Hello and welcome to episode fifty of Not Reserving Judgment, a podcast about the latest intrigues, triumphs, and outrages in Canadian constitutional law. I'm Joshua Hawes, counsel with the Canadian Constitution Foundation.
I'm Christine Van Gein, the CCF's litigation director.
And I'm Joanna Barron, executive director of the CCF.
In today's episode, I'm gonna tell you about the not guilty finding related to two men accused of conspiracy to
murder
police in Coutts, Alberta during the Freedom Convoy.
I'll tell you about an Ontario farmer who's being told that he needs to pay up to the tune of four hundred thousand dollars in archaeology fees if he wants to build a house on his property after certain artifacts were on Earth.
And we'll share our Bad Legal Takes to the Weave Corps where we take a lighthearted look at some legal opinions that didn't quite land. But first, I wanna tell you about a counter protester who stood up against Hamas supporters and got arrested for it, and explain why I think that decision by police may have violated his rights. So I'm talking about Dominic Cardi who is both a former New Brunswick NDP leader and a former New Brunswick
progressive conservative education minister, which is, interesting. He's currently interim leader of the Canadian Future Party, which is an upstart centrist conservative party related to the center ICE movement. And it's not actually all that important who Cardi is. What's important is what happened to him last Thursday
in Toronto. As he recounted on ex, Carty was visiting Toronto when a bunch of, when he heard a bunch of chanting at young Dundas sorry, Sankofa Square coming from what what he described as a bunch of Hamas enthusiasts, and I think that description is warranted. Now these protesters were blocking traffic, and they were literally trampling on an Israeli flag in the middle of the intersection, chanting things like long live the resistance, and these are not nice
people. Carty waded into the crowd. It wasn't a huge crowd but he waited and he started chanting in the middle of it free Palestine from Hamas, free Palestine from Hamas, which obviously these people did not like. As he puts it, this attracted negative attention, which is fine, he says. He He says, quote, in democracies, we have our voices and our bodies, and all expect both to be protected when
we exercise our rights. As we live through this horrible reboot of the nineteen thirties, we have to use our rights to resist the authoritarians. Cardiads, I was approached by a Toronto police officer. He asked me to leave. I declined. He left. I was met with multiple threats and a good kick from assorted masked
weirdos. And then you can see in, a video posted by the lawyer and journalist, Karam Hassad, that there are various people including at least one kefir masked thug physically intimidating Cardi. They're yelling at him. One moment makes the upside down triangle. I don't know how to do it. That's a rectangle. Upside down triangle with her fingers. Yeah. You got it, Chrissy.
I feel kindergarten. Just just she makes this upside down triangle symbol, which is obviously a reference to the the, the red triangle from Hamas's propaganda videos, which shows who's their next Israeli target.
Disgusting.
Yeah. And, you know, it's tense. Like, these protests with counter protesters always are, but I didn't see Cardi do anything that looked violent or threatening. And, you never know, but you can't see it on the video. Anyway, police returned and arrested him for disturbing the peace. He says he was staying at the police station locked up where he took a nap, and he was released after a couple of hours without charges or conditions. So he writes on Twitter, no more standing by. It's time
for standing up. Step up against extremism. Defend our open society now. And he says he refused to agree with police that he wouldn't attend future protests. So I've reached out to Cardi to try and discuss the situation because I wanna know if there are more facts that we're unaware of. Because, you know, based on what I saw, it looks like his
rights were probably violated, by the police. You know, I don't think he gave them any reason to believe that he was about to breach the peace or that he had breached the peace. And so this is why I'm I'm concerned. And I say this based on the law as outlined in the twenty nineteen decision in Fleming in Ontario, which is a case the CCF intervened in to defend a
protester, whose rights were also breached. Randy Fleming, just to give the the background of the story, was a resident of Caledonia, Ontario, which is a town where Six Nations protesters were terrorizing the local non indigenous townspeople for years because of plans to build a housing development on land that they claimed they've been promised by the crown. And this involved requiring residents to show six nations issued passports to get
to their houses. There's a brutal attack on a man at the development with a two by four that left him with serious, like, brain damage. There was more than one arson that at one point a power station was burned down, which caused a big blackout. It was a really ugly situation. And rather than enforce the law, the Ontario government, which was Dalton McGinty's government at the time, just purchased the site and handed it over to six
nations to end all of the acrimony. Anyway, Fleming was a counterprotester, so he attended this rally called a flag rally where local residents would just walk along the streets of Caledonia in front of the development carrying big Canadian flags. And on the day in question, a police cruiser, two vans, and paddy wagons all sort of aggressively approached Fleming, which caused him to, like, walk up toward the, development site.
