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

00:00:00.000 As promised, we have our long-awaited legal eagle herself, Christine Van Gein, who is the 0.64

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 1.00

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, 0.99

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 1.00

00:07:44.700 signs at the funerals of war veterans, celebrating the death of those veterans and attacking other 0.93

00:07:53.260 religious or sexual minority groups. This, this is an awful, an awful group. And if you Google Westboro 1.00

00:08:00.300 Baptist Church and the term pure evil, you get a lot of hits. Is that hate speech? Well, it certainly 0.76

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. 0.97

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.

Juno News - March 09, 2024

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

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