Juno News - February 25, 2024
P.E.I. councillor faces removal for sharing the wrong opinion
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Summary
In this episode, I'm joined by Josh Dehaas, a lawyer with the Canadian Constitution Foundation and host of the popular podcast "The Free Speech Project" to talk about the ongoing free speech debate in Prince Edward Island, where the government is pushing a bill that could lead to harsh penalties for online hate speech.
Transcript
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I want to welcome into the show Josh Dehaz who is a lawyer with the Canadian Constitution
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Foundation where he is also a preeminent podcast host a competitor but he does great work over
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there alongside Christine Van Gein and Joanna Barron. Josh good to have you back on the show
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thanks for coming on. Good to be here. So I want to talk about this free speech fight in Prince
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Edward Island in a few moments but but just on the online harm stuff obviously we have to wait for
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the the text of the bill to come out but we know from the first version of it and what the government
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has said in public messaging what it's likely to look like here. This is going to be just a feeding
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frenzy for civil liberties lawyers based on like any interpretation of what they're coming out with
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right? Yeah well if if they come if they come out with a bill that brings back something like
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section 13 you know if anything that looks like what they proposed under bill c36 they're going to
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have all kinds of challenges because you know it's just would not be constitutional to do something
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that extreme to have you know $20,000 fines for things that you you say on the internet that
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somebody finds offensive and so we really hope that that's not what they come up with but I guess
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we'll have to wait and see for the details in terms of this idea of an ombudsman or I think we're
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supposed to say ombudsperson so just yeah it's actually hate speech if you say ombudsman it could
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be under this new bill so I'll just go with the ombudsperson to be careful here that raises all kinds
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of other potential free speech issues here you know if they go with 24-hour takedowns that is just
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going to lead Facebook and other you know other internet service providers to take down anything
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that could put them at risk or make them liable so that would be a huge free speech issue too that
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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
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TV sometimes but the the one thing that comes out here is that under c18 the liberal government put
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this regulation risk requirement on on companies like Facebook and Google and said you guys have
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to pay news companies if you're going to have news on your platform so Facebook says all right it's
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not worth the hassle we're just going to ban news we looked into it we got a legal opinion because we
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were wondering if we could sue the government and every lawyer we talked to said well no because
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Facebook made the decision I mean they may have done it in response to legislation but your issues
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with Facebook which has I would concede no legal obligation to allow anyone to use its platform
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you apply that here and I worry that the same thing applies where Facebook will just develop a
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broad terms of service to encompass the law but if Facebook's zapping your content where's your
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recourse if you've been censored do you even have any? Yeah that would be that that's that's the issue
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here so I think you could still mount some sort of challenge but it would be very difficult to do
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of Facebook itself wasn't getting involved in in that sort of charter challenge the other the other
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concern I would have is that companies like Facebook might just leave Canada and you know people laugh at
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that but right now you have similar sorts of legislation in the European Union and they're they're they're
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telling Twitter all the time look if you don't comply with the with our requirements and you know get rid of
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more of what we consider misinformation then we might kick Twitter out of Europe and it Canada's a lot
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smaller Twitter probably cares a lot less about us but there's a possibility that if Twitter is faced
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with some sort of legislation that says they have a duty of care to take down information that is
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so-called you know misinformation or discriminatory that they might just pull out at some point
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let me ask you about that that arbitrator aspect here because a lot's changed in the internet in the time that
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section 13 was there originally it was repealed in 2013 to now social media companies are much more powerful
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we also have a government that I think has been much more emboldened on this idea of reigning in online hate
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whereas section 13 was really created in response to fax machines if you go back to the to the origin of it
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so this idea of supercharging it by putting all these requirements on on tech companies I see as
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being quite problematic but they also seem to think that they had kind of charter proofed that the
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language with Bill C-36 by by drawing from the Watcott decision I was wondering if you could just give a
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brief primer on on how that decision framed what free speech and hate speech in this context are
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yeah so what caught uh attempted to say that there is you know a line over which you cannot cross
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between uh speech that's acceptable and speech that is hateful and can be constitutionally limited by
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by the criminal laws and you know what what ends up happening when you try to draw those lines is you
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just end up using a lot of synonyms so Watclot says you know basically if your speech is inciting
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you know detestation against a group that's illegal but if you're just offending a group or uh being
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hurtful towards a group that's not okay so I don't know how any reasonable person can tell the difference
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between words like you know detestation or you know extreme dislike which is another one that's
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apparently okay and uh so all that Watcott really clarifies is that there is some line and it's really
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hard to know where that is um with criminal it's gonna be like the old I know it when I see it uh
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interpretation on pornography right right right exactly and if if if there's that much subjectivity
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involved then you're really at the mercy of whoever the decision maker is and let's say there's some you
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know digital safety czar or ombudsperson as I guess they're now called in the legislation it's going to be
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up to you know their their tastes and their view about what is um what is hateful and what isn't
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that's where the problem comes in because these are you know government appointees and uh what they're
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offended by might be perfectly legitimate speech yeah and and obviously you know people when they
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have this debate I mean the big problem we run up against is that people have trouble separating their
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emotional valuation of a particular expression from whether it has merit as a legal form of expression
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and again we do not have a right to be comfortable we do not have a right to not be offended or bothered