And he was carrying his flag, and police were yelling at him, like, drop the flag. And he refused to drop the flag, so they ran up and arrested him. And they put him in jail. They injured his arm, and he was arrested basically just for protesting with the Canadian flag. So the OPP went to court and they argued that Fleming's rights were not violated because they'd arrested him basically
for his own protection. They said someone else was about to breach the peace because when he walked up, there were, you know, eight or ten protesters walking towards Fleming, and so they had to arrest Fleming in this scenario even though there were, you know, several cops available to confront the protesters if they need to. So, anyway, the Supreme Court in this scathing twenty nineteen decision written by justice Suzanne Cote, said this is not acceptable police behavior.
It's a violation of rights. You know, the courts do have the power to do what's reasonably necessary to carry out their duties, which include the duties to prevent crime, to protect life and property, and to keep the peace. But they don't have the power to arrest somebody who hasn't committed an offense, who's not about to commit an offense, who hasn't breached the peace, and who's not about to breach the peace. They they can arrest someone just to prevent a breach of the peace by
someone else against that person. So, anyway, the court struggled a bit to define breach of the piece and that's understandable because it's kind of a weird concept. In one sense, originally all of the crimes were breaches of the peace, but then we started codifying crimes and what we're left with is this more ambiguous concept that's not actually a crime, but it's
still part of the law. And the criminal code says about Breach of the Peace that an officer is justified in arresting any person whom he finds committing a breach of the peace or believes unreasonable grounds is about to join or renew a breach of the peace. But all this means is the cop himself or herself is not violating the law when he or she arrests somebody for breaching the peace. It doesn't say it's actually a crime to breach the peace because it isn't a
crime. And so this creates this weird situation where police can arrest people, without, you know, charging them with anything. And the court looked into various situations to try to find what Breach the Peace really is. And they said, quote, violence lies at the core and there must be a risk of harm and violence. They also said danger to the person is always involved so it's not about property. And they said behavior that quote is merely disruptive, annoying, or unruly is not a breach of
the peace. And if, you know, basically, what they're saying is if it looks like somebody's about to, you know, punch someone or kick someone or start a riot at a protest, which are all actually themselves crimes. Police can choose to take the sort of intermediate step of arresting for breach of the peace or anticipate to breach the peace so they can, you know, let that person cool off without actually charging them with something like assault. And that's sort of what how it functions in
our system these days. So the court also made clear though that police, you know, like I said, can't arrest somebody just for being a provocateur. They say a provocateur whose lawful actions or words are feared to be prompting others to respond violently such that they may become a victim of breach of the peace, can't be arrested because that would significantly interfere
with their liberty interests to arrest them. It's also a violation of the right to be free from arbitrary detentions, physical liberty is involved, security of the person because you're, like, physically grabbed might be involved, and of course according to the court frame of expression is involved because you are allowed to be a provocateur. You have a right to speak even if
it's provocative. So another little wrinkle in this, which is, interesting is that the SEC said that there may be truly exceptional circumstances where police may be allowed to arrest somebody who's not about to commit a breach of the peace in furtherance of their duty to protect
life. And they said this would only be an exceptional circumstances, for example, in in the hypothetical situation where a person's done nothing wrong, but an angry mob is about to attack them while they're lawfully exercising their freedom of speech, and the person refuses to comply with a lone police officer who's on the scene. So this is not what happened in Fleming. There were, you know, at least five cops.
