Juno News - Calgary’s anti-protest bylaw faces legal challenge (ft. Joanna Baron)

00:00:00.000 as we've reported at true north in the city of calgary there is a bylaw that is now facing a

00:00:15.620 legal challenge it's a bylaw that establishes a so-called buffer zone between protesters and

00:00:21.600 some events let's be real it's not in the bylaw but this came about as a direct response to

00:00:27.560 protests of drag story times and it's a bylaw that restricts your ability to protest any event

00:00:35.260 that effectively the government the municipal government deems to be protected it's not

00:00:40.720 allowing you to protest with if they believe you are engaging in quote hateful messaging we fast

00:00:48.480 forward to another story out of waterloo ontario where there's a proposal not yet a bylaw but a

00:00:54.580 proposal to ban communication that makes people quote feel harassed unquote that's literally from

00:01:02.480 the text of the report quote that makes them feel harassed there's a great story up at true north

00:01:07.740 from my colleague cosmon georgia that i would encourage you to take a look at but uh to go

00:01:12.560 back to the calgary bylaw it's being challenged by the canadian constitution foundation joanna baron

00:01:18.560 joins me now the executive director over there and also one of the co-authors of a great new book

00:01:23.660 about the covid era policy which i will certainly have her and her co-author christine van guine on

00:01:29.580 to talk about but all that aside it's good to talk to you joanna thanks for coming on great to be here

00:01:34.600 with you andrew so let's talk about the reality i mean the subtext of this bylaw here because they're

00:01:40.460 not just going after protest in general you know from the context in the wording they're going after

00:01:45.320 a very particular type of protest and they're really targeting it to a very particular type

00:01:50.740 of viewpoint i would say well yes although it's not as narrow as you would think you're certainly

00:01:57.240 correct that this came out as in as a response to protests around drag queen story hour however the

00:02:03.340 text of the bylaw says bans protests on issues relating to gender national identity a whole category

00:02:11.800 that could apply to many things so my colleague christine pointed out that if you wanted to have a

00:02:16.740 protest about um against female genital mutilation since that is understood to be a cultural and

00:02:23.620 religious practice that would be caught under the bylaw and so it's actually a sort of wide swath

00:02:29.580 of categories um even you know protesting against climate change would be caught by the bylaw and so

00:02:35.620 it's it's a whole category of things but as you say um the important part to remember is that this is

00:02:42.260 sort of demarcating different types of protests that calgary city council are saying are permissible

00:02:49.160 and not permissible whereas the supreme court of canada has been very clear that the guarantee of

00:02:54.180 freedom of expression is content neutral the state doesn't get to say what i can demonstrate and protest

00:03:00.100 about well and on that note i i would also point out here that political speech is the most protected

00:03:07.000 basically it's deemed the most important it's you know free speech isn't just your right to say i

00:03:11.200 prefer milk to cream in my coffee or something like that and and that's where you know the the things

00:03:16.800 that need the most protection are the things that are the most prone to being censored or to be

00:03:21.640 reined in yeah absolutely um and moreover where there's as you mentioned there's buffer zones that are

00:03:30.160 identified in this bylaw which tend to be you know areas of 500 meters close to recreation centers

00:03:36.740 and libraries and first of all it's hard if you know downtown calgary there isn't many areas where

00:03:41.600 you wouldn't find a library or rec center somewhere within 500 meters and like those are the places

00:03:47.000 where civil society tends to gather so it's a terribly draconian a bylaw i would also note that

00:03:54.200 it carries a penalty of up to ten thousand dollars or a term of imprisonment um so actually one of the

00:04:00.360 arguments that the canadian constitution foundation that we're making is that this is in substance

00:04:05.420 a criminal law which city councils is a matter of federal jurisdiction um so city council is actually

00:04:12.440 outside of their jurisdiction not to mention acting unconstitutionally on freedom of expression grounds

00:04:18.720 one of the challenges that comes up here is that when they are there is as broadly as it's put as you

00:04:25.280 shared joanna this this bylaw in place it effectively leaves everything up to discretion which means

00:04:32.280 it's up to bylaw enforcement to decide on a case-by-case basis whether they want to and it's

00:04:38.300 very it's very east germany in the sense that they have a law that basically lets them go after anyone

00:04:44.260 and everyone and we're just to expect that well they'll pick and choose and they'll really only go

00:04:48.680 after the people who deserve it like who is it that gets the authority to decide when to apply this