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or perturbed now I'm the one using all the synonyms and I think this case in PEI is a great example of this
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you have a counselor there in in Murray Harbor a very very small community I don't even think it's at
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town level I think it's an even lower threshold than town and my colleague Lindsay Shepard wrote about
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John Robinson a while Robertson a while ago he put up a sign on his own property and the sign we have
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a picture there uh truth mass grave hoax reconciliation redeem Sir John A's integrity I think it's pretty
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clear what he's referring to on on both counts and you may drive by that and say I agree I disagree
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doesn't really matter he's now facing potential removal as a counselor over this so explain what's
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going on here yeah so so John put up this sign back in September and this is a sign it's one of
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those signs where you can you know change the plastic letters I think you just showed it um that you see
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outside of you know churches or sometimes you know town halls and he uses this just to spread his
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messages often it's things like you know happy uh congratulations to the newlywed couple or you know
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there's some festival coming up and he wants to advertise it but uh occasionally he uses it for
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more political speech and uh in this case he put up this sign because he's angry about the idea that
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um in 2021 uh everybody was sort of led to believe that these mass graves had been located at Indian
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residential schools when in fact what was most likely found were were cemeteries with unmarked graves
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obviously very sad what happened at residential schools but he he's he's he's annoyed that this
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narrative sort of persists so um obviously this is his private speech on his private property but his
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fellow village counselors didn't like this message so they went after him using their code of conduct
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bylaw and you know municipalities across Canada have these codes of conduct they're they're they're meant
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to you know prevent city counselors town counselors from doing things like harassing staff members or
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embezzling money or you know having things that look like conflicts of interest but in recent years we've
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seen them start going after fellow counselors for their political speech and that's what happened to
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john here you know they did a big investigation they found that he breached sections of the code of
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conduct related to ethical behavior that related to you know discrimination and harassment and
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arranging your uh private affairs in a way that inspires public trust all of which is uh irrelevant
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to the sign because it was not nothing to do with his actual job as a village counselor it was just a sign
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on his property and it's political speech which is the most protected type of speech so you would think
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that they would not be able to sanction him for for his sign and we're pretty confident that they
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violated the the constitutional guarantee for free speech by by uh sanctioning for him they gave him a
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500 fine suspended him for six months and demanded this forced apology to to them and to the indigenous
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peoples and uh he refused to do that so now the minister has launched an inquiry where one of the
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possibilities uh as a at the end of that is is his removal so just you know an official uh on town
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council being removed for his political speech and they haven't really flinched or uh blinked in this
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since he he's you know secured legal representation through through you in the ccf so we uh we haven't
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heard anything from the town they haven't flinched um what i can say is uh well the town very very
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obviously messed up this investigation and this whole process in many ways uh but the minister uh
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in in a sense may have flinched because he issued an order in december that said you know you have two
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days to accept these sanctions including the apology or resign and uh john robertson he didn't he didn't do
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that at the time you know he was sort of looking for legal counsel and he was uh on vacation so he he but
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he didn't do that at the time in any event and the minister i think subsequently realized that
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um there may have been some problems with this investigation and the the sanctions uh the way
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that things went about so he rescinded that order and he uh issued a new order for an inquiry so now
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he's going to sort of redo all of the this investigation about whether john's sign somehow
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breaches this code of conduct which i i think it pretty clearly does not
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the thing that i find so incredibly incredibly concerning about though i found a lot of it
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concerning but he's expressing a political opinion he is an elected politician now in this particular
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case i don't think it's a position that murray harbor pei necessarily has to deal with at the
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local level it may conceivably i again i don't know if it's near any indigenous communities but the fact
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of the matter is that when you have a colleagues that are weaponizing this code of conduct process for
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people expressing political opinions they're effectively overriding the democratic process
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they're overriding the fact that constituents have the opportunity to vote politicians in or
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yeah that's that's exactly right so uh it's it's it's very crazy here that the minister could remove
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this person for for his speech i mean that's up to the voters and you know there's there's this idea
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that uh his speech was very controversial and unpopular and that seems to be the case in public
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you know that the town did get a lot of emails and things like that that's were from people that said
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he's a residential school denialist which is absolutely not the case um or that he's he's uh
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you know harming reconciliation but there is also a silent majority out there that thinks you know
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what we were misled by the media in uh 2021 or at least by by some parts of the media and uh they
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might they're they're on john's team you know they're sending donations to the ccf they're signing
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the petition on our website and they're emailing john to say you know we're with you just because
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you don't hear them publicly all that much doesn't mean that they're not out there so um we we should
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at the end of the day we need to wait till uh the next election and then it will be up to the voters
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if john runs whether to re-elect him all right well and he got to watch has to watch if he promotes
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himself on his sign he may get slapped down again there uh josh to has with the canadian constitution
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foundation also one of the hosts of not reserving judgment i think you have a new episode today right
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it's uh wednesdays we do we do and we're talking about this online harm stuff so you can uh hear more
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of what we have to think about that and uh some of the rumors we've heard so all right perfect
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check it out lawyers peddling in rumors that's uh that's that's very edgy in your world all right
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josh thanks very much really good to talk to you again great 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