:58,415
[Speaker 1]
loud gasp, and then someone later outside yelled

517
00:23:58,415 --> 00:24:02,080
[Speaker 1]
freedom. And, obviously, this is some wacky stuff.

518
00:24:03,020 --> 00:24:05,420
[Speaker 1]
And the weapons charges they were convicted of,

519
00:24:05,420 --> 00:24:08,245
[Speaker 1]
as I said, while less seriously less serious

520
00:24:08,245 --> 00:24:11,525
[Speaker 1]
than the conspiracy charges, are still serious. But,

521
00:24:11,525 --> 00:24:14,245
[Speaker 1]
basically, I think that the conspiracy charge was

522
00:24:14,245 --> 00:24:18,180
[Speaker 1]
overcharging. And we've we've had some debates online

523
00:24:18,400 --> 00:24:21,520
[Speaker 1]
with a particular academic, who said to me

524
00:24:21,520 --> 00:24:23,940
[Speaker 1]
when I raised concerns about a totally unrelated

525
00:24:24,000 --> 00:24:28,115
[Speaker 1]
issue, was concerned about bill c six sixty

526
00:24:28,115 --> 00:24:29,955
[Speaker 1]
three, which relates to online harms. And I

527
00:24:29,955 --> 00:24:33,155
[Speaker 1]
said one of the problems, with giving these

528
00:24:33,155 --> 00:24:36,470
[Speaker 1]
really high charges is that the crown can

529
00:24:36,470 --> 00:24:38,470
[Speaker 1]
overcharge in the hopes of getting a plea

530
00:24:38,470 --> 00:24:40,710
[Speaker 1]
deal. And it looks to me and it

531
00:24:40,710 --> 00:24:42,950
[Speaker 1]
looks to others other observers that that's what

532
00:24:42,950 --> 00:24:48,035
[Speaker 1]
happened here, that, the the the charge of

533
00:24:48,035 --> 00:24:51,475
[Speaker 1]
conspiracy to commit murder was an overcharge to

534
00:24:51,475 --> 00:24:54,210
[Speaker 1]
create pressure to to lead to a plea

535
00:24:54,210 --> 00:24:56,289
[Speaker 1]
deal, which ultimately didn't happen in this case.

536
00:24:56,289 --> 00:24:58,049
[Speaker 1]
But it kind of just shows the point

537
00:24:58,049 --> 00:25:01,650
[Speaker 1]
that, yes, the crown does overcharge and giving,

538
00:25:01,650 --> 00:25:05,465
[Speaker 1]
like, really high, the potential to bring really

539
00:25:05,465 --> 00:25:08,345
[Speaker 1]
serious charges in c sixty three is an

540
00:25:08,345 --> 00:25:11,880
[Speaker 1]
issue because crown does overcharge in order to

541
00:25:12,020 --> 00:25:14,120
[Speaker 1]
get leverage to do a plea deal. So,

542
00:25:14,580 --> 00:25:16,420
[Speaker 1]
I mean, like, I'm bringing in a personal

543
00:25:16,420 --> 00:25:18,660
[Speaker 1]
grievance now with this academic who said that

544
00:25:18,660 --> 00:25:22,705
[Speaker 1]
doesn't happen. Maybe don't take advice of academics

545
00:25:22,845 --> 00:25:25,165
[Speaker 1]
about, like, what actual practice of law is

546
00:25:25,165 --> 00:25:27,265
[Speaker 1]
like because sometimes they don't know.

547
00:25:27,405 --> 00:25:27,905
[Speaker 2]
Mhmm.

548
00:25:28,860 --> 00:25:31,580
[Speaker 1]
So, I'm not the only one who thinks

549
00:25:31,580 --> 00:25:34,300
[Speaker 1]
this was an overcharge. Oleonics' lawyer said, I

550
00:25:34,300 --> 00:25:36,625
[Speaker 1]
never believed since I took this file that

551
00:25:36,625 --> 00:25:38,465
[Speaker 1]
there was evidence that would support a finding

552
00:25:38,465 --> 00:25:41,585
[Speaker 1]
of guilt on the conspiracy charge. So it's

553
00:25:41,585 --> 00:25:44,005
[Speaker 1]
always a tremendous relief, but it's not surprising.

554
00:25:44,065 --> 00:25:45,770
[Speaker 1]
We had a thoughtful jury that took plenty

555
00:25:45,770 --> 00:25:47,850
[Speaker 1]
of time to think it over. And Carbutt's

556
00:25:47,850 --> 00:25:50,010
[Speaker 1]
lawyer said, I think it was an overcharge

557
00:25:50,010 --> 00:25:51,530
[Speaker 1]
to begin with, and I'm glad they came

558
00:25:51,530 --> 00:25:53,605
[Speaker 1]
back with the verdict that they did. So

559
00:25:53,605 --> 00:25:55,945
[Speaker 1]
I don't have much more to add than,

560
00:25:56,085 --> 00:25:58,005
[Speaker 1]
wow, I did not know about all of

561
00:25:58,005 --> 00:26:02,950
[Speaker 1]
these, like, femme fatale, undercover protesters and, like,

562
00:26:02,950 --> 00:26:06,230
[Speaker 1]
all of this, drama related to the case.

563
00:26:06,230 --> 00:26:08,410
[Speaker 1]
Maybe I'm gonna have to rethink heart emoji

564
00:26:08,470 --> 00:26:13,155
[Speaker 1]
reacts to things because apparently that's flirting. That's

565
00:26:13,155 --> 00:26:15,875
[Speaker 1]
what the allegation was here. But I don't

566
00:26:15,875 --> 00:26:17,175
[Speaker 1]
know. What do you think, Josh?

567
00:26:18,595 --> 00:26:20,835
[Speaker 0]
I think it's, super interesting, and I'm glad

568
00:26:20,835 --> 00:26:23,880
[Speaker 0]
you, I'm glad you talked about it. The

569
00:26:24,040 --> 00:26:25,960
[Speaker 0]
well, first of all, this is very minor

570
00:26:25,960 --> 00:26:29,480
[Speaker 0]
point, but, you mentioned that body armor was

571
00:26:29,480 --> 00:26:31,885
[Speaker 0]
found, and I've been reliably informed that it

572
00:26:31,885 --> 00:26:33,565
[Speaker 0]
was not body armor. It was just a

573
00:26:33,565 --> 00:26:36,045
[Speaker 0]
tactical vest that anyone can buy a Canadian

574
00:26:36,045 --> 00:26:40,560
[Speaker 0]
tire. So, small minor point. You know, this

575
00:26:40,720 --> 00:26:43,520
[Speaker 0]
what happened at Coutts, like, this particular case

576
00:26:43,520 --> 00:26:45,600
[Speaker 0]
with these two guys, it's the most serious

577
00:26:45,600 --> 00:26:48,545
[Speaker 0]
thing that happened during the Freedom Convoy, and

578
00:26:48,545 --> 00:26:50,945
[Speaker 0]
they faced really serious charges. And so everyone

579
00:26:50,945 --> 00:26:52,545
[Speaker 0]
sort of walked away with the impression that,

580
00:26:52,545 --> 00:26:56,150
[Speaker 0]
like, oh, some bad things happened during the

581
00:26:56,150 --> 00:26:59,350
[Speaker 0]
freedom convoy. Well, the most serious charge, nobody

582
00:26:59,350 --> 00:27:01,850
[Speaker 0]
is actually convicted of because it was overcharging.

583
00:27:02,070 --> 00:27:04,775
[Speaker 0]
And the other point is, you know, Coutts

584
00:27:04,775 --> 00:27:06,855
[Speaker 0]
is one part of the country. It's in

585
00:27:06,855 --> 00:27:10,620
[Speaker 0]
Alberta. And the Emergencies Act is very clear

586
00:27:10,620 --> 00:27:12,940
[Speaker 0]
that the threat can't you know, for it

587
00:27:12,940 --> 00:27:15,200
[Speaker 0]
to be a national emergency, it has to

588
00:27:15,500 --> 00:27:18,060
[Speaker 0]
seriously endanger the lives, health, or safety of

589
00:27:18,060 --> 00:27:21,135
[Speaker 0]
Canadians and be of such proportions or nature

590
00:27:21,595 --> 00:27:23,995
[Speaker 0]
as to exceed the capacity or authority of

591
00:27:23,995 --> 00:27:27,040
[Speaker 0]
a province to deal with. And in this

592
00:27:27,040 --> 00:27:30,480
[Speaker 0]
particular case, Alberta's RCMP completely dealt with the

593
00:27:30,480 --> 00:27:33,920
[Speaker 0]
situation at Coutts. Yeah. So, you know, from

594
00:27:33,920 --> 00:27:36,654
[Speaker 0]
a federal federalism perspective, you basically have the

595
00:27:36,654 --> 00:27:39,534
[Speaker 0]
federal government saying, hey, Alberta. This is a

596
00:27:39,534 --> 00:27:41,774
[Speaker 0]
national emergency. Alberta is saying, no. It's not.