00:04:53.960 well yeah completely the discretion will be left to the police and it will be them that decides

00:05:00.640 whether to go ahead and lay charges and we can assume that certain politically correct demonstrations

00:05:06.840 um that calgary city council perhaps agrees with because this is a very clear signal and we do know

00:05:13.120 from the debates at city council that indeed they brought this about in response to concerns of

00:05:18.620 protests about drag queen story hour but just to be clear this is not about us taking a position for

00:05:24.440 or against drag queen story hour i would also add that if you were to protest drag queen story hour

00:05:29.540 and you wanted to run a counter protest in favor of drag queen story hour guess what that's also relating

00:05:36.460 to gender and sexuality so that also would be prohibited by the bylaw now whether you would be charged

00:05:43.720 we don't know i'll say i know you have a big audience but i'll say that within the team of

00:05:48.920 the ccf we talked about maybe if we go out to calgary and do our own protest against for example female 1.00

00:05:54.720 genital mutilation let's see if we get arrested um but we we we elected not to and we elected to just

00:06:02.120 seek public interest standing to challenge this bylaw that's litigant well let me ask you about that

00:06:08.800 legal challenge i mean do you need to wait for someone to be in your view unfairly uh prosecuted

00:06:15.260 or charged under this or or can you affect it's not a legal term but can you challenge it on spec say

00:06:20.880 you know irrespective of how then when this is used it's bad on its face and needs to go so we can say

00:06:26.760 as a public interest charity and we are a legal charity that has a long track record of fighting

00:06:32.060 for the enforcement of constitutional rights in court that no that harm has existed has happened

00:06:37.700 since this became law and so we're challenging it on the basis of you should be able to look at this

00:06:43.780 law facially see that it is not content neutral that it singles out different types of peaceful

00:06:50.200 constitutionally protected expression as well as the guarantee for freedom of assembly and you should

00:06:56.300 be able to determine that that is contrary to the constitution um so you can you know seek public

00:07:02.280 interest standing in challenge i wouldn't quite say on spec because there is an important chilling

00:07:07.560 effect right that whether or not somebody is actually charged isn't it disturbing that somebody

00:07:13.800 would have to think well i'm not sure if you know this uh i want to protest uh israel or palestine

00:07:20.000 either either one for example but i'm not sure if the calgary police are going to arrest me we would

00:07:26.440 say at the ccf you've already done the damage you've already chilled what is legitimate political uh protected

00:07:33.080 expression that's actually quite an important point and i mean i remember when the covid stuff was going

00:07:39.440 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

00:07:44.080 but when there was talk of ontario potentially doing a curfew i was like i'm going to be out on the streets

00:07:49.740 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

00:07:55.520 disturber of the fecal matter but some people would have done the opposite as you've said say oh i don't want a

00:08:01.320 ticket especially when in covet as i know you'll be writing about in your upcoming book some of the

00:08:06.060 fines were so steep a lot of people that you know just might have been tempted to do something would

00:08:10.280 say uh you know i i don't want to risk the penalty and i i can see that exact thing happening here

00:08:14.980 someone who says well you know i'm all for protesting but i don't want to break the law i

00:08:19.180 don't i don't want to deal with that yeah exactly it just like you know people said to us that they

00:08:23.740 didn't want to donate to the ccf after the freedom convoy because even though they were pretty sure it was 0.70

00:08:29.340 okay who wants to risk having their bank accounts frozen and we talk a lot more about that in pandemic

00:08:34.520 panic which is available for pre-order on amazon now well it definitely will have you and christine

00:08:40.860 back on that let me just ask you about the process here as best as you've been able to unearth it

00:08:45.560 because i know the federal government in particular they'll run every bit of legislation by the

00:08:50.120 department of justice and supposedly charter proof it or offer recommendations on on how to immunize

00:08:55.560 it to some extent against a charter challenge municipalities aren't as well resourced but do

00:09:01.640 we think there was any legal input at all on this that we've been able to see where a lawyer gave them

00:09:07.140 the case for why this was justifiable so we know for example in terms of process this was rammed through

00:09:13.160 in a single session an extended debate on the merits of the bill which we know certain councillors did

00:09:19.020 raise concerns about the constitutionality perhaps ones with the legal background but this was pushed

00:09:24.180 through in a single session without any extended debate um so we are inclined to think that they

