Juno News - Trudeau advisor calls concerns over Online Harms bill “rage farming”

00:00:00.000 you're tuned in to the andrew lawton show

00:00:05.920 let's talk about that toronto star p let's put that up again sean have you heard the one about

00:00:13.180 justin trudeau attacking your free speech online trust me that's just rage farming by supriya

00:00:18.180 davetti contributor okay now what's unique about supriya davetti she's a lawyer she's a former talk

00:00:26.180 radio host but you scroll way down in the bottom of the article there you get the key part here

00:00:33.040 supriya davetti is a senior advisor to prime minister justin trudeau and was a former columnist

00:00:39.840 for the toronto star ah she is a trudeau staffer she left her career she was working i believe at

00:00:48.320 mcgillian university in one of their uh digital media centers but she left that to go and work

00:00:52.720 for justin trudeau okay that's fine i don't know why that's like boarding the titanic when you're

00:00:58.520 about three quarters over the atlantic it's already hit the iceberg but hasn't gone down yet and you're

00:01:02.820 like well that the food on that ship looks great so let me get on board but nevertheless supriya

00:01:07.300 decided she wanted to go on to justin trudeau's team she wanted to be a part of the prime minister's

00:01:11.720 office uh she is a senior advisor nothing wrong with that our system relies on people advising 0.94

00:01:17.700 the government but she is also now the spin doctor of this piece of legislation which i find very very

00:01:24.600 strange political staffers are typically not the ones putting their bylines on columns political

00:01:30.660 staffers are not typically the ones doing interviews to sell or champion legislation i mean my thinking and

00:01:36.320 i mean no disrespect to supriya on this was there no liberal member of parliament that wanted to put

00:01:41.560 their name on a defense of the online harms act in the toronto star was the justice minister who is

00:01:47.980 selling this bill perhaps unavailable or uninterested in doing this but she talks about criticism of this

00:01:55.020 bill being rage farming rage farming that's the term she uses rage farming which is basically just

00:02:02.180 trying to gin up hatred online she talks about this as though there are no legitimate critiques or

00:02:09.180 criticisms of the bill because she's defending i mean she's appealing to authority here she's defending

00:02:14.840 the bill when we talk about the hate speech stuff it prohibits speech which is fomenting or likely to

00:02:20.440 foment detestation or vilification the language comes from a supreme court decision but that is not

00:02:27.740 the defense that she and other defenders of this bill seem to think because the supreme court left a very

00:02:33.100 confusing decision there that doesn't actually give much in the way of clarity when you want to see how a

00:02:38.660 human rights tribunal is going to adapt that decision to individual expressions of speech

00:02:44.260 but let's get into where i believe she is factually wrong again i am not a lawyer i cover legal issues i

00:02:53.500 interview a lot of lawyers but i am not a lawyer so i was fully prepared to admit that i might have been

00:02:59.260 misreading something or i might have been getting something wrong the more feedback has come from other sources

00:03:04.540 the more i am convinced that is not in fact the case because supriya said this on twitter after one

00:03:12.380 user said the bill threatens life in jail over nasty comments to politicians to betty responded by saying

00:03:18.560 that's not what the bill does a max of life imprisonment for hate has to accompany an underlying

00:03:25.380 act that is also punishable by max life imprisonment so if you attempted to murder someone on the basis of

00:03:30.740 their race religion sexual orientation etc so what is at stake here is the amendment to the criminal

00:03:36.300 code that the online harms act puts forward which says if a criminal offense is motivated by hate

00:03:43.680 that criminal offense could carry oh oh you gave it away sean you gave it away no no take that away

00:03:48.880 take that away yeah okay i i that that was like i was gonna like just bombard people with that at the

00:03:53.460 end to make the point dramatically it's a little less dramatic now but we'll work on it

00:03:56.480 the bill says uh that you know if you add an offense it uh or if you add hate motivation to

00:04:02.920 an offense it carries a life sentence now supriya was very clear that no no no this will only apply

00:04:10.760 to things that already have a life sentence now she also criticized andrew coin making the same

00:04:16.300 argument i've made on this on the show he made it in a globe and mail column supriya said this about