There were about ten protesters. So the court was like, you know, that that's not okay. You can't arrest someone in that scenario. And, so they didn't have to decide whether that power exists, but it might. So long story short, if somebody's done nothing wrong that gives nothing that gives police reasonable grounds to believe they're about to commit violence, then they they could arrest them for breach of the peace. But, you know, reasonable grounds is not the
lowest standard. They do have to have some level of evidence that goes beyond mere suspicion. So for example, you know, if somebody's running towards someone else with a pitchfork, police could probably arrest them for breach of the peace. But if someone's merely exercising his or her free speech rights, you know, saying provocative things as a counter protester and there are multiple cops available to arrest people if things do
start to go south. The cops have a duty to protect that person's speech rights, and they absolutely should not be arresting them. And if they do, police should not be surprised if they face a charter challenge from someone like us. And, you know, the CCF would be interested in potentially taking on one of these cases one day because police do these things far too often. So, anyway, I'm trying to get a hold of Dominic. If you're listening, we should chat. Please give me a
call. I think that's all I wanna say about that. Joanna, what's your reaction? What do you think after hearing this story?
Well, thank you for giving the breakdown of Fleming. I think Fleming is a really important case. And my reaction to the Carty situation, while I agree that it's important sort of give operational deference to cops, and obviously a term like breach of the peace is sort of intentionally somewhat vague and allows a lot of operational flexibility. For me, it's just there were so many things the cops could have done if what they were concerned with doing, which is what, you know, giving them the
best faith interpretation. There's also a less good faith interpretation available in this particular situation when you have someone like Dominic Carty, who I'm sure the cops didn't know but is, like, renowned for being very centrist and very sensible. And then you have people jumping on the flag of an OECD country in the middle
of downtown Toronto. But all of which is to say there's so many things that they could have done to deescalate that don't involve arresting the guy and making him take a nap in a lockup. Like, that is a very severe infringement of liberty. They could ask to have a certain amount of space. They could, you know, keep they could like, the cops' job is to kind of put their bodies in between two hostile groups. And so it just seems to me to be unreasonable
that they went to this extreme. However, as you said, there's a lot that we're not aware of. We don't know exactly what went down, but we also haven't heard anything at this point that suggests that there was a need to take Carty into custody. So, and it's important to get these things right. These things where people are literally losing their s
on the street right now. It's important that Icardi is right that as much as I'm not much of a street protester myself, you democracy requires that you use your voice and your body. And he has every right to show up and express his views in what did you say it's called? I actually hadn't even heard that yet, and I, like, have lived in Toronto my whole life. What's it called now? Sanofi Square?
San Sankofa Square. They just renamed Yankofa Square.
What what's Sankofa?
About oh.
I I heard that they were changing it, but I didn't hear they landed on what's Sankofa?
Sankofa is I forget what it means. It means something about looking back at your history and, like, atoning for it. And it's from the Akan people, which is, Ghanaian, people who themselves were very involved in the slave trade. So it's, yeah. It became this whole controversy because basically, people were saying we need to rename young Dundas Square because Dundas was, anti, was pro slavery, and that's not actually true.
He was anti slavery. And if you know anything about the history and review it, he was, instrumental in getting rid of slavery sooner than it would otherwise have been abolished. So the irony that they decided to choose the name of, or or a word from a language, derived from the people who also participated in slavery around the same time is kind of, lost on people. But, anyway, we don't need to get too deeply to that.
Anyways, I'm impressed by Cardi and his wife when I read about this over the weekend or or partner. I'm not sure what it is. I I started looking at both of their social medias and, they are, like, a very, very principled and brave New Brunswick couple. His wife has gone to Ukraine. She does various international aid stuff. She organized the, like, hand holding, encircling the synagogue that was attacked
in Fredericton in January. So they seem to me to be people that we want to encourage and not lock up for their bravery. What do you think, Christine?
That's awesome. I wanna meet these people.
