In the wake of the Supreme Court ruling against Elon Musk, a group of Canadian pastor and freedom fighter Arthur Pavlowski is fighting back. He says he's been wronged by the ruling, and that it's time to rise up and start roaring.
00:11:11.520I know that sounds like a basic question, but we should just get that right before we proceed.
00:11:15.600Yeah, so exactly as you said, it's not a retrial, but it's on the appellant to identify where there was errors.
00:11:23.300Usually in law, that's the most common or the easiest to present.
00:11:28.340There can be errors of fact, but those are very difficult to have overturned or mixed fact and law.
00:11:33.580But the appeal is to identify specific errors that can be overturned.
00:11:38.600There's a case out of Supreme Court of Canada, Hooson and Nicolason, that set out when errors can be overturned and on what basis they can be overturned.
00:11:46.480And so there really has to be an error that is appealable and can be overturned by the Court of Appeal in order to proceed on an appeal.
00:11:53.820Now, and I want to make one more clarification.
00:12:10.760There's different standards of review, right?
00:12:12.740Some are, you know, was a judge patently wrong, like just absurd, which is a very, he has to get it super duper wrong.
00:12:22.900Others is sort of, what would the standard be for overturning a judge?
00:12:28.320Because you don't want to, you want to allow judges to have different points of view.
00:12:33.200And there is some gray area when you have clashing values.
00:12:37.440What would be the legal standard to overturn a trial judge who heard the whole case?
00:12:44.720What would these three appeal judges have to find?
00:12:47.720How bad would the lower court have had to get it?
00:12:50.980So based on the arguments that we were presenting, we argued that specifically a section of the criminal code was misinterpreted and misapplied by the lower court or sections of the criminal code, I should say.
00:13:03.900And so that interpretive exercise, according to at least a court in Dooling, which is one of the cases we cited, is on the basis of correctness.
00:13:13.580That you have to interpret section 430 sub 7 correctly.
00:13:17.700So there's no wiggle room on that one.
00:13:58.960I think they were mentioned enough that I could probably do it.
00:14:02.200But tell me, what was 430 and 429 sections of the criminal code and how did they apply to Arthur's case?
00:14:09.320So section 430 sub 7 says that if you've committed mischief by way of solely communicating information at a place, by attending at a place and communicating information, then that's what section 430 sub 7 says is that that would not be mischief.
00:14:25.580Because communication of communication of information would be exempt or that would provide a defense or the essential elements would not be made out because you have to show something more than communicating information.
00:15:32.740He said there was a quarrel between two neighbors and one neighbor like wrote on his truck, on his own truck, don't blame me for your housing problems and parked it right.
00:15:44.020And and that sort of created a problem for the other homeowner who was trying to sell his house.
00:15:48.660Like it was it was a real feud between two neighbors.
00:15:52.140But weirdly, the police charged the neighbor with sort of the homemade sign.
00:15:58.460And incredibly, he was convicted before going to appeal.
00:16:01.920So, first of all, that's a crazy story.
00:16:04.100But second of all, that, you know, how it's a crime to merely communicate something.
00:16:09.120As Greenspon said in Ottawa, everything we say is communicated for a purpose other than maybe our own diary.
00:16:19.120So surely going to Coutts to talk about religion and politics and freedom and things like that, surely that is permissible communication.
00:16:29.620That's what Greenspon was arguing in Ottawa.
00:16:32.820And it looked like the judges had a lot of time for it.
00:16:35.540How did these arguments go over today?
00:16:42.860You know, we did have a lot of questions about how this analytical framework should go.
00:16:48.740And we're operating in a situation where there there has been no court of appeal to tell us how inciting mischief should be interpreted, what the essential elements are, whether these defenses apply to inciting mischief.
00:17:02.740And we'll see what the court does with it.
00:17:06.320They have time now to sit with it and decide what to do with it.
00:17:10.900I got a real kick out of seeing Willie DeWitt on the bench.
00:17:13.460I'm old enough to remember when he was a boxing champ.
00:17:16.380And then I was at U of A Law School when he started to attend there.
00:17:20.080And it was sort of funny to see this big guy going around in law school because we all thought of him as a boxer.
00:17:25.120And here he is on the Court of Appeal, which is a very senior position.
00:17:28.080I got a kick out of that now that the Crown Prosecution, who was there to say, no, no, don't overturn this judge.
00:17:36.680He said, if we exempt communication from crime, then you'll never be.