00:04:21.300 andrew coin's contributions to the matter probably unhelpful to the discourse when our national

00:04:26.340 newspaper lets columnists just make all sorts of stuff up about the bill coin is demonstrably wrong

00:04:34.020 here so that is again her saying that if you make the claim that this bill could theoretically put a

00:04:41.460 life sentence on someone who vandalizes the side of a mosque or the side of a synagogue again wrong i'm not

00:04:48.160 defending the act that that could carry a life sentence now we've talked about this on the show

00:04:52.700 judges are unlikely to give a life sentence to someone who does that but the point is that

00:04:57.580 the criminal code will if this bill passes make that possible critics have said including me that is my

00:05:04.880 reading of the bill supriya says in her point that is just wrong now is time sean for the dramatic

00:05:12.360 reveal let's consult with the legislation everyone who commits an offense under this act this act refers

00:05:20.440 to the criminal code or any other act of parliament if the commission of the offense is motivated by

00:05:26.840 hatred based on race national or ethnic origin language color religion sex age mental or physical disability

00:05:32.920 sexual orientation or gender identity or expression is guilty of an indictable offense and liable to imprisonment for

00:05:40.360 life if you commit an offense that carries theoretically in a sentence a sentence of less than two years or

00:05:46.760 not even a jail sentence this bill says that that will be if motivated by hate an indictable offense

00:05:54.760 which means you're talking about a prison term of two years or more up to life in prison that is what

00:06:00.200 the legislation says now i very politely pointed this out to supriya and again i i put my i loaded my

00:06:07.000 tweet up with caveats because i said i am not a lawyer here i could be wrong if i'm wrong show me

00:06:14.200 and i just said please provide a citation this was her response to me she says it's a more than fair

00:06:21.160 question the answer is that you and others are reading the legislation in complete isolation from

00:06:26.280 the binding principles of common law that apply to sentencing and bind sentencing judges not to mention section

00:06:32.680 718 of the criminal code which she shared a screenshot to which basically says sentences must be

00:06:37.400 proportionate but no one is talking here about proportionality we're talking about does this bill

00:06:44.120 fundamentally alter the maximum permissible sentence based on motivation the legislation says yes supriya

00:06:51.800 is saying no she says that we are actually not allowing this to change anything that doesn't already have a

00:07:00.600 life sentence now that raises the obvious question which i put to her because we're having a very civil

00:07:05.160 exchange on x and i said okay well what's the point of it then what's the point this was her response

00:07:11.480 she says here the honest answer is that it explicitly denounces hateful conduct the standalone

00:07:17.400 hate crime provision will make it much easier for law enforcement to track hate crimes across jurisdictions

00:07:22.520 because right now when it's only considered an aggravating factor at sentencing it's very inefficient

00:07:27.800 i've never heard this argument champion before it may or may not be correct i don't know but it

00:07:32.840 doesn't fundamentally change that this law is being misrepresented by the prime minister well again i

00:07:39.880 don't know if the pmo sent her out to write that op-ed but by someone who works for the pmo and has

00:07:44.360 written an op-ed trying to defend this bill it's just fundamentally wrong now other people who are far more

00:07:50.360 learned who are themselves lawyers have weighed in and i mercifully have agreed with the the plain text

00:07:56.360 reading that i had of the bill here howard england wrote that uh andrew coin was right it's exactly

00:08:03.000 what it does and he just says your response is trust judges yeah and that's basically the pmo's

00:08:08.360 response here they're just saying well judges aren't going to give a life sentence for something minor

00:08:12.040 the point is that this will override the the current provisions on this and we'll give them that

00:08:19.240 option i want to welcome into the show christine van gein who is the litigation director of the canadian

00:08:24.600 constitution foundation we've talked about some of these concerns on the show in the past always

00:08:29.880 good to talk to you christine all right who's right here sapria or uh yours truly uh you're right andrew

00:08:37.000 and so are all of the lawyers who are on twitter uh with sapria i guess explaining the law to lawyers

00:08:47.160 as far as i know she's is she a lawyer i don't i don't know if she's a member of the bar i believe she

00:08:51.560 was a lawyer at some point i just went to law school i i don't know for sure though okay so i