597
00:27:41,774 --> 00:27:43,134
[Speaker 0]
We don't need your help. We used our

598
00:27:43,134 --> 00:27:45,990
[Speaker 0]
own RCMP because the RCMP and Alberta are

599
00:27:45,990 --> 00:27:48,549
[Speaker 0]
under contract to the province to deal with

600
00:27:48,549 --> 00:27:50,789
[Speaker 0]
this, and they did. And it's it's just

601
00:27:50,789 --> 00:27:53,855
[Speaker 0]
like Windsor, where Ontario police, you know, they

602
00:27:53,855 --> 00:27:57,295
[Speaker 0]
dealt with the situation there, which was also

603
00:27:57,295 --> 00:27:59,615
[Speaker 0]
serious, but the police were able to deal

604
00:27:59,615 --> 00:28:01,960
[Speaker 0]
with it at at the provincial level. So

605
00:28:02,180 --> 00:28:04,420
[Speaker 0]
not a national emergency even though, you know,

606
00:28:04,420 --> 00:28:08,095
[Speaker 0]
some serious relatively serious things did happen in

607
00:28:08,095 --> 00:28:11,215
[Speaker 0]
in Alberta specifically. So that's all I wanna

608
00:28:11,215 --> 00:28:13,635
[Speaker 0]
say about that. Joanna, what do you think?

609
00:28:13,775 --> 00:28:15,535
[Speaker 2]
Well, I just have one question. Was the

610
00:28:15,535 --> 00:28:17,940
[Speaker 2]
emoji hearts, was she tapping on that was

611
00:28:17,940 --> 00:28:20,179
[Speaker 2]
she reacting with hearts on the message? Or

612
00:28:20,179 --> 00:28:22,820
[Speaker 2]
was she sending actual hearts as a message?

613
00:28:22,820 --> 00:28:24,659
[Speaker 2]
Because that's two completely different things.

614
00:28:24,659 --> 00:28:27,025
[Speaker 1]
It wasn't clear from the reporting. It seemed

615
00:28:27,025 --> 00:28:28,705
[Speaker 1]
from the reporting to me, like, she was

616
00:28:28,705 --> 00:28:31,425
[Speaker 1]
doing a heart emoji react. Oh. Okay. I

617
00:28:31,425 --> 00:28:32,705
[Speaker 1]
don't think it's flirting.

618
00:28:32,705 --> 00:28:35,110
[Speaker 2]
No. That I do. I don't know. Like,

619
00:28:35,429 --> 00:28:37,030
[Speaker 2]
I yeah. I do to, like, our board

620
00:28:37,030 --> 00:28:38,870
[Speaker 2]
chairman. Like, I do it all the time,

621
00:28:38,870 --> 00:28:41,590
[Speaker 2]
you know, to my dad. You're listening a

622
00:28:41,590 --> 00:28:45,015
[Speaker 2]
lot a row of hearts, that is different

623
00:28:45,015 --> 00:28:45,215
[Speaker 2]
characters.

624
00:28:45,415 --> 00:28:49,335
[Speaker 1]
Stand alone heart emojis is I kinda I

625
00:28:49,335 --> 00:28:52,799
[Speaker 1]
do think is flirting. Heart reacts? I don't

626
00:28:52,799 --> 00:28:55,279
[Speaker 1]
know. So I I I actually am not

627
00:28:55,279 --> 00:28:58,159
[Speaker 1]
sure. It seemed from the reporting like it

628
00:28:58,159 --> 00:29:01,075
[Speaker 1]
was a react emoji, but I don't know.

629
00:29:01,075 --> 00:29:01,875
[Speaker 1]
Well, then that

630
00:29:01,875 --> 00:29:05,475
[Speaker 2]
is definitely, you know, throwing throwing the throwing

631
00:29:05,475 --> 00:29:07,789
[Speaker 2]
the ball too far. But, yeah, I mean,

632
00:29:07,789 --> 00:29:10,350
[Speaker 2]
the the mens rea for conspiracy is that

633
00:29:10,350 --> 00:29:12,350
[Speaker 2]
you have to have crystallized a plan in

634
00:29:12,350 --> 00:29:14,429
[Speaker 2]
your mind, and that's kind of difficult for

635
00:29:14,429 --> 00:29:17,115
[Speaker 2]
the crown to prove. But it's interesting that

636
00:29:17,115 --> 00:29:20,795
[Speaker 2]
they chose the honeypot method method going undercover

637
00:29:20,795 --> 00:29:23,355
[Speaker 2]
and getting although that has been argued to

638
00:29:23,355 --> 00:29:26,510
[Speaker 2]
be more reliable than the mister big approach.

639
00:29:26,510 --> 00:29:27,790
[Speaker 2]
So that where they would have, like, sent

640
00:29:27,790 --> 00:29:30,910
[Speaker 2]
in some, like, gangster who's like, you know,

641
00:29:30,910 --> 00:29:33,355
[Speaker 2]
I'm high up in Diagholon, and I I

642
00:29:33,355 --> 00:29:34,955
[Speaker 2]
can help you. Then there's like more of

643
00:29:34,955 --> 00:29:38,395
[Speaker 2]
a motivation to start boasting and start saying

644
00:29:38,395 --> 00:29:40,475
[Speaker 2]
things that are gonna be even less reliable.

645
00:29:40,475 --> 00:29:43,840
[Speaker 1]
So actually Well, definitely men never boast to

646
00:29:43,840 --> 00:29:44,740
[Speaker 1]
impress women.

647
00:29:44,880 --> 00:29:45,380
[Speaker 0]
Yeah.

648
00:29:46,800 --> 00:29:48,800
[Speaker 2]
Yeah. Yeah. I mean, the risk is there

649
00:29:48,800 --> 00:29:52,674
[Speaker 2]
in either case. But anyways, this sounds reasonable

650
00:29:52,735 --> 00:29:54,174
[Speaker 2]
to me. I mean, look, these guys were

651
00:29:54,174 --> 00:29:56,895
[Speaker 2]
caught up with some sketchy stuff. That's the

652
00:29:56,895 --> 00:29:59,340
[Speaker 2]
weapons cache. That's pretty cut and dry, but

653
00:29:59,340 --> 00:30:01,659
[Speaker 2]
I don't really know. I I guess you

654
00:30:01,659 --> 00:30:03,919
[Speaker 2]
alluded to the reason, but it seemed unwise

655
00:30:03,980 --> 00:30:06,539
[Speaker 2]
for the crown to overplay their hand as

656
00:30:06,539 --> 00:30:10,775
[Speaker 2]
they did. So let's take a break, and

657
00:30:10,775 --> 00:30:12,635
[Speaker 2]
we'll come back. And I'll tell you about,

658
00:30:13,015 --> 00:30:15,495
[Speaker 2]
the sad story of a Waterloo farmer who

659
00:30:15,495 --> 00:30:18,210
[Speaker 2]
turned out to be sitting on rare historical

660
00:30:18,210 --> 00:30:19,590
[Speaker 2]
artifacts on his property.

661
00:30:21,970 --> 00:30:24,150
[Speaker 3]
Hi. This is Russell from the Canadian Constitution

662
00:30:24,210 --> 00:30:26,795
[Speaker 3]
Foundation. Did you know that CCF offers free

663
00:30:26,795 --> 00:30:29,675
[Speaker 3]
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664
00:30:29,675 --> 00:30:31,755
[Speaker 3]
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665
00:30:31,755 --> 00:30:34,635
[Speaker 3]
some of Canada's leading constitutional experts. All you

666
00:30:34,635 --> 00:30:35,870
[Speaker 3]
have have to do is create a free

667
00:30:35,870 --> 00:30:38,269
[Speaker 3]
account on our website, sign up, and access

668
00:30:38,269 --> 00:30:40,350
[Speaker 3]
all our law courses for free at the

669
00:30:40,350 --> 00:30:42,370
[Speaker 3]
c c f dot c a slash learn.