00:09:30.840 did not give this extensive legal consideration and they were quite surprised um when we we challenged

00:09:37.220 it right out the gate have you had a chance to review i know it's not made it into a bylaw yet but

00:09:43.540 what they've proposed in waterloo which strikes me as very similar and and just the epitome of subjective

00:09:49.540 here things that make you feel harassed like i feel harassed sometimes by an ad that i might not like

00:09:55.540 but i don't believe it should be taken down with any force of law yeah so the report the waterloo report

00:10:01.000 defines being harassed as feeling tormented troubled worried plagued or badgered and we are actually

00:10:07.120 talking about this this morning on our podcast not reserving judgment i mean who doesn't feel

00:10:11.480 badgered on a daily basis i live in downtown toronto it's kind of part of the game that doesn't

00:10:16.420 i feel badgered by charity fundraisers sometimes that you run into in downtown toronto but they

00:10:20.960 have a right to be there well exactly so i would say this bylaw is quite bad but it's actually not

00:10:27.380 as bad calgary actually has an identical version on street harassment very similar language but it

00:10:34.340 actually applies everywhere in calgary from the sidewalks to the restaurants so it's actually even

00:10:40.280 worse and we've focused on the protest bylaw but we certainly are studying this and just to be

00:10:46.180 clear in a recent case early 2022 case the supreme court of canada has said that there is no right

00:10:53.160 not to be offended this is the mike ward case where there is the quebec comedian making these edgy jokes

00:10:58.640 supreme court said you know you may find this distasteful but in a free society you have no right

00:11:04.320 not to be offended that is not a thing and so governments should certainly not be in the business

00:11:09.920 of enacting laws that punish people who merely offend others uh and my colleague was talking about

00:11:16.400 this morning how this street harassment bill played out in calgary is kind of funny there was an argument

00:11:22.620 at a public pool over trans people being able to use change rooms of the sex they identify with

00:11:28.680 and so some individuals were protesting against this policy and then there were counter protesters

00:11:34.380 protesting the protests and so they all ended up offending each other and harassing each other

00:11:39.480 and both sides ended up with street harassment fines which begs the question why should the police have

00:11:45.980 been involved in this at all mutually yeah mutually assured destruction there is the the way it tends to

00:11:51.480 come out here i'll just make a point here and get you to weigh in as we close joanna because

00:11:56.680 oftentimes whenever you talk about free speech or freedom of expression whether you mean it in a legal

00:12:01.080 sense or just the moral sense you'll get uh the very predictable response which is well that's

00:12:05.740 different than hate speech and free speech is not the same as hate speech and you know obviously there

00:12:10.220 is a criminal prohibition on hate speech in canada but what people forget is that that still applies

00:12:15.960 without this bylaw like if speech is crossing that boundary where it is meeting that very high bar to

00:12:21.780 be criminalized the law already applies police already have the ability to deal with that so

00:12:26.660 necessarily a bylaw like this is trying to lower that threshold and and cover more speech yeah well

00:12:34.040 hate speech is already problematic enough because it's such a subjective definition but it is speech

00:12:40.240 that reaches a certain threshold of encouraging really hate and perhaps violence against certain

00:12:46.420 groups um but that's already a very problematic standard and so yes if you're gonna water it down

00:12:51.900 further and say well what if you made me feel badgered what if you made me feel harassed you're

00:12:57.140 just like bringing in more and more barriers to free expression which i totally agree with what you said

00:13:03.660 at the outset this is how free expression is how we work things out in a free society if we can't work

00:13:09.880 things out through conversation we have to work things out through fists and that doesn't seem like

00:13:15.400 a particularly acceptable solution now is it october 31st your book comes out right yes all right

00:13:22.260 nice way to scare yourself on halloween by reading about the dismal state of civil liberties in canada

00:13:27.200 it is called pandemic panic it is written by joanna baron and christine van gein and i believe i am

00:13:33.080 cited in it if i'm not mistaken so you were mentioned many times well that's rarely good but i appreciate it

00:13:39.720 very much and i i did have a chance to review an advanced copy and it's a wonderful read so people should

00:13:45.020 definitely check that out joanna thank you so much for coming on thanks andrew thanks for listening

00:13:50.140 to the andrew lawton show support the program by donating to true north at www.tnc.news

Juno News - October 01, 2023

Calgary’s anti-protest bylaw faces legal challenge (ft. Joanna Baron)

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