00:08:56.280 think i take that back but um i i have something that i think will entertain you which is i mean i

00:09:03.800 read this this morning and and was quite irritated i wrote to the toronto star saying that if they're

00:09:10.200 going to publish uh supria who is a a government mouthpiece i mean she's yeah literally i don't even

00:09:17.560 mean that in a way that we often talk about some left-wing columnists like she's literally

00:09:20.760 yes she works for the prime minister um if they're going to publish that then they should

00:09:26.920 and allow the critics of this bill who are careful and thoughtful in their criticism then they should

00:09:31.800 allow a rebuttal uh and and they've agreed and they're gonna they're running my rebuttal today i've

00:09:36.120 written one uh and and all credit to the star for agreeing to run a rebuttal to supria's piece so

00:09:42.840 i'm excited that they're gonna run it but i'm a little worried that she's gonna her meltdown will 1.00

00:09:47.880 continue and i will now be part of the meltdown but i mean i think someone needs to set the record

00:09:53.960 straight that criticism of this bill is not rage farming it is not bad faith i think the government

00:10:01.640 would do well to remember that freedom of expression in canada and is a fundamental right it is actually a

00:10:10.920 precursor to peace and security and democracy it is not a threat to our society it's what makes our

00:10:18.040 society possible and the government should instead of attacking critics of the bill which include

00:10:24.200 academics from across the political spectrum the more than 6 000 people who have written to the their

00:10:31.880 members of parliament through the canadian constitution foundation's online platform expressing

00:10:37.480 their concerns with the bill the canadian icons like margaret atwood who have expressed concerns

00:10:44.520 with this piece of legislation as well as lawyers and academics who actually will be the ones in

00:10:51.080 engaged with applying this law all of that criticism is something that the government should

00:10:55.640 be listening to not attacking and saying we're um rage farming i mean no farming is necessary people

00:11:03.160 are angry uh and and it kind of springs up naturally like i don't need any fertilizer for this sean sean

00:11:11.320 sean can you put up tweet four for a second again this is the the common law the principles of

00:11:16.120 common law one from supria i want to get your take on this christine because one of the points that

00:11:22.120 supria raises here uh she said no no it's the other one the uh the principles of common law one she says here uh no no

00:11:30.200 we'll keep going we'll get there eventually uh there we go uh the honest answer is no no sorry go back

00:11:36.040 to the other one this is the great thing about live media uh so she says here that uh basically that 0.95

00:11:43.400 you can't look at the legislation as a standard or a separate from principles of common law uh is

00:11:50.120 basically the thing we don't have the tweet but that's fine uh you can't look at it separate from

00:11:53.640 common law principles and as i understand it and please correct me if i'm wrong here because as i you

00:11:58.360 know caveat it up the wazoo i'm not a lawyer but statute kind of overrides common law does it not

00:12:04.200 so i do think that supria has a point here in saying that um judges will apply principles of

00:12:12.600 proportionality that are already in uh the criminal code uh section 718.1 of the criminal code deals with

00:12:21.160 sentencing and there's proportionality sentences there's also common law application of sentencing

00:12:27.480 um that you wouldn't have a disproportionate sentence but i think that that's true that the

00:12:33.880 legislation does make the things that we're all saying possible so um it certainly would be possible

00:12:42.440 that if you peg on a hate uh as the motivation to any of these offenses that the the government

00:12:51.080 the crown the prosecution can argue for life they're unlikely to get it it will relate to the

00:12:57.080 the underlying offense but it's certainly possible for them to argue it and i think that that's a

00:13:04.280 really important point because what we're not talking we're not the risk isn't just in whether

00:13:12.200 a court will sentence someone who engages in for example mischief motivated by hate or vandalism

00:13:19.560 motivated motivated by hate it's it seems unlikely that the courts would give them life imprisonment

00:13:27.480 but what this legislation does is it allows the crown to add the hate motivation onto any offense

00:13:38.120 including a minor offense like mischief or vandalism and that gives the prosecution the power to threaten

00:13:46.200 far far far far higher penalties for minor offenses um that they can then use to pressure a defendant to

00:13:53.640 plead out uh including in cases where a defendant shouldn't plead out because perhaps they are poorly