670
00:30:46,925 --> 00:30:49,005
[Speaker 2]
Okay. So we wanna talk a little bit

671
00:30:49,005 --> 00:30:51,485
[Speaker 2]
about the story of a farmer in the

672
00:30:51,485 --> 00:30:55,790
[Speaker 2]
Waterloo region named Bruce Castle, who has been

673
00:30:55,790 --> 00:30:59,010
[Speaker 2]
quoted about four hundred thousand dollars in cost

674
00:30:59,070 --> 00:31:04,925
[Speaker 2]
for a publicly provincially mandated archaeological assessment. So

675
00:31:04,925 --> 00:31:07,645
[Speaker 2]
he's been told by the Ontario minister of

676
00:31:07,645 --> 00:31:11,025
[Speaker 2]
culture and multiculturalism that he will be fined

677
00:31:11,360 --> 00:31:14,559
[Speaker 2]
or possibly even jailed under a violation of

678
00:31:14,559 --> 00:31:17,919
[Speaker 2]
the Ontario Heritage Act if he disrupts the

679
00:31:17,919 --> 00:31:19,955
[Speaker 2]
artifacts that have been found on his land.

680
00:31:20,434 --> 00:31:23,735
[Speaker 2]
So this started more than four years ago

681
00:31:23,875 --> 00:31:26,674
[Speaker 2]
when Bruce decided to develop a field on

682
00:31:26,674 --> 00:31:29,429
[Speaker 2]
his property that he used to farm, and

683
00:31:29,429 --> 00:31:30,950
[Speaker 2]
he wanted to build a house there. He's

684
00:31:30,950 --> 00:31:32,950
[Speaker 2]
seventy five years old and he wanted to

685
00:31:32,950 --> 00:31:34,309
[Speaker 2]
build a house for him and his wife

686
00:31:34,309 --> 00:31:37,190
[Speaker 2]
to retire to. But first he was mandated

687
00:31:37,190 --> 00:31:41,025
[Speaker 2]
to get an archaeological assessment of the land.

688
00:31:41,325 --> 00:31:44,605
[Speaker 2]
And so the first archaeologist he hired, did

689
00:31:44,605 --> 00:31:46,684
[Speaker 2]
a first stage assessment and a second stage

690
00:31:46,684 --> 00:31:50,100
[Speaker 2]
assessment and he was given a budget at

691
00:31:50,100 --> 00:31:52,580
[Speaker 2]
the end which totaled about four hundred thousand

692
00:31:52,580 --> 00:31:56,304
[Speaker 2]
dollars and included fees to consult with relevant

693
00:31:56,684 --> 00:32:00,684
[Speaker 2]
indigenous groups. And the reason is that for

694
00:32:00,765 --> 00:32:04,870
[Speaker 2]
at the stage two assessment, archaeologists identified a

695
00:32:04,870 --> 00:32:08,570
[Speaker 2]
hundred and thirty four pre contact Aboriginal artifacts

696
00:32:08,630 --> 00:32:12,935
[Speaker 2]
or I suppose indigenous artifacts including scrapers and

697
00:32:13,175 --> 00:32:15,975
[Speaker 2]
and projectile points in an area of the

698
00:32:15,975 --> 00:32:19,815
[Speaker 2]
field. And the archaeologists assessed that the site

699
00:32:19,815 --> 00:32:22,620
[Speaker 2]
was interpreted to be and this is just

700
00:32:22,860 --> 00:32:24,700
[Speaker 2]
interesting in general. I mean, we'll get to

701
00:32:24,700 --> 00:32:27,100
[Speaker 2]
what it means for castle. But this was

702
00:32:27,100 --> 00:32:29,900
[Speaker 2]
interpreted that this land was at one point

703
00:32:29,900 --> 00:32:34,135
[Speaker 2]
used as a large area of seasonal temporary

704
00:32:34,195 --> 00:32:38,294
[Speaker 2]
seasonal occupation by indigenous communities throughout the Middle

705
00:32:38,355 --> 00:32:41,440
[Speaker 2]
Archaic period. So that's six thousand to eight

706
00:32:41,440 --> 00:32:44,400
[Speaker 2]
thousand years ago, and the report says that

707
00:32:44,400 --> 00:32:47,680
[Speaker 2]
hunting and hide processing were undertaken at the

708
00:32:47,680 --> 00:32:50,355
[Speaker 2]
site as well as the production and maintenance

709
00:32:50,415 --> 00:32:53,535
[Speaker 2]
of formal tools and projectile points. What about

710
00:32:53,535 --> 00:32:55,295
[Speaker 2]
projectile points? Is that like a weapon or

711
00:32:55,295 --> 00:33:00,220
[Speaker 2]
something? Arrowheads. Okay. Cool. And they also found,

712
00:33:00,600 --> 00:33:04,120
[Speaker 2]
about fifteen meters away, the archaeologists found twelve

713
00:33:04,120 --> 00:33:09,785
[Speaker 2]
pieces of Onondaga chirp chipping detritus, which they

714
00:33:09,785 --> 00:33:12,905
[Speaker 2]
use to identify, quote, a small area of

715
00:33:12,905 --> 00:33:17,610
[Speaker 2]
unknown function occupied by unspecified indigenous people during

716
00:33:17,610 --> 00:33:20,910
[Speaker 2]
the pre contact period and it's a hard

717
00:33:21,130 --> 00:33:25,265
[Speaker 2]
sedimentary rock. And so Kassel, not being able

718
00:33:25,265 --> 00:33:28,305
[Speaker 2]
to afford this four hundred thousand dollar fee

719
00:33:28,305 --> 00:33:34,390
[Speaker 2]
to, to extract, the extract the artifacts, reached

720
00:33:34,390 --> 00:33:37,030
[Speaker 2]
out to the minister of indigenous affairs in

721
00:33:37,030 --> 00:33:40,455
[Speaker 2]
Ontario as well as premier Doug Ford. And

722
00:33:40,455 --> 00:33:44,475
[Speaker 2]
basically their offices seem to be, stonewalling him.

723
00:33:44,855 --> 00:33:46,934
[Speaker 2]
He also sent a letter to Michael Ford,

724
00:33:46,934 --> 00:33:51,640
[Speaker 2]
who's the minister of citizenship and multiculturalism that

725
00:33:51,640 --> 00:33:58,565
[Speaker 2]
basically no help. The determination that basically no

726
00:33:58,565 --> 00:34:01,045
[Speaker 2]
help. The determination falls within the roles of

727
00:34:01,045 --> 00:34:04,185
[Speaker 2]
ministry officials. This is not a political decision.

728
00:34:04,405 --> 00:34:07,670
[Speaker 2]
We can't intervene. Sorry. We can't help you

729
00:34:07,670 --> 00:34:10,470
[Speaker 2]
out. He did shop around. Castle did shop

730
00:34:10,470 --> 00:34:13,670
[Speaker 2]
around for some other estimates, and he only

731
00:34:13,670 --> 00:34:15,745
[Speaker 2]
was able to get one for a stage

732
00:34:15,825 --> 00:34:18,065
[Speaker 2]
four assessment which was the four hundred thousand

733
00:34:18,065 --> 00:34:21,025
[Speaker 2]
dollars assessment. And this is not the first

734
00:34:21,025 --> 00:34:24,000
[Speaker 2]
time that this has happened in Canada. There

735
00:34:24,000 --> 00:34:27,280
[Speaker 2]
have been other homeowners that have been shocked

736
00:34:27,280 --> 00:34:32,835
[Speaker 2]
by high costs following unexpected and publicly mandated

737
00:34:33,135 --> 00:34:36,835
[Speaker 2]
archaeological assessments. And there's a case that's considered

738
00:34:36,975 --> 00:34:40,630
[Speaker 2]
precedential from two thousand six, when a woman

739
00:34:40,630 --> 00:34:44,150
[Speaker 2]
named Wendy McKay or McKay of BC was

740
00:34:44,150 --> 00:34:47,450
[Speaker 2]
built sixty seven thousand dollars in initial costs

741
00:34:47,755 --> 00:34:52,715
[Speaker 2]
for archaeological work and inspections, because, the piece

742
00:34:52,715 --> 00:34:55,115
[Speaker 2]
of forest that she owned, she wanted to,

743
00:34:55,920 --> 00:34:57,520
[Speaker 2]
she wanted to develop. There was an old

