Juno News - October 01, 2023
Calgary’s anti-protest bylaw faces legal challenge (ft. Joanna Baron)
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Summary
As we've reported at True North, in the city of Calgary, there is a bylaw that is now facing a legal challenge. This bylaw came about as a direct response to protests of Drag Queen Story Hour, and it's a law that restricts your ability to protest any event that the municipal government deems to be protected as "political speech" and is now being challenged by the Canadian Constitution Foundation.
Transcript
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as we've reported at true north in the city of calgary there is a bylaw that is now facing a
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legal challenge it's a bylaw that establishes a so-called buffer zone between protesters and
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some events let's be real it's not in the bylaw but this came about as a direct response to
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protests of drag story times and it's a bylaw that restricts your ability to protest any event
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that effectively the government the municipal government deems to be protected it's not
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allowing you to protest with if they believe you are engaging in quote hateful messaging we fast
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forward to another story out of waterloo ontario where there's a proposal not yet a bylaw but a
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proposal to ban communication that makes people quote feel harassed unquote that's literally from
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the text of the report quote that makes them feel harassed there's a great story up at true north
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from my colleague cosmon georgia that i would encourage you to take a look at but uh to go
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back to the calgary bylaw it's being challenged by the canadian constitution foundation joanna baron
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joins me now the executive director over there and also one of the co-authors of a great new book
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about the covid era policy which i will certainly have her and her co-author christine van guine on
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to talk about but all that aside it's good to talk to you joanna thanks for coming on great to be here
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with you andrew so let's talk about the reality i mean the subtext of this bylaw here because they're
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not just going after protest in general you know from the context in the wording they're going after
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a very particular type of protest and they're really targeting it to a very particular type
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of viewpoint i would say well yes although it's not as narrow as you would think you're certainly
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correct that this came out as in as a response to protests around drag queen story hour however the
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text of the bylaw says bans protests on issues relating to gender national identity a whole category
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that could apply to many things so my colleague christine pointed out that if you wanted to have a
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protest about um against female genital mutilation since that is understood to be a cultural and
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religious practice that would be caught under the bylaw and so it's actually a sort of wide swath
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of categories um even you know protesting against climate change would be caught by the bylaw and so
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it's it's a whole category of things but as you say um the important part to remember is that this is
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sort of demarcating different types of protests that calgary city council are saying are permissible
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and not permissible whereas the supreme court of canada has been very clear that the guarantee of
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freedom of expression is content neutral the state doesn't get to say what i can demonstrate and protest
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about well and on that note i i would also point out here that political speech is the most protected
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basically it's deemed the most important it's you know free speech isn't just your right to say i
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prefer milk to cream in my coffee or something like that and and that's where you know the the things
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that need the most protection are the things that are the most prone to being censored or to be
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reined in yeah absolutely um and moreover where there's as you mentioned there's buffer zones that are
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identified in this bylaw which tend to be you know areas of 500 meters close to recreation centers
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and libraries and first of all it's hard if you know downtown calgary there isn't many areas where
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you wouldn't find a library or rec center somewhere within 500 meters and like those are the places
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where civil society tends to gather so it's a terribly draconian a bylaw i would also note that
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it carries a penalty of up to ten thousand dollars or a term of imprisonment um so actually one of the
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arguments that the canadian constitution foundation that we're making is that this is in substance
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a criminal law which city councils is a matter of federal jurisdiction um so city council is actually
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outside of their jurisdiction not to mention acting unconstitutionally on freedom of expression grounds
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one of the challenges that comes up here is that when they are there is as broadly as it's put as you
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shared joanna this this bylaw in place it effectively leaves everything up to discretion which means
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it's up to bylaw enforcement to decide on a case-by-case basis whether they want to and it's
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very it's very east germany in the sense that they have a law that basically lets them go after anyone
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and everyone and we're just to expect that well they'll pick and choose and they'll really only go
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after the people who deserve it like who is it that gets the authority to decide when to apply this
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well yeah completely the discretion will be left to the police and it will be them that decides
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whether to go ahead and lay charges and we can assume that certain politically correct demonstrations
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um that calgary city council perhaps agrees with because this is a very clear signal and we do know
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from the debates at city council that indeed they brought this about in response to concerns of
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protests about drag queen story hour but just to be clear this is not about us taking a position for
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or against drag queen story hour i would also add that if you were to protest drag queen story hour
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and you wanted to run a counter protest in favor of drag queen story hour guess what that's also relating
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to gender and sexuality so that also would be prohibited by the bylaw now whether you would be charged
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we don't know i'll say i know you have a big audience but i'll say that within the team of
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the ccf we talked about maybe if we go out to calgary and do our own protest against for example female
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genital mutilation let's see if we get arrested um but we we we elected not to and we elected to just
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seek public interest standing to challenge this bylaw that's litigant well let me ask you about that
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legal challenge i mean do you need to wait for someone to be in your view unfairly uh prosecuted
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or charged under this or or can you affect it's not a legal term but can you challenge it on spec say
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you know irrespective of how then when this is used it's bad on its face and needs to go so we can say
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as a public interest charity and we are a legal charity that has a long track record of fighting
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for the enforcement of constitutional rights in court that no that harm has existed has happened
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since this became law and so we're challenging it on the basis of you should be able to look at this
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law facially see that it is not content neutral that it singles out different types of peaceful
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constitutionally protected expression as well as the guarantee for freedom of assembly and you should
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be able to determine that that is contrary to the constitution um so you can you know seek public
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interest standing in challenge i wouldn't quite say on spec because there is an important chilling
