Juno News - P.E.I. councillor faces removal for sharing the wrong opinion

00:00:00.000 I want to welcome into the show Josh Dehaz who is a lawyer with the Canadian Constitution

00:00:12.640 Foundation where he is also a preeminent podcast host a competitor but he does great work over

00:00:17.480 there alongside Christine Van Gein and Joanna Barron. Josh good to have you back on the show

00:00:22.020 thanks for coming on. Good to be here. So I want to talk about this free speech fight in Prince

00:00:27.760 Edward Island in a few moments but but just on the online harm stuff obviously we have to wait for

00:00:32.720 the the text of the bill to come out but we know from the first version of it and what the government

00:00:37.480 has said in public messaging what it's likely to look like here. This is going to be just a feeding

00:00:43.080 frenzy for civil liberties lawyers based on like any interpretation of what they're coming out with

00:00:48.600 right? Yeah well if if they come if they come out with a bill that brings back something like

00:00:54.840 section 13 you know if anything that looks like what they proposed under bill c36 they're going to

00:01:00.880 have all kinds of challenges because you know it's just would not be constitutional to do something

00:01:07.640 that extreme to have you know $20,000 fines for things that you you say on the internet that

00:01:14.160 somebody finds offensive and so we really hope that that's not what they come up with but I guess

00:01:21.040 we'll have to wait and see for the details in terms of this idea of an ombudsman or I think we're

00:01:26.840 supposed to say ombudsperson so just yeah it's actually hate speech if you say ombudsman it could

00:01:32.600 be under this new bill so I'll just go with the ombudsperson to be careful here that raises all kinds

00:01:38.720 of other potential free speech issues here you know if they go with 24-hour takedowns that is just

00:01:45.460 going to lead Facebook and other you know other internet service providers to take down anything

00:01:52.900 that could put them at risk or make them liable so that would be a huge free speech issue too that

00:01:58.400 we would have to to try and attack. Yeah and I and I maybe I'm again I'm not a lawyer I I play one on

00:02:04.200 TV sometimes but the the one thing that comes out here is that under c18 the liberal government put

00:02:10.020 this regulation risk requirement on on companies like Facebook and Google and said you guys have

00:02:16.000 to pay news companies if you're going to have news on your platform so Facebook says all right it's

00:02:20.220 not worth the hassle we're just going to ban news we looked into it we got a legal opinion because we

00:02:24.920 were wondering if we could sue the government and every lawyer we talked to said well no because

00:02:28.860 Facebook made the decision I mean they may have done it in response to legislation but your issues

00:02:33.740 with Facebook which has I would concede no legal obligation to allow anyone to use its platform

00:02:39.380 you apply that here and I worry that the same thing applies where Facebook will just develop a

00:02:45.200 broad terms of service to encompass the law but if Facebook's zapping your content where's your

00:02:52.060 recourse if you've been censored do you even have any? Yeah that would be that that's that's the issue

00:02:57.900 here so I think you could still mount some sort of challenge but it would be very difficult to do

00:03:02.820 of Facebook itself wasn't getting involved in in that sort of charter challenge the other the other

00:03:10.160 concern I would have is that companies like Facebook might just leave Canada and you know people laugh at

00:03:16.360 that but right now you have similar sorts of legislation in the European Union and they're they're they're

00:03:23.140 telling Twitter all the time look if you don't comply with the with our requirements and you know get rid of

00:03:30.320 more of what we consider misinformation then we might kick Twitter out of Europe and it Canada's a lot

00:03:37.160 smaller Twitter probably cares a lot less about us but there's a possibility that if Twitter is faced

00:03:42.720 with some sort of legislation that says they have a duty of care to take down information that is

00:03:47.860 so-called you know misinformation or discriminatory that they might just pull out at some point

00:03:52.880 let me ask you about that that arbitrator aspect here because a lot's changed in the internet in the time that

00:04:02.040 section 13 was there originally it was repealed in 2013 to now social media companies are much more powerful

00:04:08.880 we also have a government that I think has been much more emboldened on this idea of reigning in online hate

00:04:14.860 whereas section 13 was really created in response to fax machines if you go back to the to the origin of it

00:04:21.280 so this idea of supercharging it by putting all these requirements on on tech companies I see as

00:04:26.540 being quite problematic but they also seem to think that they had kind of charter proofed that the