00:17:46.820He tried to give the example of, I think, a bank robber saying, hand over your money.
00:17:51.380Now, the judges quickly swatted that down.
00:17:53.680But what do you make of his larger point that if every communication is exempt by reason of the Charter of Rights, that's going to wipe out a whole bunch of criminal law?
00:18:05.920Now, maybe a libertarian would say, good.
00:18:09.600That was a point that the prosecution tried to make several times is warning judge, do not allow free speech to become a defense or that's going to wipe out a lot of criminal sections in the code.
00:18:21.620I thought that was an interesting point, probably a predictable point.
00:18:26.120So Section 430 sub 7 only applies to Section 430.
00:18:30.500And I did make this point in court is that it's got a very narrow application.
00:18:34.900It's not going to wipe out a whole swack of activity that we would otherwise consider criminal.
00:18:40.780It's only going to wipe out that very small and narrow amount where we're talking about mischiefs, right?
00:18:46.680Whether you're a party or a principal of mischief, you're causing mischief, you're inciting mischief, it's only going to capture that mischief.
00:18:53.740It's not going to capture everything else.
00:18:55.720Now, with respect to Section 429 sub 2, legal justification, again, it's got a fairly narrow application, broader than Section 430 sub 7, but a narrower application.
00:19:05.740And so what this court is going to have to really deal with, and I think this is what the court was having a hard time with today, is figuring out what that analytical framework looks like.
00:19:17.660And that's not an easy task for this court to come up with.
00:19:20.300And by analytical framework, you mean how does the court, how does a judge handle this confusing problem?
00:19:27.180Here's a guy saying, no, no, this is my expressive right, but he was encouraging, perhaps, people to do mischief.
00:19:35.400I mean, this is something I see on our streets every day, and I think it goes far beyond mischief.
00:19:39.500I see trespass, I see uttering threats.
00:19:41.480I'm talking about the pro-Hamas street protests.
00:19:45.060I'm shocked by some of the things I say.
00:19:47.420I haven't seen prosecutions of them or jailings of them the way I see it for this Christian pastor here.
00:19:53.900You know, it feels like a two-tier justice, but maybe you're right.
00:19:56.560Maybe the judges need a rule of thumb, like here's a five-step test to follow if someone is claiming that their mischief was political expression.
00:20:05.500Is that what you're saying by legal, analytical framework?
00:20:17.380And just because I'm here, you know, not everybody, you know, it's the, some of what you suggested was, well, there's not other charges being laid against other people who might be engaged in similar behavior.
00:20:30.320I do just want to warn about that, taking that analysis too far, because it's the same analysis as, well, if I speed on deer foot and get caught, but somebody else was speeding on deer foot and they weren't caught, like, should I have less moral culpability?
00:20:45.520We just want the rule of law, and we want the court of appeal to tell us how this, how this should be interpreted, and where we should go from here.
00:20:52.920And to help counsel who are representing accused at trials, and to help trial judges to figure out what does Section 429 sub 2 mean, what does Section 430 sub 7 mean, what are its parameters, how do you apply it, when do you consider it, and that's what we're asking the court to do.
00:21:09.640You know, all this started crazily based on, I think it was a 17-minute video that Arthur himself must have taken, because he posted it to his own Facebook page.
00:21:19.460It was a typical Arthur sermon, rambunctious, energetic, a little bit over the top, talking about freedom in Poland, where he's from originally, using colorful language that is bracing, no doubt about it.
00:21:35.460The idea that a guy goes to give a sermon in the saloon, he drives in, gives a sermon, and he drives, he didn't blockade, he didn't stay down there, there was no place to stay.
00:21:45.140The idea that that can be a crime, prosecuted, and he got a jail sentence out of it, too.
00:22:08.460I'm talking about peaceful resolution, I'm not talking about guns and swords.
00:22:12.780You see, this image, this image, right here, it was the most powerful thing I could ever do.
00:22:20.020And it went viral all over the world, because it showed, simply, me on my knees, on a middle, in the middle of the highway, being taken by SWAT team.
00:22:42.060Versus, let's say, a political commentary that I do on Twitter or video.
00:22:46.000Like, if anyone who's saying, go get them, guys, hold the line, if that is a crime, you know, as Lavrenti Beria of the former Soviet secret police said, show me the man and I'll find you the crime.
00:22:58.920Because if that's the crime, I can get anyone.