00:14:00.040 represented the hate threshold isn't met um this is most likely actually to happen to people who

00:14:09.080 have are marginalized in our society who are less able to afford a judge so it's actually going to end up

00:14:15.000 hurting the most marginalized people in society and look i'm not saying that vandalism or mischief if

00:14:22.840 it's motivated by hatred and i think some classic examples are the desecration of cemeteries or spray

00:14:29.960 painting offensive symbols onto religious places of worship i mean those things those the people who commit

00:14:36.840 those offenses should have a an intervention and a criminal prosecution could be a part of that but allowing the

00:14:43.240 the crown the the prosecution to hold this threat of huge penalties by tying the prosecution to a hate offense

00:14:56.280 really that's the on the ground application of this law that's really dangerous someone on twitter also

00:15:01.880 pointed out to me that by tying uh adding a hate offense if the person is uh has a is an immigrant has 0.73

00:15:12.200 immigrants um some type of uh permanent residency if it could be used against them in a deportation proceeding

00:15:20.440 even if the charges are not made out but by um having a minor offense moved into a more serious offense

00:15:27.400 category so there's all kinds of spillover effects that supriya is frankly ignoring and 0.98

00:15:33.080 the good faith critics of this piece of legislation are pointing out so i'm glad the stars running my rebuttal

00:15:38.360 because i have a lot to say about it no so am i and yeah and i think your point about the it's easy

00:15:43.880 to focus on judges and again an argument that hinges on trust judges is not in my view the most compelling

00:15:49.960 one but but even if you do is article is trust me trust well yeah trust governor yeah trust the trust

00:15:56.520 the pmo that's the but but you are right too i mean when you talk about that category that categorization

00:16:02.600 of offenses it isn't just about the possibility of a life sentence it's also about taking things that would

00:16:07.480 normally be dispatched with with a fine and putting them into indictable offense territory yeah and it's

00:16:14.120 the threat it's a threat even if the person um perhaps they they have not made out the threshold for

00:16:21.720 hate speech um that they have the threat now to plead out because this the there's this thing hanging

00:16:30.520 over their head that there's a much more dangerous offense that they could be convicted of uh that comes

00:16:36.280 with a much more serious penalty so i mean sapria's article makes a huge a huge number a lot of these

00:16:42.040 are just straw man arguments right throughout her article one of the big things that she focuses on

00:16:47.960 is this criticism a lot of us have of peace bonds and she says that uh you know peace bonds the critics

00:16:56.840 of the peace bond provision is that members of the public with the consent of the attorney general can

00:17:02.200 seek a peace bond to put restraints on people for future speech so if there's reasonable grounds to

00:17:09.960 believe that a person will commit a hate engage in hate speech in the future a court can order um all

00:17:18.200 kinds of restraints on speech and including things related to access of the to the internet they can even

00:17:24.760 impose house arrest or electronic monitoring like an ankle bracelet and people have raised a lot of

00:17:30.600 concerns about this um for for obvious reasons and sapria says that critics of the peace bonds are

00:17:41.960 misguided that we're rage farming because peace bonds are not she blames the right-wing online 0.99

00:17:48.760 ecosystem first and foremost i think that's me i think that's me i i believe i'm part of that because

00:17:55.240 she mentions people invoke minority report and i literally did that like three days ago so i think

00:18:00.360 i might be obliquely or directly in the crosshairs on this one i mean the the reality is that no one

00:18:07.720 is no serious critic of this bill is suggesting that the liberal government invented peace bonds in

00:18:13.480 this piece of legislation we know that they exist the critics including us um are saying that

00:18:20.440 the problem is a peace bond for future speech because that in itself is inherently speculative

00:18:25.960 and in her article she compares um these peace bonds for future hate speech with peace bonds for

00:18:33.400 shocking or terrorism and i just don't think that this helps her argument at all because terrorism you

00:18:41.640 know courts can be a lot more certain about the risks involved it's really obvious if someone has bought

00:18:47.800 materials to buy a bomb or build a bomb and there's also a lot more certainty about what terrorism looks

00:18:55.160 like whereas with hate speech the court needs to speculate and get into the mind of a person about what they

