Juno News - March 09, 2024


Lawyer reacts to Trudeau’s latest censorship scheme (ft. Christine Van Geyn)


Episode Stats

Length

12 minutes

Words per Minute

160.38167

Word Count

1,989

Sentence Count

106

Misogynist Sentences

3

Hate Speech Sentences

5


Summary


Transcript

00:00:00.000 As promised, we have our long-awaited legal eagle herself, Christine Van Gein, who is the
00:00:13.380 litigation director for the Canadian Constitution Foundation on the program. Christine, always good
00:00:19.460 to talk to you. Thanks for coming on today. Yeah, thanks for having me on, Andrew.
00:00:23.620 So, I mean, we've covered a lot of, I think, the basis of why I'm concerned as a non-lawyer
00:00:29.060 free speech advocate on this. But let me just ask you about that point that Chris had alluded
00:00:33.620 to there and that I spoke to earlier, which is that the government has gone after a lot
00:00:38.740 of things here that most people would assume, rightfully so, are illegal. I mean, even on
00:00:43.800 the non-consensual images stuff, I understood a lot of that already existed in law. Certainly
00:00:48.140 on hate speech, we already have a criminal prohibition on hate speech, which applies to the internet.
00:00:53.220 So this new definition has a lower threshold. Am I missing anything here?
00:00:58.440 So I think that the definition, the statutory definition they're proposing seems like it's
00:01:03.100 the same definition as exists in the what caught decision, which is where that previously the
00:01:11.540 definition came from. The problem is that it's by its very nature amorphous that they are increasing
00:01:18.580 the penalties and they're creating a standalone offense of an offense motivated by hatred and
00:01:24.320 that it can apply to all federal laws. So all federal statutes are included. So anyone who
00:01:32.220 breaks any other federal law motivated by hate can be found guilty of a hate crime and subject
00:01:39.040 to a maximum life sentence. So that's not just limited to the criminal code. They're also increasing
00:01:45.260 the statutory maximum for the crime of advocating genocide up to a maximum of currently five years.
00:01:52.860 They're increasing that to life imprisonment. And look, obviously the problem with criticizing this bill
00:02:00.700 is that advocating for genocide is abhorrent and terrible. There's a lot of political challenges in
00:02:07.500 criticizing legislation like this. A big part of it is that for some reason, politically, the government
00:02:15.020 has tied completely unrelated things to this bill. So they're trying to solve completely unrelated problems
00:02:21.100 of sexual abuse imagery, whether that's sexual abuse of children or the non-consensual disclosure of
00:02:28.380 intimate images, two things that are already criminalized, are tying that to hate speech,
00:02:33.100 which is a inherently amorphous and subjective problem. And obviously hate online is wrong and bad,
00:02:43.180 but the way the government has proposed tackling this is unconstitutional. I think that this law is
00:02:49.900 going to be subject to an immediate charter challenge. And we don't want the parts of the bill that deal
00:02:56.780 with sexual abuse to be struck down. If this government actually cared about sexual criminals,
00:03:02.460 they would not tie increased penalties or improved reporting for sexual abuse to a constitutionally
00:03:12.380 vulnerable proposal. Explain to me if you're able to, because I know a lot of this would come
00:03:18.860 from regulations that would have to be passed after the bill is passed and enacted, but how this would
00:03:24.780 even work when you're talking about the relationship between these regulations and internet platforms like
00:03:30.060 Facebook or Twitter, because they would have under this an obligation to remove content that would
00:03:36.140 be in violation of this. But I mean, what would that mechanism even look like? My fear is that Facebook
00:03:43.980 is either going to do the non-compliance thing that they did with C18 and say, you know what,
00:03:47.980 it's too much of a hassle. We're just shutting down our platform to Canadians. There's no point in
00:03:52.460 being the adjudicators. Or if they want to play ball, the worst thing is, all right, well, we'll come
00:03:57.900 up with these terms of service to encompass what we think the Canadian government is after. And all of
00:04:03.420 a sudden you have Facebook preemptively zapping content because they don't want to deal with the
00:04:08.860 digital safety commissioner of Canada. Yeah, I think that's absolutely right. It's going to create
00:04:13.660 a chilling effect where content will be preemptively or proactively removed when it doesn't actually meet the
00:04:21.420 threshold that's being outlined in this proposed statutory definition of hate speech. And look,
00:04:30.060 it's because the definition is inherently subjective and I specialize in expression and freedom of
00:04:37.180 expression law. And it's difficult for lawyers like me to explain where that line gets drawn. So I think
00:04:45.340 it's going to be incredibly hard for regular Canadians who now will, the bill proposes this automatic
00:04:52.700 reporting mechanism. So ordinary Canadians can report content that they think meets this threshold.
00:04:58.300 We're going to see just an inundation of reporting that comes with, if it does meet that threshold,
00:05:05.500 huge financial penalties for the platforms. I think it's, I think it was $10 million in fines or 6% of
00:05:17.180 global revenues, whichever is higher. And for platforms like Facebook, Meta, Google, Instagram,
00:05:23.900 these are, that's a huge amount of money. They obviously are going to be incentivized
00:05:28.140 to take content down proactively. And then the other part of this is that the creation of this civil
00:05:36.540 remedy where people can complain about speech that they think is hateful to the Canadian Human Rights
00:05:43.420 Commission, people are going to soft paddle their own speech and not say things that they, that they
00:05:49.580 might otherwise say. And I wanted to give you a couple of examples because I think that we, we are talking
00:05:56.060 about this in a very like high level way without actually putting our teeth in what some of these
00:06:02.140 terms mean. So hate speech is defined in the case law. It's now going to be put in the statute as words