00:23:05.180Yeah, and that was the very initial part of our submissions, was, you know, these words, in their context, can give a lot of other meanings, right?
00:23:17.340And doesn't need to require inciting mischief.
00:23:21.420Like, that's not the default analysis when you watch that 19-minute video.
00:23:26.060You know, when I watched it, I thought, well, this is, you know, just calling for a gathering of people, calling for people not to work.
00:23:34.760It's not, obviously, the trial judge thought differently.
00:23:37.900But ultimately, even if it is inciting mischief, Section 430-7, Section 429-2 should hopefully provide some parameters to that to say, okay, well, maybe that is, strictly speaking, inciting mischief.
00:23:51.440But you're expressing yourself, you're not doing anything physically to interfere with the property, physically to interfere with the highway in this case.
00:23:59.880So, you have that defense available to you.
00:24:02.680And that's what we're hoping the Court of Appeal will say eventually.
00:24:06.180You know, September 2024, these events happened in February 2022.
00:24:12.100So, we're two and a half years into it, and we're not even done.
00:24:16.100Like, it wouldn't surprise me if these, I mean, maybe they'll get their ruling out before Christmas.
00:24:19.760But this is a heavy matter that they're obviously engaged in, and they could be drafting this new analytical framework, as you call it.
00:24:44.180I think it's going to take them a while.
00:24:46.180I mean, it's a fool's errand to try and guess when we'll know the result.
00:24:49.360Do you think we'll get it before the new year?
00:24:52.020I mean, of course, I really want the decision to come before the new year.
00:24:55.840I'm very interested from a rule of law perspective as to what the Court of Appeal is going to say about these issues.
00:25:02.320It really, I think it will really inform how police, how prosecutors, how trial counsel, how trial courts interpret a lot of important case law on protesting and mischief.
00:25:14.820But that's why the Court of Appeal has to take their time and do it right.
00:25:19.780So, of course, I want it to come before Christmas.
00:25:21.840You know, it would be great to know what they are doing.
00:25:23.360I don't know the backlog in the Court of Appeal in Alberta is all I'm saying.
00:25:26.940I don't know how long it typically takes them.
00:26:17.460If if we if there is a split bench, so meaning two to one on the Court of Appeal, I imagine that whether that goes in favor of Crown or defense, that it will be appealed, that that the counsel on either side of that losing equation would appeal.
00:26:36.320So if that's the circumstance and we're going to Supreme Court of Canada and then we have to wait for a hearing of Supreme Court of Canada, we could be into 2027 before this is finally determined and over.
00:26:46.680Five years and, you know, it's been a labor of love.
00:26:51.120Rebel News has crowdfunded a lot of litigation, not just Arthur, but out out east were crowdfunding Tamera Leach's trial.
00:26:58.740I'm going back out there on Friday for the last that's like 44, 45 days of hearings now.
00:27:04.260And I'm sure the Crown out there will will appeal if they lose.
00:27:10.460Well, the reason I say that is these are the spectacular cases, Arthur's case, Tamera Leach's case.
00:27:16.740There's been a few other nationally famous cases, but ninety nine point five percent of the cases the Democracy Fund has taken are just severely normal people.
00:27:27.480Six thousand dollars in arrive can fines times for family members, 24 grand.
00:27:32.660But there's no way a normal human could pay for that.
00:27:37.520And as I say about these massive cases, a poor person couldn't and a rich person wouldn't.
00:27:45.380A rich person wouldn't take their life savings and spend it on lawyers to fight for freedom.
00:27:53.340They would do the the math and say, all right, I'm going to pay a fine.
00:27:56.620I'm going to cut my losses and I'm going to live a subdued, humble life of privacy now.
00:28:02.980It's only through the unique combination of motivated litigants and crowdfunded dollars that this is possible.
00:28:11.620On the one hand, that's a wonderful innovation because I don't think that was really around before the edge of the Internet.
00:28:17.040On the other hand, it's deeply sad to me that the financing of legal liberty in this country is done in 50 and 100 dollar chunks by, frankly, Rebel News viewers.
00:28:31.500And the great institutions that in the past we've relied on to protect our freedoms have been silent.
00:28:55.100So the Trombley case that Greenspan did in the Ontario Court of Appeal, the man with the van on the side of his property, that did have CCLA intervene.
00:29:15.860So they did apply to intervene and they so they're there.
00:29:18.840I think I think there's a real funding issue with respect to civil liberties groups.