00:04:32.060 language with Bill C-36 by by drawing from the Watcott decision I was wondering if you could just give a

00:04:37.120 brief primer on on how that decision framed what free speech and hate speech in this context are

00:04:44.040 yeah so what caught uh attempted to say that there is you know a line over which you cannot cross

00:04:51.580 between uh speech that's acceptable and speech that is hateful and can be constitutionally limited by

00:04:58.920 by the criminal laws and you know what what ends up happening when you try to draw those lines is you

00:05:04.400 just end up using a lot of synonyms so Watclot says you know basically if your speech is inciting

00:05:11.320 you know detestation against a group that's illegal but if you're just offending a group or uh being

00:05:18.840 hurtful towards a group that's not okay so I don't know how any reasonable person can tell the difference

00:05:24.660 between words like you know detestation or you know extreme dislike which is another one that's

00:05:29.940 apparently okay and uh so all that Watcott really clarifies is that there is some line and it's really

00:05:36.660 hard to know where that is um with criminal it's gonna be like the old I know it when I see it uh

00:05:42.440 interpretation on pornography right right right exactly and if if if there's that much subjectivity

00:05:49.340 involved then you're really at the mercy of whoever the decision maker is and let's say there's some you

00:05:54.820 know digital safety czar or ombudsperson as I guess they're now called in the legislation it's going to be

00:06:01.320 up to you know their their tastes and their view about what is um what is hateful and what isn't

00:06:08.000 that's where the problem comes in because these are you know government appointees and uh what they're

00:06:13.000 offended by might be perfectly legitimate speech yeah and and obviously you know people when they

00:06:20.320 have this debate I mean the big problem we run up against is that people have trouble separating their

00:06:24.900 emotional valuation of a particular expression from whether it has merit as a legal form of expression

00:06:32.580 and again we do not have a right to be comfortable we do not have a right to not be offended or bothered

00:06:37.460 or perturbed now I'm the one using all the synonyms and I think this case in PEI is a great example of this

00:06:42.960 you have a counselor there in in Murray Harbor a very very small community I don't even think it's at

00:06:47.600 town level I think it's an even lower threshold than town and my colleague Lindsay Shepard wrote about

00:06:53.120 John Robinson a while Robertson a while ago he put up a sign on his own property and the sign we have

00:07:00.180 a picture there uh truth mass grave hoax reconciliation redeem Sir John A's integrity I think it's pretty

00:07:07.760 clear what he's referring to on on both counts and you may drive by that and say I agree I disagree

00:07:12.820 doesn't really matter he's now facing potential removal as a counselor over this so explain what's

00:07:19.380 going on here yeah so so John put up this sign back in September and this is a sign it's one of

00:07:26.100 those signs where you can you know change the plastic letters I think you just showed it um that you see

00:07:31.120 outside of you know churches or sometimes you know town halls and he uses this just to spread his

00:07:38.640 messages often it's things like you know happy uh congratulations to the newlywed couple or you know

00:07:45.840 there's some festival coming up and he wants to advertise it but uh occasionally he uses it for

00:07:50.580 more political speech and uh in this case he put up this sign because he's angry about the idea that

00:07:58.540 um in 2021 uh everybody was sort of led to believe that these mass graves had been located at Indian

00:08:06.000 residential schools when in fact what was most likely found were were cemeteries with unmarked graves

00:08:12.060 obviously very sad what happened at residential schools but he he's he's he's annoyed that this

00:08:18.620 narrative sort of persists so um obviously this is his private speech on his private property but his

00:08:25.020 fellow village counselors didn't like this message so they went after him using their code of conduct

00:08:31.360 bylaw and you know municipalities across Canada have these codes of conduct they're they're they're meant

00:08:38.080 to you know prevent city counselors town counselors from doing things like harassing staff members or

00:08:45.200 embezzling money or you know having things that look like conflicts of interest but in recent years we've

00:08:51.860 seen them start going after fellow counselors for their political speech and that's what happened to

00:08:57.260 john here you know they did a big investigation they found that he breached sections of the code of

00:09:03.360 conduct related to ethical behavior that related to you know discrimination and harassment and

00:09:09.540 arranging your uh private affairs in a way that inspires public trust all of which is uh irrelevant