Yeah. And
also, Joanna, don't forget. You say you don't engage in street protests, but I do recall being in Ottawa with you when a group of Hamas loving protesters were outside a conference that we were attending and you did counter protests. So you're lucky that you were not arrested for your provocation. That is true. Another thing I I just think is, like, so absurd is that, the notion that's saying free free Palestine from Hamas is like should not
be considered a provocative statement. Like literally we should free Palestine from Hamas. It's a terrible terrorist organization that's doing a huge amount of damage. The idea that that is provocative enough that we need to lock this man up is completely outrageous.
Oh my god. Yeah. Like I was just reading, maybe we're going on too much of a tangent, but I was reading David Remnick has an amazing profile of, of Yahya Sinwar in the New Yorker this week. And he talks about how his his nickname, even among Palestinians, was the Butcher of Khanunists because he just established himself as just being, like, just completely brutal. Like, he heard that there was a, barber in Gaza that was like, letting his customers look at nudie magazines in the
back or something. Like he just heard a rumor, and he, like, butchered him with an ax himself. And, like, these are things that are, like, not disputed. Like, these are these are not people that are going to liberate the Palestinians, guys. These Yeah. So And the reason yeah. The reason Sinwar was released from prison was because he had only murdered during the Gilad Shawi prisoner exchange. He hadn't murdered any Israelis. So I was like, well, let me see how that turned out.
Yeah. It's I mean, it's just not a provocative statement. It's a completely rational statement. And, the fact that it's considered provocative is kind of a condemnation of the people who were engaging in that protest in whatever that square is called. I mean, that their perspective is completely warped. Anyway, let's head to my news
headline. So I'm gonna give an update about a criminal law case, which, to be clear, we are not involved in, and I add that caveat because, obviously, as all our listeners know, we were instrumental in, the legal challenge to the Emergencies Act in response to the twenty twenty two Freedom Convoy. And this is a criminal, criminal charges and a criminal case related to one of the blockades, the in particular, the blockade in Coutts, Alberta. So this
these are the criminal charges. The the case involved two men who were charged related to that blockade at Coutts, Alberta. It was one of many blockades that took place across Canada, at the border locations. And the two men were named Anthony Olenek and Chris Carbert. And they were charged with a variety of criminal offenses related to the blockade, and they were charged after the RCMP seized weapons, body armor, ammunition, all in trailers near the blockade along
with a firearms license in Carbert's name. And the police later located weapons, buckets of ammunition, and two pipe bombs at Olyanek's home. So the charges that they brought against these two men were mischief, possession of a weapon for a dangerous purpose, charges against Olyanek in particular for possession of the pipe bomb, and the most serious charge charges were against both of them for conspiracy to commit murder of those
are RCMP officers. So it was on the last charge, the conspiracy to commit murder, that the crown overreached. They were not convicted. This week, a jury returned a verdict of not guilty for that conspiracy to kill police, but they were convicted of the other less serious, but I would say still serious, just less serious than conspiracy to commit murder. They were still convicted of those other offenses. So in reading the case, I learned a lot of details that are kind of, like, out of
Hollywood. And I don't know if you guys are aware of these details, but they're pretty they're pretty out there. So the Canadian press, described the case as a story of femme fatales, government conspiracies, the devil, and an armed invasion leading to a dystopian future. So, like, I don't know. Tell me more, Canadian press.