744
00:34:57,520 --> 00:34:59,119
[Speaker 2]
house on it, and she just wanted to

745
00:34:59,119 --> 00:35:01,839
[Speaker 2]
demolish it and build a new one. And

746
00:35:01,839 --> 00:35:04,885
[Speaker 2]
she was billed first sixty seven thousand dollars

747
00:35:04,944 --> 00:35:08,545
[Speaker 2]
and then in, and then in excess of

748
00:35:08,545 --> 00:35:11,770
[Speaker 2]
a hundred and seventeen thousand dollars. So she

749
00:35:11,770 --> 00:35:15,530
[Speaker 2]
sued the province for damages for loss in

750
00:35:15,530 --> 00:35:17,950
[Speaker 2]
her property value and the delays in constructions

751
00:35:18,495 --> 00:35:21,375
[Speaker 2]
And the BC and initially, her claim was

752
00:35:21,375 --> 00:35:23,615
[Speaker 2]
rejected by the BC trial court, but the

753
00:35:23,615 --> 00:35:26,815
[Speaker 2]
BC court of appeal ruled in McKay's favor

754
00:35:26,815 --> 00:35:30,270
[Speaker 2]
and determined that the province had no authority

755
00:35:30,410 --> 00:35:33,470
[Speaker 2]
to require McKay to pay for a heritage

756
00:35:33,930 --> 00:35:39,075
[Speaker 2]
inspection or investigation. So I've been thinking about

757
00:35:39,075 --> 00:35:42,674
[Speaker 2]
this this, there's kind of two sort of

758
00:35:42,674 --> 00:35:45,470
[Speaker 2]
warring principles here. The first is caveat emptor,

759
00:35:45,770 --> 00:35:48,250
[Speaker 2]
so buyer beware. So when you buy land

760
00:35:48,250 --> 00:35:50,570
[Speaker 2]
and beyond the sort of inspection reports and

761
00:35:50,570 --> 00:35:53,630
[Speaker 2]
stuff like that, there is some aspect of,

762
00:35:53,914 --> 00:35:56,494
[Speaker 2]
you know, it's your land, so any unforeseen

763
00:35:56,875 --> 00:36:00,555
[Speaker 2]
circumstances or I guess historic indigenous artifacts are

764
00:36:00,555 --> 00:36:03,090
[Speaker 2]
kind of on you. But the rationale is

765
00:36:03,090 --> 00:36:05,330
[Speaker 2]
different when the like, it cuts both ways.

766
00:36:05,330 --> 00:36:06,850
[Speaker 2]
If you're gonna say that you take on

767
00:36:06,850 --> 00:36:09,090
[Speaker 2]
all the risks, then you get to decide

768
00:36:09,090 --> 00:36:12,155
[Speaker 2]
what to do with that eventuality. Because from

769
00:36:12,315 --> 00:36:14,955
[Speaker 2]
presumably from Bruce Castle's perspective, he would be

770
00:36:14,955 --> 00:36:18,555
[Speaker 2]
happy with just moving ahead by building his

771
00:36:18,555 --> 00:36:21,369
[Speaker 2]
dream retirement home and knowing that he also

772
00:36:21,369 --> 00:36:26,170
[Speaker 2]
has this fascinating rich sedimentary history under his

773
00:36:26,170 --> 00:36:28,329
[Speaker 2]
soil. It's the state that's saying, no, we

774
00:36:28,329 --> 00:36:29,955
[Speaker 2]
we have a, you know, a historic and

775
00:36:29,955 --> 00:36:32,835
[Speaker 2]
archaeological interest in this so you need to

776
00:36:32,835 --> 00:36:34,835
[Speaker 2]
pay up to have it assessed and to

777
00:36:34,835 --> 00:36:39,280
[Speaker 2]
have everything extracted. Mark Milke was with at

778
00:36:39,280 --> 00:36:42,000
[Speaker 2]
a conference the other week, great fellow. He's

779
00:36:42,000 --> 00:36:44,960
[Speaker 2]
the president of the Aristotle Foundation. His opinion

780
00:36:44,960 --> 00:36:47,505
[Speaker 2]
is that if you as a private property

781
00:36:47,505 --> 00:36:50,405
[Speaker 2]
owner are forced to endure regulation that could

782
00:36:50,625 --> 00:36:53,025
[Speaker 2]
cost you this much money, it devalues your

783
00:36:53,025 --> 00:36:55,490
[Speaker 2]
property or could break you and that's not

784
00:36:55,490 --> 00:36:58,450
[Speaker 2]
a fair approach to regulating private property. He

785
00:36:58,450 --> 00:37:01,330
[Speaker 2]
also mentions that in Europe, if the government

786
00:37:01,330 --> 00:37:04,065
[Speaker 2]
introduces a regulation that's very costly for you,

787
00:37:04,145 --> 00:37:05,984
[Speaker 2]
it's the burden on the government to pay

788
00:37:05,984 --> 00:37:08,944
[Speaker 2]
for it. And he says on taxpayers oh,

789
00:37:08,944 --> 00:37:10,785
[Speaker 2]
Christine, I'm curious what you're gonna think about

790
00:37:10,785 --> 00:37:13,560
[Speaker 2]
this. He says, I don't normally recommend that

791
00:37:13,560 --> 00:37:16,620
[Speaker 2]
taxpayers take another bill, but in this case,

792
00:37:16,920 --> 00:37:19,875
[Speaker 2]
I think it's justified. So so yeah. I

793
00:37:19,875 --> 00:37:21,954
[Speaker 2]
think if the if the principle is going

794
00:37:21,954 --> 00:37:23,714
[Speaker 2]
to be you take on the risks, then

795
00:37:23,714 --> 00:37:25,970
[Speaker 2]
you should be able to decide what to

796
00:37:25,970 --> 00:37:28,049
[Speaker 2]
do about those risks. But equally, I see

797
00:37:28,049 --> 00:37:31,089
[Speaker 2]
that, yeah, the state has, an interest in

798
00:37:31,089 --> 00:37:34,849
[Speaker 2]
preserving the history and the archaeological integrity of

799
00:37:34,849 --> 00:37:37,665
[Speaker 2]
our land. And it does seem just, like,

800
00:37:37,665 --> 00:37:40,945
[Speaker 2]
fundamentally unfair if it's the state that has

801
00:37:40,945 --> 00:37:43,365
[Speaker 2]
the interest in it that the cost remains

802
00:37:43,505 --> 00:37:46,150
[Speaker 2]
on the landowner. So I'll be interested to

803
00:37:46,150 --> 00:37:48,390
[Speaker 2]
see where this case goes. What do you

804
00:37:48,390 --> 00:37:51,050
[Speaker 2]
think, Christine? Can the can we have another

805
00:37:51,110 --> 00:37:54,410
[Speaker 2]
tax added in this specific circumstance?

806
00:37:54,855 --> 00:37:56,295
[Speaker 1]
Well, what I would say is that this

807
00:37:56,295 --> 00:37:59,175
[Speaker 1]
creates a moral hazard because if you create

808
00:37:59,175 --> 00:38:04,420
[Speaker 1]
a situation where the cost of finding artifacts

809
00:38:04,720 --> 00:38:08,080
[Speaker 1]
is so burdensome on the individual, they might

810
00:38:08,080 --> 00:38:11,174
[Speaker 1]
just not find the artifacts. Right? Like you

811
00:38:11,174 --> 00:38:14,875
[Speaker 1]
might just say, I'm bringing in a bulldozer

812
00:38:14,934 --> 00:38:17,755
[Speaker 1]
and I'm paying the guys who found the

813
00:38:18,010 --> 00:38:21,690
[Speaker 1]
pointy projectiles, you know, I'll pay them ten

814
00:38:21,690 --> 00:38:24,490
[Speaker 1]
grand to dump it instead of paying four

815
00:38:24,490 --> 00:38:27,875
[Speaker 1]
hundred grand to be let the government know

816
00:38:27,875 --> 00:38:30,515
[Speaker 1]
that I found them. So I'm not saying

817
00:38:30,515 --> 00:38:32,115
[Speaker 1]
that that's the right thing to do. I'm

818
00:38:32,115 --> 00:38:34,115
[Speaker 1]
just saying that if you create this situ

819
00:38:34,194 --> 00:38:37,140
[Speaker 1]
if you create this costly situation that prevents

820
00:38:37,140 --> 00:38:38,980
[Speaker 1]
someone from building a home on their own

821
00:38:38,980 --> 00:38:42,100
[Speaker 1]
property, you're you have to acknowledge that you're

822
00:38:42,100 --> 00:38:46,355
[Speaker 1]
gonna cause people to make rational economic choices.