00:19:03.000 may say in the future and whether it meets the threshold for hate speech and that threshold which

00:19:09.800 comes from a supreme court decision in what caught is a really squishy speculative and subjective definition

00:19:19.320 so hate is defined as detestation and vilification and i mean frankly these are these are synonyms for

00:19:27.320 hate so hate is defined by reference to itself it's not especially hate helpful and i think when you've

00:19:33.880 empowered the public to seek peace bonds against fellow citizens using a definition they're unlikely

00:19:40.920 to understand you really are creating a chill on speech and this is what the critics of the bill

00:19:47.240 are saying uh we are not saying that peace bond isn't a peace bond is a new creation by justin trudeau

00:19:54.280 we're saying this is a bad application of a peace bond and there are serious risks associated with it

00:19:59.560 all right we're going to attempt to do a a tweet again i maybe maybe we should just avoid it here

00:20:05.240 but uh this is uh a supriya tweet uh starts with the honest answer is that it explicitly denounces

00:20:10.600 so this is in response to me saying if your claim there we go if your claim is that uh this will only

00:20:16.520 apply to things that already have a life sentence what's the point of it uh she says that it will make

00:20:21.320 it easier for law enforcement to track hate crimes across jurisdictions because it's inefficient when

00:20:27.320 it's only considered an aggravating factor i'm having trouble following the argument here but i was

00:20:31.800 wondering if you could weigh in on this at all i have no idea what she's talking about um i think

00:20:38.280 i think the goal that the government has um is they want more prosecutions for hate offenses

00:20:45.080 and this is the way to achieve it so right now it is treated as a aggravating factor but it also there

00:20:51.400 also are stand alone hate offenses already in the criminal code right there's provisions about uh

00:20:58.760 public incitement of hatred and willfully promoting hatred and they're not especially on the public

00:21:05.720 incitement they're not there have not been a lot of prosecutions because the threshold is really high

00:21:10.440 and it's it's supposed to be high i mean we're talking about criminalizing speech here which is

00:21:15.320 something that's fundamental to our functioning as a democracy uh so i don't really i think what she

00:21:22.920 what the government wants is more prosecutions for hate offenses this is their way of attempting

00:21:27.480 it but i don't understand her her justification here um i i just don't know what she's referring 0.88

00:21:33.240 okay no that that helps me i wanted i thought i was the moron for not being able to figure it out but

00:21:38.120 let me just ask you about the problems with this because the government you know they always do the oh 0.56

00:21:43.720 yes well we'll talk about this in committee but for the most part they aren't really admitting that

00:21:47.960 they've got anything wrong here they've had years this was first put forward or a version of it in 2021

00:21:54.040 shortly before the election they've been promising it uh basically since that election they were first

00:21:58.600 promising it within the first 100 days uh it's now uh four years well three years after it was first

00:22:04.760 tabled so do you think this is sloppy or do you think everything in there is very deliberate and that's

00:22:10.040 exactly what they wanted i think that there is zero consideration for how this will actually be

00:22:18.600 applied on the ground and i i think andrew you should interview some criminal defense lawyers to talk

00:22:24.840 about their concerns with the law because they're the ones who are going to actually be representing

00:22:30.520 people who are now going to be facing this you know sledgehammer from prosecutors to increase the

00:22:38.680 severity or the potential range of sentences for otherwise minor offenses supria says this is

00:22:45.080 something that we don't need to worry about perhaps the government hadn't thought about how this law

00:22:51.080 would be applied on the ground because they're you know bureaucrats including in in justice in the 1.00

00:22:56.680 justice department they're not the ones who actually work and engage with you know people who get

00:23:03.880 charged with crimes so they might not really understand how this could play out if you give

00:23:09.480 the prosecutors this massive tool yeah very well said look forward to your response op-ed in the

00:23:16.440 toronto star not written by someone from the prime minister's office blissfully uh christine van

00:23:21.400 gein litigation director at the canadian constitution foundation always a pleasure have a great easter weekend

00:23:26.760 thank you thanks for listening to the andrew lawton show support the program by donating to true north

00:23:32.280 at www.tnc.news

Juno News - April 01, 2024

Trudeau advisor calls concerns over Online Harms bill “rage farming”

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