00:06:10.380 like detestation or vilification. It doesn't include speech that is just offensive or it has to be at a
00:06:18.220 higher level, even though these are kind of synonyms. Yeah, more, it has to be higher than disdain.
00:06:22.460 It can't just be disdain. Yeah. So to try to put some teeth in that, in the what caught decision
00:06:27.580 from the Supreme Court, the court gave a few examples of what they call the hallmarks of
00:06:33.340 hatred, speech that has the hallmarks of hatred. So an example is blaming a whole groups, a whole group
00:06:41.820 for current problems in society, alleging that those, that group is a powerful menace. Now I can
00:06:46.700 certainly imagine that type of language being used in a way that blames some racial group.
00:06:53.100 But frankly, Andrew, I've been to some women's meetings where you are the problem. It's men,
00:06:59.900 it's white men. I've been to DEI trainings where it's, those are the groups who are blamed for the
00:07:07.740 problems of society. And look, I don't like DEI training, but I don't think it should be illegal.
00:07:13.100 Another example is describing an entire group as, quote, pure evil. This is another hallmark of
00:07:23.020 hatred. And certainly I can imagine examples where calling an entire race or religion
00:07:28.860 as pure evil. But I'm not sure if you're familiar with the group, the Westboro Baptist Church. If you,
00:07:35.740 this is a notoriously awful church based in the United States that famously holds
00:07:44.700 signs at the funerals of war veterans, celebrating the death of those veterans and attacking other
00:07:53.260 religious or sexual minority groups. This, this is an awful, an awful group. And if you Google Westboro
00:08:00.300 Baptist Church and the term pure evil, you get a lot of hits. Is that hate speech? Well, it certainly
00:08:06.780 is calling a religious group pure evil, which is a hallmark of hatred. But under C63, do we want to
00:08:16.700 subject people who say that that church is, quote, pure evil to criminal penalty or even to civil penalty?
00:08:25.980 I don't know that that's an outcome that we want. So these are just a couple of examples to put some
00:08:31.580 color, some flavor to what this might look like and why it's such a problem when we criminalize
00:08:39.100 speech. We, we want these ideas to be fleshed out and debated. And frankly, a lot of the things that
00:08:45.180 might, you know, you can think a hallmark of hatred. Well, of course, using these terms will always be
00:08:51.420 hateful, but it, but it won't be, it just won't. And, and we don't want to criminalize that.
00:08:56.380 And I know that I mentioned a little bit before you came on, there's this, you know, $20,000 that
00:09:00.860 if you're a successful complainant, you could theoretically get up to, and it's dependent on
00:09:05.980 what you've endured on this, but, but really to make a complaint, it doesn't look like you need to
00:09:11.180 have suffered anything from it, or it even needs to have been targeted to you. I mean, if I
00:09:15.580 am a member of some group and I don't like your post that affects my group, even if you didn't
00:09:22.140 direct it at me, it sounds like I would have standing to bring that to the Canadian human
00:09:27.580 rights stars. Would I not? Yeah. I mean, some of these details haven't been fleshed out completely
00:09:32.140 yet, but certainly that's sort of how the old Canadian human rights commission section
00:09:38.860 act that had section 13, where you could make these civil complaints. That's how it used to work.
00:09:43.980 And that provision was famously repealed after it was abused to bring these claims against author Mark
00:09:53.260 Stein. So it was right for parliament to remove that 10 years ago and to bring it back now just
00:09:59.820 doesn't make any sense. It shouldn't, it shouldn't happen. And keep in mind that these civil penalties
00:10:07.100 will be at a, be proven at a lower threshold than the criminal penalties to prove the criminal offenses
00:10:13.500 of hate speech. It's beyond a reasonable doubt. And under the civil penalty, it's be on a balance
00:10:20.380 of probabilities. So, and in many ways, look, there's going to be a lot of frivolous complaints.
00:10:26.140 I mean, I'm willing to take bets. I'm sure there's some Vegas odds on who's going to have a complaint
00:10:31.180 first, you or me, Andrew.
00:10:32.780 Oh, I'm getting one on day one. I think you're, you're too nice on that.
00:10:37.900 No, people have already been saying, I can't wait to have Christine charged.
00:10:44.220 Some tech person's going to make some script that you just like, you know, select your right wing
00:10:48.780 hater and you do like autofile complaints. It'll be like on Twitter when you report something and
00:10:53.820 it'll like give you 10 sample tweets. And it was like, check the boxes of the ones you might also want
00:10:57.980 to complain about. Yeah. So it, in many ways, like these might, these complaints might not be
00:11:03.580 investigated as, but as Chris Sims, your previous guest explained that they're going to need to
00:11:09.020 have a whole bureaucracy to be investigating these complaints and dismissing them. And then some of
00:11:13.980 them that perhaps aren't even close to the threshold are still going to be investigated. And once you're
00:11:20.940 investigated, the process becomes the punishment because you need to defend yourself in that process.
00:11:26.060 And even if it's not a criminal charge, even if you have not even risen to the level of civil hate
00:11:33.740 speech, you still are going to pay the costs of defending yourself through a lawyer or socially,
00:11:40.700 the costs of having your name dragged through the mud. Well, we'll certainly be unpacking this in
00:11:46.220 more angles as things progress. The liberals have been, I mean, the thing is, it's taken them
00:11:51.820 about three years to come up with this. So the idea that there was something they overlooked
00:11:56.700 is very unlikely. They're very aware of what's in this. They've chosen this all deliberately. And I
00:12:01.740 think that should be very concerning. Christine Van Gein, I know you'll have lots of commentary on this
00:12:05.980 on your podcast over at the CCF. Thank you so much for sharing your thoughts as always with us.
00:12:10.780 Thanks for listening to the Andrew Lawton Show. Support the program by donating to True North at
00:12:17.100 www.tnc.news.