823
00:38:46,975 --> 00:38:49,635
[Speaker 1]
And that choice in a lot of situations

824
00:38:49,935 --> 00:38:53,180
[Speaker 1]
will result in the destruction of artifact. Yeah.

825
00:38:53,960 --> 00:38:55,180
[Speaker 1]
Josh, what do you think?

826
00:38:55,880 --> 00:38:58,280
[Speaker 0]
I would just say don't take what Christine

827
00:38:58,280 --> 00:39:00,680
[Speaker 0]
just said as legal advice. Is not advice.

828
00:39:00,680 --> 00:39:01,280
[Speaker 0]
I'm just kidding.

829
00:39:01,480 --> 00:39:02,714
[Speaker 1]
Not do that. I'm just

830
00:39:02,714 --> 00:39:04,075
[Speaker 0]
saying that

831
00:39:04,075 --> 00:39:06,075
[Speaker 1]
the government is not fair that that could

832
00:39:06,075 --> 00:39:09,214
[Speaker 1]
be a reaction to this.

833
00:39:09,970 --> 00:39:12,450
[Speaker 0]
When when things get that expensive, you know,

834
00:39:12,450 --> 00:39:14,610
[Speaker 0]
people are gonna try and go around the

835
00:39:14,610 --> 00:39:16,130
[Speaker 0]
the rules. I mean, I don't even know

836
00:39:16,130 --> 00:39:18,630
[Speaker 0]
if the government really has an interest in

837
00:39:18,770 --> 00:39:29,170
[Speaker 0]
finding artifacts on in terms of the archaeologists

838
00:39:29,170 --> 00:39:31,809
[Speaker 0]
and the consultants. They're probably making huge profits

839
00:39:31,809 --> 00:39:34,690
[Speaker 0]
off of this poor landowner who's used that

840
00:39:34,690 --> 00:39:37,665
[Speaker 0]
land before and is now, you know, trying

841
00:39:37,665 --> 00:39:40,545
[Speaker 0]
to do the right thing by, by all

842
00:39:40,545 --> 00:39:43,745
[Speaker 0]
accounts. But it reminds me of, you know,

843
00:39:43,745 --> 00:39:47,450
[Speaker 0]
real estate law in, in law school where

844
00:39:47,450 --> 00:39:49,050
[Speaker 0]
they teach you, you know, if you're gonna

845
00:39:49,050 --> 00:39:51,130
[Speaker 0]
buy any sort of rural property before you

846
00:39:51,130 --> 00:39:53,375
[Speaker 0]
even sign that agreement of purchase and sale,

847
00:39:53,375 --> 00:39:55,375
[Speaker 0]
you should be consulting a lawyer because these

848
00:39:55,375 --> 00:39:57,455
[Speaker 0]
types of things can come up and you

849
00:39:57,455 --> 00:39:58,975
[Speaker 0]
don't see them coming and you end up

850
00:39:58,975 --> 00:40:01,615
[Speaker 0]
with a property, that you've agreed to buy

851
00:40:01,615 --> 00:40:04,640
[Speaker 0]
that is, you you know, essentially worthless in

852
00:40:04,640 --> 00:40:06,400
[Speaker 0]
some cases if it's gonna cost you that

853
00:40:06,400 --> 00:40:08,400
[Speaker 0]
much to get around the regulations and

854
00:40:08,559 --> 00:40:08,960
[Speaker 1]
Can you get

855
00:40:08,960 --> 00:40:09,920
[Speaker 0]
this all set?

856
00:40:10,000 --> 00:40:12,695
[Speaker 1]
Policy for that? Like, can you get indigenous

857
00:40:12,835 --> 00:40:14,755
[Speaker 1]
artifact insurance? Oh, that's

858
00:40:14,755 --> 00:40:16,535
[Speaker 0]
the one that I bet you it's excluded

859
00:40:16,595 --> 00:40:18,755
[Speaker 0]
from the the the common policies, but I

860
00:40:18,755 --> 00:40:21,230
[Speaker 0]
don't know. It's a really good question. Again,

861
00:40:21,230 --> 00:40:23,230
[Speaker 0]
consult your real estate lawyer, not the not

862
00:40:23,230 --> 00:40:27,230
[Speaker 0]
a podcast. But speaking of worthless, so the

863
00:40:27,230 --> 00:40:28,845
[Speaker 0]
other thing I'm thinking here is, you know,

864
00:40:28,845 --> 00:40:31,425
[Speaker 0]
there's this ancient sort of common law property

865
00:40:31,484 --> 00:40:35,085
[Speaker 0]
law principle that if if the government takes

866
00:40:35,085 --> 00:40:37,405
[Speaker 0]
your property, they have to compensate you for

867
00:40:37,405 --> 00:40:40,190
[Speaker 0]
that. Right? Like, we've talked about expropriation before

868
00:40:40,190 --> 00:40:44,270
[Speaker 0]
on this podcast and and takings. And the

869
00:40:44,270 --> 00:40:47,295
[Speaker 0]
government generally does have an ability to take

870
00:40:47,295 --> 00:40:49,615
[Speaker 0]
your property for for certain purposes, but they

871
00:40:49,615 --> 00:40:51,215
[Speaker 0]
do have to compensate you for it. Right?

872
00:40:51,215 --> 00:40:53,859
[Speaker 0]
So here, I feel like the governments, if

873
00:40:53,859 --> 00:40:56,820
[Speaker 0]
they claim there's an interest in having eight

874
00:40:56,820 --> 00:40:59,380
[Speaker 0]
thousand year old projectiles dug up from this

875
00:40:59,380 --> 00:41:02,420
[Speaker 0]
property, which I'm a little skeptical of. But

876
00:41:02,420 --> 00:41:04,805
[Speaker 0]
if that's if if they're getting a benefit

877
00:41:04,805 --> 00:41:07,205
[Speaker 0]
out of that, then they ought to be

878
00:41:07,205 --> 00:41:09,525
[Speaker 0]
the ones paying up. So I question whether

879
00:41:09,525 --> 00:41:12,460
[Speaker 0]
this is is is a taking. But, not

880
00:41:12,460 --> 00:41:15,219
[Speaker 0]
something I've looked into too deeply. So we'll

881
00:41:15,219 --> 00:41:18,780
[Speaker 0]
have to keep, keep researching this question and

882
00:41:18,780 --> 00:41:21,775
[Speaker 0]
see, see where that goes. So I think

883
00:41:21,775 --> 00:41:23,855
[Speaker 0]
we should move on to bad legal takes.

884
00:41:24,335 --> 00:41:27,055
[Speaker 0]
Who wants to go first? Christine, wanna take

885
00:41:27,055 --> 00:41:27,375
[Speaker 0]
it away?

886
00:41:27,375 --> 00:41:29,215
[Speaker 1]
I can go first. Mine is really gross,

887
00:41:29,215 --> 00:41:35,460
[Speaker 1]
guys. FYI. So my Trigger warning. Trigger warning.

888
00:41:36,800 --> 00:41:39,380
[Speaker 1]
My bad legal take relates to this weird

889
00:41:39,905 --> 00:41:42,465
[Speaker 1]
story about Wasaga Beach, which is a beach

890
00:41:42,465 --> 00:41:45,665
[Speaker 1]
town in Ontario, just north of Toronto. And

891
00:41:45,665 --> 00:41:49,550
[Speaker 1]
allegedly, at Wasaga Beach, people have been pooping

892
00:41:49,610 --> 00:41:52,510
[Speaker 1]
on the beach. And this lady on TikTok

893
00:41:52,810 --> 00:41:57,065
[Speaker 1]
named Natalie Lynn, she lives in Wasaga right

894
00:41:57,065 --> 00:41:59,625
[Speaker 1]
by the beach, and she posted a series

895
00:41:59,625 --> 00:42:02,985
[Speaker 1]
of TikTok videos about how people visiting the

896
00:42:02,985 --> 00:42:06,079
[Speaker 1]
beach, so not not residents of Wasaga, but,

897
00:42:06,079 --> 00:42:08,640
[Speaker 1]
like, other people from other towns are coming

898
00:42:08,640 --> 00:42:10,560
[Speaker 1]
to the beach and pooping on it. And

899
00:42:10,560 --> 00:42:13,065
[Speaker 1]
they're burying their poop, and they're also burying

900
00:42:13,125 --> 00:42:16,005
[Speaker 1]
dirty diapers. And she said she's caught people

901
00:42:16,005 --> 00:42:17,925
[Speaker 1]
doing it and yelled at them, and then

902
00:42:17,925 --> 00:42:20,230
[Speaker 1]
her daughter has dug up really gross stuff

903
00:42:20,230 --> 00:42:22,630
[Speaker 1]
like this while playing in the sand, and

904
00:42:22,630 --> 00:42:24,790
[Speaker 1]
she said some people set up tents on

905
00:42:24,790 --> 00:42:28,395
[Speaker 1]
the beach that are kind of like, you

906
00:42:28,395 --> 00:42:31,595
[Speaker 1]
know, out how tent outhouses, and they put

907
00:42:31,595 --> 00:42:32,954
[Speaker 1]
the tent up and then they dig a

908
00:42:32,954 --> 00:42:35,355
[Speaker 1]
pit in the in the sand inside the

909
00:42:35,355 --> 00:42:37,680
[Speaker 1]
tent, and then they poop in the pit.