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effect right that whether or not somebody is actually charged isn't it disturbing that somebody
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would have to think well i'm not sure if you know this uh i want to protest uh israel or palestine
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either either one for example but i'm not sure if the calgary police are going to arrest me we would
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say at the ccf you've already done the damage you've already chilled what is legitimate political uh protected
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expression that's actually quite an important point and i mean i remember when the covid stuff was going
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along i i mean i've never been too much of a rabble i guess i've i've roused a bit of rabble in my day
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but when there was talk of ontario potentially doing a curfew i was like i'm going to be out on the streets
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at 9 p.m every night like i'm in bed at like 9 30 so like i would have been doing it purely to be a
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disturber of the fecal matter but some people would have done the opposite as you've said say oh i don't want a
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ticket especially when in covet as i know you'll be writing about in your upcoming book some of the
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fines were so steep a lot of people that you know just might have been tempted to do something would
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say uh you know i i don't want to risk the penalty and i i can see that exact thing happening here
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someone who says well you know i'm all for protesting but i don't want to break the law i
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don't i don't want to deal with that yeah exactly it just like you know people said to us that they
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didn't want to donate to the ccf after the freedom convoy because even though they were pretty sure it was
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okay who wants to risk having their bank accounts frozen and we talk a lot more about that in pandemic
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panic which is available for pre-order on amazon now well it definitely will have you and christine
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back on that let me just ask you about the process here as best as you've been able to unearth it
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because i know the federal government in particular they'll run every bit of legislation by the
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department of justice and supposedly charter proof it or offer recommendations on on how to immunize
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it to some extent against a charter challenge municipalities aren't as well resourced but do
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we think there was any legal input at all on this that we've been able to see where a lawyer gave them
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the case for why this was justifiable so we know for example in terms of process this was rammed through
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in a single session an extended debate on the merits of the bill which we know certain councillors did
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raise concerns about the constitutionality perhaps ones with the legal background but this was pushed
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through in a single session without any extended debate um so we are inclined to think that they
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did not give this extensive legal consideration and they were quite surprised um when we we challenged
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it right out the gate have you had a chance to review i know it's not made it into a bylaw yet but
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what they've proposed in waterloo which strikes me as very similar and and just the epitome of subjective
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here things that make you feel harassed like i feel harassed sometimes by an ad that i might not like
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but i don't believe it should be taken down with any force of law yeah so the report the waterloo report
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defines being harassed as feeling tormented troubled worried plagued or badgered and we are actually
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talking about this this morning on our podcast not reserving judgment i mean who doesn't feel
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badgered on a daily basis i live in downtown toronto it's kind of part of the game that doesn't
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i feel badgered by charity fundraisers sometimes that you run into in downtown toronto but they
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have a right to be there well exactly so i would say this bylaw is quite bad but it's actually not
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as bad calgary actually has an identical version on street harassment very similar language but it
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actually applies everywhere in calgary from the sidewalks to the restaurants so it's actually even
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worse and we've focused on the protest bylaw but we certainly are studying this and just to be
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clear in a recent case early 2022 case the supreme court of canada has said that there is no right
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not to be offended this is the mike ward case where there is the quebec comedian making these edgy jokes
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supreme court said you know you may find this distasteful but in a free society you have no right
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not to be offended that is not a thing and so governments should certainly not be in the business
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of enacting laws that punish people who merely offend others uh and my colleague was talking about
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this morning how this street harassment bill played out in calgary is kind of funny there was an argument
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at a public pool over trans people being able to use change rooms of the sex they identify with
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and so some individuals were protesting against this policy and then there were counter protesters
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protesting the protests and so they all ended up offending each other and harassing each other
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and both sides ended up with street harassment fines which begs the question why should the police have
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been involved in this at all mutually yeah mutually assured destruction there is the the way it tends to
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come out here i'll just make a point here and get you to weigh in as we close joanna because
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oftentimes whenever you talk about free speech or freedom of expression whether you mean it in a legal
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sense or just the moral sense you'll get uh the very predictable response which is well that's
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different than hate speech and free speech is not the same as hate speech and you know obviously there
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is a criminal prohibition on hate speech in canada but what people forget is that that still applies
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without this bylaw like if speech is crossing that boundary where it is meeting that very high bar to
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be criminalized the law already applies police already have the ability to deal with that so
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necessarily a bylaw like this is trying to lower that threshold and and cover more speech yeah well
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hate speech is already problematic enough because it's such a subjective definition but it is speech
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that reaches a certain threshold of encouraging really hate and perhaps violence against certain
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groups um but that's already a very problematic standard and so yes if you're gonna water it down
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further and say well what if you made me feel badgered what if you made me feel harassed you're
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just like bringing in more and more barriers to free expression which i totally agree with what you said
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at the outset this is how free expression is how we work things out in a free society if we can't work
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things out through conversation we have to work things out through fists and that doesn't seem like
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a particularly acceptable solution now is it october 31st your book comes out right yes all right
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nice way to scare yourself on halloween by reading about the dismal state of civil liberties in canada
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it is called pandemic panic it is written by joanna baron and christine van gein and i believe i am
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cited in it if i'm not mistaken so you were mentioned many times well that's rarely good but i appreciate it
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very much and i i did have a chance to review an advanced copy and it's a wonderful read so people should
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definitely check that out joanna thank you so much for coming on thanks andrew thanks for listening
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to the andrew lawton show support the program by donating to true north at www.tnc.news