00:09:16.520 to the sign because it was not nothing to do with his actual job as a village counselor it was just a sign

00:09:22.840 on his property and it's political speech which is the most protected type of speech so you would think

00:09:28.420 that they would not be able to sanction him for for his sign and we're pretty confident that they

00:09:34.160 violated the the constitutional guarantee for free speech by by uh sanctioning for him they gave him a

00:09:40.780 500 fine suspended him for six months and demanded this forced apology to to them and to the indigenous 1.00

00:09:48.940 peoples and uh he refused to do that so now the minister has launched an inquiry where one of the

00:09:54.980 possibilities uh as a at the end of that is is his removal so just you know an official uh on town

00:10:03.640 council being removed for his political speech and they haven't really flinched or uh blinked in this

00:10:10.600 since he he's you know secured legal representation through through you in the ccf so we uh we haven't

00:10:16.960 heard anything from the town they haven't flinched um what i can say is uh well the town very very

00:10:23.760 obviously messed up this investigation and this whole process in many ways uh but the minister uh

00:10:30.500 in in a sense may have flinched because he issued an order in december that said you know you have two

00:10:37.880 days to accept these sanctions including the apology or resign and uh john robertson he didn't he didn't do

00:10:46.020 that at the time you know he was sort of looking for legal counsel and he was uh on vacation so he he but

00:10:52.880 he didn't do that at the time in any event and the minister i think subsequently realized that

00:10:57.840 um there may have been some problems with this investigation and the the sanctions uh the way

00:11:03.800 that things went about so he rescinded that order and he uh issued a new order for an inquiry so now

00:11:09.740 he's going to sort of redo all of the this investigation about whether john's sign somehow

00:11:15.620 breaches this code of conduct which i i think it pretty clearly does not

00:11:19.560 the thing that i find so incredibly incredibly concerning about though i found a lot of it

00:11:25.760 concerning but he's expressing a political opinion he is an elected politician now in this particular

00:11:30.680 case i don't think it's a position that murray harbor pei necessarily has to deal with at the

00:11:37.040 local level it may conceivably i again i don't know if it's near any indigenous communities but the fact

00:11:42.980 of the matter is that when you have a colleagues that are weaponizing this code of conduct process for

00:11:48.000 people expressing political opinions they're effectively overriding the democratic process

00:11:52.600 they're overriding the fact that constituents have the opportunity to vote politicians in or

00:11:56.820 out based in part on their political beliefs

00:11:59.340 yeah that's that's exactly right so uh it's it's it's very crazy here that the minister could remove

00:12:07.340 this person for for his speech i mean that's up to the voters and you know there's there's this idea

00:12:13.460 that uh his speech was very controversial and unpopular and that seems to be the case in public

00:12:20.540 you know that the town did get a lot of emails and things like that that's were from people that said

00:12:25.320 he's a residential school denialist which is absolutely not the case um or that he's he's uh

00:12:31.780 you know harming reconciliation but there is also a silent majority out there that thinks you know

00:12:37.600 what we were misled by the media in uh 2021 or at least by by some parts of the media and uh they

00:12:46.040 might they're they're on john's team you know they're sending donations to the ccf they're signing

00:12:51.300 the petition on our website and they're emailing john to say you know we're with you just because

00:12:55.840 you don't hear them publicly all that much doesn't mean that they're not out there so um we we should

00:13:01.980 at the end of the day we need to wait till uh the next election and then it will be up to the voters

00:13:06.660 if john runs whether to re-elect him all right well and he got to watch has to watch if he promotes

00:13:12.780 himself on his sign he may get slapped down again there uh josh to has with the canadian constitution

00:13:17.780 foundation also one of the hosts of not reserving judgment i think you have a new episode today right

00:13:22.460 it's uh wednesdays we do we do and we're talking about this online harm stuff so you can uh hear more

00:13:28.000 of what we have to think about that and uh some of the rumors we've heard so all right perfect

00:13:32.660 check it out lawyers peddling in rumors that's uh that's that's very edgy in your world all right

00:13:37.680 josh thanks very much really good to talk to you again great thanks andrew thanks for listening

00:13:41.400 to the andrew lawton show support the program by donating to true north at www.tnc.news

Juno News - February 25, 2024

P.E.I. councillor faces removal for sharing the wrong opinion

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