910
00:42:38,540 --> 00:42:42,540
[Speaker 1]
And she said that her daughter's friend fell

911
00:42:42,540 --> 00:42:45,645
[Speaker 1]
in one of these poop pits. Ew. Yeah.

912
00:42:45,645 --> 00:42:47,965
[Speaker 1]
I know. It's really gross. So she said

913
00:42:47,965 --> 00:42:50,625
[Speaker 1]
that people who are doing this are Indians

914
00:42:50,925 --> 00:42:54,410
[Speaker 1]
and or immigrants, like in East Indians. And

915
00:42:54,410 --> 00:42:56,170
[Speaker 1]
this resulted in a bunch of claims that

916
00:42:56,170 --> 00:42:59,130
[Speaker 1]
she is racist, and she's responded to these

917
00:42:59,130 --> 00:43:01,065
[Speaker 1]
claims that she's a racist by saying that

918
00:43:01,065 --> 00:43:04,685
[Speaker 1]
she is indigenous herself and that her daughter,

919
00:43:05,385 --> 00:43:08,685
[Speaker 1]
is half Indian, like, East Indian, and her

920
00:43:08,744 --> 00:43:13,960
[Speaker 1]
daughter's father is Indian. And she said that

921
00:43:13,960 --> 00:43:17,960
[Speaker 1]
she doesn't have any particular care about who

922
00:43:17,960 --> 00:43:21,325
[Speaker 1]
is doing it. Just she's just saying what

923
00:43:21,325 --> 00:43:24,925
[Speaker 1]
her experience is and calling out unhygienic behavior

924
00:43:24,925 --> 00:43:27,119
[Speaker 1]
happening in her backyard so that she can

925
00:43:27,119 --> 00:43:29,359
[Speaker 1]
warn other people so other people don't fall

926
00:43:29,359 --> 00:43:32,900
[Speaker 1]
in these poop beds. Now I don't know

927
00:43:33,279 --> 00:43:35,279
[Speaker 1]
if people are pooping on the beach at

928
00:43:35,279 --> 00:43:38,005
[Speaker 1]
Wasaga. And if they are, I don't know

929
00:43:38,005 --> 00:43:41,925
[Speaker 1]
who they are. This the the mayor of

930
00:43:41,925 --> 00:43:45,110
[Speaker 1]
Wasaga Beach has said this is misinformation and

931
00:43:45,110 --> 00:43:47,910
[Speaker 1]
that there isn't poop on the beach. But

932
00:43:47,910 --> 00:43:51,990
[Speaker 1]
former bylaw officers interviewed have said that there

933
00:43:51,990 --> 00:43:54,015
[Speaker 1]
is poop on the beach. So I don't

934
00:43:54,015 --> 00:43:56,655
[Speaker 1]
know what's true, but my bad legal take

935
00:43:56,655 --> 00:44:00,494
[Speaker 1]
relates to what happened next. So Nati says

936
00:44:00,494 --> 00:44:03,900
[Speaker 1]
that after her TikToks blew up, the there

937
00:44:03,900 --> 00:44:07,040
[Speaker 1]
was province wide coverage of the beach pooping

938
00:44:07,100 --> 00:44:10,060
[Speaker 1]
issue. And then one day, Hallease showed up

939
00:44:10,060 --> 00:44:12,145
[Speaker 1]
at her door, and she actually recorded the

940
00:44:12,145 --> 00:44:14,705
[Speaker 1]
interaction with police. It was an OPP officer

941
00:44:14,705 --> 00:44:16,545
[Speaker 1]
who came to her home. She let him

942
00:44:16,545 --> 00:44:19,920
[Speaker 1]
into the house, and he told her, and

943
00:44:19,920 --> 00:44:22,340
[Speaker 1]
I'll quote what he said, someone called in

944
00:44:22,480 --> 00:44:25,520
[Speaker 1]
about someone posting things on TikTok about East

945
00:44:25,520 --> 00:44:28,795
[Speaker 1]
Indians pooping on the beach. He said that

946
00:44:28,795 --> 00:44:30,955
[Speaker 1]
there have been no incidents on poop of

947
00:44:30,955 --> 00:44:33,435
[Speaker 1]
pooping on the beach recently and that it's

948
00:44:33,435 --> 00:44:36,569
[Speaker 1]
an old incident. And she said, no. It's

949
00:44:36,569 --> 00:44:38,970
[Speaker 1]
recent. My daughter's friend just fell in one

950
00:44:38,970 --> 00:44:41,130
[Speaker 1]
of these pits. My daughter has dig dug

951
00:44:41,130 --> 00:44:43,210
[Speaker 1]
this stuff up. I've caught people pooping on

952
00:44:43,210 --> 00:44:47,085
[Speaker 1]
the beach. And the police officer said, quote,

953
00:44:47,305 --> 00:44:50,345
[Speaker 1]
maybe don't note the particular race of the

954
00:44:50,345 --> 00:44:52,770
[Speaker 1]
people who are pooping on the beach. And

955
00:44:52,770 --> 00:44:54,690
[Speaker 1]
she said that she's entitled to speak about

956
00:44:54,690 --> 00:44:57,490
[Speaker 1]
her experience and that she's not racist, and

957
00:44:57,490 --> 00:45:00,609
[Speaker 1]
her daughter is Indian. And the OPP said

958
00:45:00,609 --> 00:45:03,295
[Speaker 1]
instead she should just encourage people to call

959
00:45:03,295 --> 00:45:05,934
[Speaker 1]
by law, which she already has been doing,

960
00:45:05,934 --> 00:45:08,654
[Speaker 1]
obviously. So my bad legal tag goes to

961
00:45:08,654 --> 00:45:11,780
[Speaker 1]
the police. I mean, the officer, he from

962
00:45:11,780 --> 00:45:14,360
[Speaker 1]
the interaction, he was nice and respectful, but

963
00:45:14,900 --> 00:45:16,980
[Speaker 1]
police should not be going to people's homes

964
00:45:16,980 --> 00:45:19,185
[Speaker 1]
to chastise them about what they post on

965
00:45:19,185 --> 00:45:22,305
[Speaker 1]
social media. It's a really troubling interaction to

966
00:45:22,305 --> 00:45:25,365
[Speaker 1]
me, and it sort of shows an operating

967
00:45:25,829 --> 00:45:31,270
[Speaker 1]
operationalization of our concerns around Bill c sixty

968
00:45:31,270 --> 00:45:33,750
[Speaker 1]
three, which I've already referenced in this podcast.

969
00:45:33,750 --> 00:45:37,055
[Speaker 1]
That's the online harms bell. It shows people

970
00:45:37,055 --> 00:45:39,855
[Speaker 1]
are willing to weaponize concepts of hate speech.

971
00:45:39,855 --> 00:45:43,120
[Speaker 1]
Like, this is clearly not hate speech, but

972
00:45:43,200 --> 00:45:45,040
[Speaker 1]
some people don't know what that means, and

973
00:45:45,040 --> 00:45:47,840
[Speaker 1]
they call the police anyway and send the

974
00:45:47,840 --> 00:45:50,320
[Speaker 1]
police after this woman because they don't like

975
00:45:50,320 --> 00:45:53,685
[Speaker 1]
her TikToks. So my concern is, you know,

976
00:45:54,145 --> 00:45:56,565
[Speaker 1]
this is already happening without c sixty three.