00:29:23.480I think the Democracy Fund has done an amazing job to make sure that these cases are progressed and that they're dealt with by competent counsel.
00:29:31.400And it's an amazing, I've said this to you before, I've said it like on different interviews, it's an amazing initiative for access to justice.
00:29:39.600And the reality is that some people are going to take issue with me saying that to say, well, these people are rebel rousers and they're awful and they say bad things.
00:29:49.540But that is where we have to be pushing things to understand where those limits are, that's where we get the interesting case law, that's where we get the definitive case law that tells us how to interpret things.
00:30:01.380It's where we're pushed to limit, not when you're walking across the street and blocking a car for 10 minutes for, you know, an ongoing little march protest.
00:30:09.800Right. Most of the time, those innocuous things are going to be ignored by police.
00:30:14.720But it's it's these types of cases that allow us to interpret the law and then know how to apply it to to the smaller individuals.
00:30:23.320Well, almost by definition, mild speech is not censored.
00:30:28.960It's the prickly stuff. And I alluded to it before.
00:30:34.040I mean, I like the fella, but he can be hard to handle.
00:30:37.180And Tamara Leach is just an absolute sweetheart.
00:30:40.020I can't find a single critical thing to say about her.
00:30:42.920But I think of myself and the trouble I've gotten into over the years.
00:30:45.440I think of Mark Stein. I think of the case that was mentioned today, Bill Watcott, who's an anti-gay activist who hands out flyers.
00:30:53.320He's very prickly. And a lot of people are more than just annoyed by him.
00:30:57.260My point of saying this is if you are going to defend free speech, almost by definition,
00:31:02.460you will be defending people who are sometimes impolite or make people uncomfortable.
00:31:08.200But those that's the front line. It's not going to be the boring weather man who gets prosecuted.
00:31:14.080It's going to be the political commentator.
00:31:16.240And, you know, I remember the late Alan Borevoy, who really embodied the spirit of free speech
00:31:23.860when he was an early leader of the Canadian Civil Liberties Association.
00:31:28.060He said this, and I'll never forget it. He said, free speech is the gift you have to give to your opponents if you want it for yourself.
00:31:36.320And always think if the rules were switched.
00:31:39.960Always think, is the precedent you're arguing for, would you be okay with it if it was your speech or your opponent's speech on the other side?
00:31:49.420And I don't know. I feel like what you're doing in there is important.
00:32:06.340But yeah, I really appreciate everything the Democracy Fund has done.
00:32:09.900It's like for Arthur, for Arthur's rights and for the rule of law, because this is where it's getting decided at the Court of Appeal today.
00:32:19.960I mean, it is for Arthur's rights, but the precedent will be binding on every Albertan in this case and what we do in other provinces.
00:32:27.460You said some kind words about the Democracy Fund, so let me close on that note.
00:32:31.920As you know, when we started defending people during the pandemic, the Democracy Fund wasn't a thing.
00:32:37.420We took one case, then we took a second pastor in this city, and they were arrested for feeding the homeless.
00:32:44.840Before you knew it, we had 25 cases and 50 and then 100.
00:32:47.940And we said, oh my God, what have we gotten ourselves into?
00:32:50.760But then we created, at arm's length, I mean, it's not run by Rebel, it has its own board of directors and its own accounting,
00:32:58.080the Democracy Fund to take all these cases off our hands with the added bonus of issuing charitable tax receipts, which Rebel News cannot do.
00:33:06.940And over the course of the last three and a half years, the Democracy Fund, as I mentioned, has taken 3,000 cases and literally raised millions of dollars.
00:33:16.520And it's been an amazing project that has been one of the most, I don't know, most important or meaningful things I've done with my life.
00:33:26.460And you've been an important part of that.
00:33:28.340You've taken a lot of cases and your firm has taken cases.
00:33:31.640I believe in hiring lawyers, not pro bono lawyers.
00:33:36.220Pro bono is the Latin phrase for someone who does it for the public good.
00:33:39.660And I admire anyone who would volunteer, but typically a volunteer isn't a subject matter expert.
00:33:45.300And the thing about volunteers is they're very emotionally passionate in the first round, but will they be there 500 hours of work later?
00:33:54.560Or will they say, I've just got to earn a living.
00:35:30.800As you know, I was in Sao Paulo on the weekend for a rally of about 200,000 Brazilians who were rallying because a judge there shut down all of Twitter.