977
00:45:57,105 --> 00:45:59,890
[Speaker 1]
If c sixty three is passed, you know,

978
00:45:59,890 --> 00:46:02,850
[Speaker 1]
would human rights tribunal bureaucrats or human rights

979
00:46:02,850 --> 00:46:06,450
[Speaker 1]
commission bureaucrats be investigating this woman and taking

980
00:46:06,450 --> 00:46:09,270
[Speaker 1]
her to the tribunal to defend her comments

981
00:46:09,375 --> 00:46:12,655
[Speaker 1]
that people are pooping on the beach. And

982
00:46:12,655 --> 00:46:14,994
[Speaker 1]
and frankly, if what she's saying is accurate,

983
00:46:15,454 --> 00:46:19,460
[Speaker 1]
this is actually important information. We don't want

984
00:46:19,460 --> 00:46:21,860
[Speaker 1]
our kids falling in poop pits on the

985
00:46:21,860 --> 00:46:24,965
[Speaker 1]
beach. We wanna know the truth. And look,

986
00:46:24,965 --> 00:46:26,745
[Speaker 1]
the mayor has said that this is misinformation,

987
00:46:27,605 --> 00:46:30,965
[Speaker 1]
but, obviously, the mayor is also interested in

988
00:46:30,965 --> 00:46:33,480
[Speaker 1]
trying to make sure his town doesn't have

989
00:46:33,480 --> 00:46:36,440
[Speaker 1]
this reputation so people continue to visit it.

990
00:46:36,440 --> 00:46:39,000
[Speaker 1]
So I actually think it's important information if

991
00:46:39,000 --> 00:46:42,155
[Speaker 1]
it's accurate. And either way, the police should

992
00:46:42,155 --> 00:46:45,275
[Speaker 1]
not be doing this. Like, this happens in

993
00:46:45,275 --> 00:46:47,115
[Speaker 1]
England where the police, like, show up to

994
00:46:47,115 --> 00:46:50,099
[Speaker 1]
knock on people's doors to, you know, chastise

995
00:46:50,099 --> 00:46:53,460
[Speaker 1]
them about noncriminal things that they have done.

996
00:46:53,460 --> 00:46:56,099
[Speaker 1]
Like, leave people alone. This is not a

997
00:46:56,099 --> 00:46:59,855
[Speaker 1]
police issue. Anyway, Josh, what's your bad legal

998
00:46:59,855 --> 00:47:00,755
[Speaker 1]
take this week?

999
00:47:01,934 --> 00:47:04,755
[Speaker 0]
My bad legal take goes to Amnesty International,

1000
00:47:05,290 --> 00:47:07,849
[Speaker 0]
which has named a Wet'suwet'en chief named Adam

1001
00:47:07,849 --> 00:47:10,170
[Speaker 0]
Gagnon or I'm not sure if that's how

1002
00:47:10,170 --> 00:47:13,025
[Speaker 0]
you pronounce it in BC. But anyway, Adam

1003
00:47:13,025 --> 00:47:16,465
[Speaker 0]
Gagneaux as their first prisoner of conscience, and

1004
00:47:16,465 --> 00:47:19,365
[Speaker 0]
he was he's serving a sixty day sentence

1005
00:47:19,425 --> 00:47:22,080
[Speaker 0]
for interfering with the twenty one twenty one

1006
00:47:22,080 --> 00:47:25,220
[Speaker 0]
construction of the Coastal GasLink natural gas pipeline

1007
00:47:25,360 --> 00:47:29,175
[Speaker 0]
in Northern BC after allegations that he and

1008
00:47:29,175 --> 00:47:32,455
[Speaker 0]
others seized and disabled heavy equipment and blocked

1009
00:47:32,455 --> 00:47:34,375
[Speaker 0]
the road to the pipeline and the actual

1010
00:47:34,375 --> 00:47:36,570
[Speaker 0]
sentence is for contempt of court. And I

1011
00:47:36,650 --> 00:47:39,310
[Speaker 0]
don't actually know actually know the details, but,

1012
00:47:39,610 --> 00:47:41,710
[Speaker 0]
you know, sometimes that means the courts ordered

1013
00:47:42,330 --> 00:47:45,370
[Speaker 0]
protesters to, you know, stop blocking construction, and

1014
00:47:45,370 --> 00:47:47,434
[Speaker 0]
they've ignored that order. So that might be

1015
00:47:47,434 --> 00:47:52,555
[Speaker 0]
what happened here. Interestingly, Gonyeo's case is, or

1016
00:47:52,555 --> 00:47:54,635
[Speaker 0]
his sentence is actually just house arrest. It's

1017
00:47:54,635 --> 00:47:57,840
[Speaker 0]
not even jail unlike what Tamara Litch faced

1018
00:47:57,840 --> 00:48:01,540
[Speaker 0]
after the Freedom Convoy protest when she, allegedly

1019
00:48:01,600 --> 00:48:04,640
[Speaker 0]
breached her onerous bail conditions that basically removed

1020
00:48:04,640 --> 00:48:06,825
[Speaker 0]
her right to freedom of speech. So I

1021
00:48:06,825 --> 00:48:08,605
[Speaker 0]
would say she was more of a prisoner

1022
00:48:08,825 --> 00:48:11,225
[Speaker 0]
of conscience. And the reason I think this

1023
00:48:11,225 --> 00:48:13,305
[Speaker 0]
is a bad legal take is just because

1024
00:48:13,305 --> 00:48:16,859
[Speaker 0]
it cheapens the whole concept of conscience rights

1025
00:48:17,400 --> 00:48:19,800
[Speaker 0]
to suggest that a particular person has been

1026
00:48:19,800 --> 00:48:22,040
[Speaker 0]
denied their conscience rights just because they're not

1027
00:48:22,040 --> 00:48:25,445
[Speaker 0]
allowed to, you know, participate in the blockading

1028
00:48:25,505 --> 00:48:28,244
[Speaker 0]
or sabotaging of a pipeline that's being legally

1029
00:48:28,305 --> 00:48:31,744
[Speaker 0]
constructed after many years of consultations and court

1030
00:48:31,744 --> 00:48:35,810
[Speaker 0]
battles. Confirming its legality is, like I said,

1031
00:48:35,810 --> 00:48:38,850
[Speaker 0]
cheapening the the the concept. And I've been

1032
00:48:38,850 --> 00:48:42,285
[Speaker 0]
researching conscience rights a little bit lately. And

1033
00:48:42,285 --> 00:48:44,525
[Speaker 0]
the point is, you know, it protects deeply

1034
00:48:44,525 --> 00:48:49,430
[Speaker 0]
held moral convictions because sometimes the official morality

1035
00:48:49,430 --> 00:48:50,950
[Speaker 0]
of the state ends up being wrong and

1036
00:48:50,950 --> 00:48:53,190
[Speaker 0]
people do need space to, you know, speak

1037
00:48:53,190 --> 00:48:56,405
[Speaker 0]
out and make their conscientious objections. But it

1038
00:48:56,405 --> 00:49:00,165
[Speaker 0]
doesn't protect an unlimited right to manifest conscience

1039
00:49:00,165 --> 00:49:02,645
[Speaker 0]
in every possible way since we all have

1040
00:49:02,645 --> 00:49:05,285
[Speaker 0]
conflicting views about what's right and what's wrong.

1041
00:49:05,285 --> 00:49:07,350
[Speaker 0]
And what it really means is the government

1042
00:49:07,350 --> 00:49:10,790
[Speaker 0]
needs to consider people's conscience claims and try

1043
00:49:10,790 --> 00:49:14,805
[Speaker 0]
to accommodate those conscientious objections as much as

1044
00:49:14,805 --> 00:49:17,045
[Speaker 0]
possible. It's not it's not a veto over

1045
00:49:17,045 --> 00:49:19,765
[Speaker 0]
everyone else. And like I said, there's so

1046
00:49:19,765 --> 00:49:22,645
[Speaker 0]
many serious conscience violations happening in Canada that

1047
00:49:22,645 --> 00:49:25,589
[Speaker 0]
I think MEC could have chosen, to support

1048
00:49:25,589 --> 00:49:28,549
[Speaker 0]
someone who wasn't so obviously, you know, breaking

1049
00:49:28,549 --> 00:49:31,190
[Speaker 0]
the law. So that's my bad legal take.

1050
00:49:31,190 --> 00:49:32,245
[Speaker 0]
Joanne, all two of yours.

1051
00:49:32,725 --> 00:49:34,485
[Speaker 2]
My bad legal take of the week goes

1052
00:49:34,485 --> 00:49:38,905
[Speaker 2]
to Charlotte Dawood, who writes in The Rabble,

1053
00:49:39,045 --> 00:49:42,040
[Speaker 2]
it's time originalism came to Canada and she

1054
00:49:42,040 --> 00:49:43,800
[Speaker 2]
makes a case or tries to make a

1055
00:49:43,800 --> 00:49:47,500
[Speaker 2]
case that originalism can and should be leveraged

1056
00:49:47,560 --> 00:49:50,535
[Speaker 2]
to achieve progressive legal wins in Canada. And

1057
00:49:50,535 --> 00:49:52,795
[Speaker 2]
let me just take you through her argument.

1058
00:49:53,494 --> 00:49:56,155
[Speaker 2]
So she starts by saying that, for example,

1059
00:49:56,454 --> 00:49:58,540
[Speaker 2]
section seven and many of the other press,

1060
00:49:58,940 --> 00:50:02,140
[Speaker 2]
provisions in the Charter. So section seven, which

1061
00:50:02,140 --> 00:50:06,060
[Speaker 2]
protects, deprivations only in accordance with the principles

1062
00:50:06,060 --> 00:50:09,565
[Speaker 2]
of fundamental justice and phrases like life, liberty,

1063
00:50:09,565 --> 00:50:12,605
[Speaker 2]
and security. The person, she points out that

1064
00:50:12,605 --> 00:50:15,964
[Speaker 2]
these phrases had very little precedent in Canadian

1065
00:50:15,964 --> 00:50:18,650
[Speaker 2]
law prior to the drafting of the Charter

1066
00:50:18,710 --> 00:50:21,430
[Speaker 2]
and she infers that this is because the

1067
00:50:21,430 --> 00:50:24,150
[Speaker 2]
drafters of the Charter wanted to delegate the

1068
00:50:24,150 --> 00:50:28,175
[Speaker 2]
judicial minds and concludes that section seven was

1069
00:50:28,175 --> 00:50:29,855
[Speaker 2]
in the minds of the people who drafted

1070
00:50:29,855 --> 00:50:34,660
[Speaker 2]
it, a quote unquote constitutional blank check. So

1071
00:50:34,660 --> 00:50:37,620
[Speaker 2]
when you do originalist legal interpretation, you tend

1072
00:50:37,620 --> 00:50:39,620
[Speaker 2]
to look at the original public meaning and

1073
00:50:39,620 --> 00:50:42,565
[Speaker 2]
that usually involves looking at legislative debates. And

1074
00:50:42,565 --> 00:50:45,545
[Speaker 2]
we know that section seven was intended explicitly

1075
00:50:45,765 --> 00:50:48,185
[Speaker 2]
by Pierre Elliott Trudeau and the other drafters,

1076
00:50:48,885 --> 00:50:52,230
[Speaker 2]
and the other signatories to protect procedural and

1077
00:50:52,230 --> 00:50:54,790
[Speaker 2]
not substantive due process. This is my sort

1078
00:50:54,790 --> 00:50:56,950
[Speaker 2]
of gloss on her argument, but let's get

1079
00:50:56,950 --> 00:50:59,609
[Speaker 2]
back to her argument because she is correct

1080
00:50:59,670 --> 00:51:03,415
[Speaker 2]
that the procedural versus substantive due process protected

1081
00:51:03,415 --> 00:51:06,455
[Speaker 2]
in section seven was pretty much immediately thrown

1082
00:51:06,455 --> 00:51:09,335
[Speaker 2]
out the window in an early case decided

1083
00:51:09,335 --> 00:51:11,660
[Speaker 2]
under the charter called the BC Motor Vehicle

1084
00:51:11,960 --> 00:51:15,240
[Speaker 2]
Reference, which says, that basically even though we

1085
00:51:15,240 --> 00:51:17,500
[Speaker 2]
know the debate say it protects only procedural

1086
00:51:17,559 --> 00:51:21,425
[Speaker 2]
due process, there's democratic legitimacy in giving full

1087
00:51:21,425 --> 00:51:23,505
[Speaker 2]
effect to the Charter rights. So we're gonna

1088
00:51:23,505 --> 00:51:27,020
[Speaker 2]
say it protects substantive due process as well.

1089
00:51:27,260 --> 00:51:29,920
[Speaker 2]
But then Dawood goes on and she concludes

1090
00:51:30,140 --> 00:51:33,100
[Speaker 2]
that the Charter can be a bedrock protection

1091
00:51:33,100 --> 00:51:35,664
[Speaker 2]
for the right to abortion. And she says

1092
00:51:35,664 --> 00:51:38,405
[Speaker 2]
we should be originalists not because the constitution

1093
00:51:38,464 --> 00:51:40,645
[Speaker 2]
was perfected with the creation of the charter,

1094
00:51:40,785 --> 00:51:43,365
[Speaker 2]
but because fixing the meaning of the constitutional

1095
00:51:43,505 --> 00:51:46,580
[Speaker 2]
text in the past means that while the

1096
00:51:46,580 --> 00:51:48,580
[Speaker 2]
constitution can never mean more than what it

1097
00:51:48,580 --> 00:51:51,220
[Speaker 2]
meant at the time, nor can it ever

1098
00:51:51,220 --> 00:51:53,555
[Speaker 2]
mean less. So it seems to me she's

1099
00:51:53,555 --> 00:51:55,315
[Speaker 2]
trying to have it both ways. She's saying

1100
00:51:55,315 --> 00:51:58,355
[Speaker 2]
on the one hand, section seven, another provisions

1101
00:51:58,355 --> 00:52:01,599
[Speaker 2]
of the Charter are constitutional blank check. They

1102
00:52:01,599 --> 00:52:04,400
[Speaker 2]
have no fixed meaning. It's entirely up to

1103
00:52:04,400 --> 00:52:06,960
[Speaker 2]
judges to decide what it means. And she's

1104
00:52:06,960 --> 00:52:10,020
[Speaker 2]
also saying, but it does include the right,

1105
00:52:10,615 --> 00:52:13,015
[Speaker 2]
the right to abortion and it can never

1106
00:52:13,015 --> 00:52:15,815
[Speaker 2]
go below that. So I just I must

1107
00:52:15,815 --> 00:52:19,280
[Speaker 2]
admit, I'm not following the logical corollaries that

1108
00:52:19,280 --> 00:52:21,760
[Speaker 2]
Ms. Doblewood is trying to make. It doesn't

1109
00:52:21,760 --> 00:52:24,720
[Speaker 2]
make sense so it gets my bad legal

1110
00:52:24,720 --> 00:52:26,994
[Speaker 2]
take of the week pick. But good try.

1111
00:52:26,994 --> 00:52:28,935
[Speaker 2]
It was an interesting novel argument.

1112
00:52:30,755 --> 00:52:33,415
[Speaker 0]
Alright. So that's the show for regular listeners.

1113
00:52:33,980 --> 00:52:35,900
[Speaker 0]
Please go to our website or the show

1114
00:52:35,900 --> 00:52:38,320
[Speaker 0]
notes and fill out our not reserved judgment

1115
00:52:38,380 --> 00:52:40,540
[Speaker 0]
survey so we can know what you like

1116
00:52:40,540 --> 00:52:44,145
[Speaker 0]
and don't like about the show. And, last

1117
00:52:44,145 --> 00:52:46,464
[Speaker 0]
month, July was actually our best month ever.

1118
00:52:46,464 --> 00:52:48,484
[Speaker 0]
Joanna and Christine, I don't know if you

1119
00:52:48,625 --> 00:52:50,770
[Speaker 0]
know that, but, listens are way up, which

1120
00:52:50,770 --> 00:52:53,090
[Speaker 0]
is unusual for the summer. So good for

1121
00:52:53,090 --> 00:52:55,730
[Speaker 0]
us. You can support our work by subscribing

1122
00:52:55,730 --> 00:52:58,050
[Speaker 0]
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1123
00:52:58,050 --> 00:53:00,595
[Speaker 0]
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1124
00:53:00,915 --> 00:53:02,435
[Speaker 0]
Ca, where you can sign up for our

1125
00:53:02,435 --> 00:53:05,555
[Speaker 0]
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1126
00:53:05,555 --> 00:53:08,410
[Speaker 0]
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1127
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[Speaker 0]
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