So, apparently, in support of this charge that Olajanek and Kerbat had conspired to kill police, the crown presented evidence of three female undercover cops who had posed as volunteers during the protests and they befriended Olyanek. And they testified that Olyanek had spoken extensively about having a cache of guns and ammunition. He talked about
how much he hated the police. Apparently, Olya Olyanyk told one of these officers this was his destiny and the war he was supposed to fight in and once again that he was going to die for this fight. And he said, apparently, to this officer, he wants to kill them all. And the officer testified, this undercover officer testified that Olyanek likened prime minister Trudeau to the devil and called the compliant mounties the devil's arms, and he told the officer that he did not expect to
survive the blockade. So Olyanek's this was a lot of these were by text exchange, and Olyanek's lawyer accused the undercover cop of flirting with Olianek responding to his texts with heart emojis. And then they got into a debate about whether a heart reaction is about you like loving the message or loving the messenger. And the lawyer said, it should have been apparent to you that Olyanek was beginning to be interested in having a relationship with you
that was beyond friendly. And the officer said, I didn't feel that way. That wasn't the impression I was getting. And then in a videotaped interrogation by police after his arrest, Olyanec said that he and his comrades only wanted to play the role of protectors of the people in Coutts, and that the goal was to take a stand against the takeover of Canadian freedoms by tyrants, including the United Nations and Chinese communists. So a lot of stuff there, but don't worry. It was not just
Olyanek. There's lots of drama related to Carbutt, who is a self proclaimed prepper. If you don't know what a prepper is, there's a really good show on Netflix that describes, like, how to be a prepper. It's pretty cool. You basically are preparing for the apocalypse. So you people have different prepper styles. Like, they'll, stockpile different types of things depending on what type of apocalypse they are anticipating. Recommend this this show about preppers on Netflix. It's pretty
interesting. Anyway, he's a prepper, and he told the court that he was prepared to head to the mountains and do whatever was necessary if someone tried to vaccinate him. And, apparently, he texted his mom saying, mom, I am fine. If they start the violence, I'm just telling you there will be war and casualties of war. I don't think you truly understand what this is for and about. If we lose here, I will likely die in the
war. So wow. He also admitted to bringing a restricted weapon, called a Panther Arms AR fifteen assault rifle to Coutts, which was then seized by police and describe and he described the police as losers and the enemy, but he later said that he was embarrassed to say that. He said it was dumb, and
he regretted calling the police losers. Okay. Well, anyway, the jury found them not guilty on the conspiracy to commit murder charge, and the CBC reported that when the not guilty charge was read out in court, there was a loud gasp, and then someone later outside yelled freedom. And, obviously, this is some wacky stuff. And the weapons charges they were convicted of, as I said, while less seriously less serious
than the conspiracy charges, are still serious. But, basically, I think that the conspiracy charge was overcharging. And we've we've had some debates online with a particular academic, who said to me when I raised concerns about a totally unrelated issue, was concerned about bill c six sixty three, which relates to online harms. And I said one of the problems, with giving these really high charges is that the crown can overcharge in the hopes of getting a plea
deal. And it looks to me and it looks to others other observers that that's what happened here, that, the the the charge of conspiracy to commit murder was an overcharge to create pressure to to lead to a plea deal, which ultimately didn't happen in this case. But it kind of just shows the point that, yes, the crown does overcharge and giving, like, really high, the potential to bring really serious charges in c sixty three is an issue because crown does overcharge in order to
get leverage to do a plea deal. So, I mean, like, I'm bringing in a personal grievance now with this academic who said that doesn't happen. Maybe don't take advice of academics about, like, what actual practice of law is like because sometimes they don't know.
Mhmm.
So, I'm not the only one who thinks this was an overcharge. Oleonics' lawyer said, I never believed since I took this file that there was evidence that would support a finding of guilt on the conspiracy charge. So it's always a tremendous relief, but it's not surprising. We had a thoughtful jury that took plenty of time to think it over. And Carbutt's lawyer said, I think it was an overcharge to begin with, and I'm glad they came
back with the verdict that they did. So I don't have much more to add than, wow, I did not know about all of these, like, femme fatale, undercover protesters and, like, all of this, drama related to the case. Maybe I'm gonna have to rethink heart emoji reacts to things because apparently that's flirting. That's what the allegation was here. But I don't know. What do you think, Josh?
I think it's, super interesting, and I'm glad you, I'm glad you talked about it. The well, first of all, this is very minor point, but, you mentioned that body armor was found, and I've been reliably informed that it was not body armor. It was just a tactical vest that anyone can buy a Canadian tire. So, small minor point. You know, this what happened at Coutts, like, this particular case with these two guys, it's the most serious thing that happened during the Freedom Convoy, and
they faced really serious charges. And so everyone sort of walked away with the impression that, like, oh, some bad things happened during the freedom convoy. Well, the most serious charge, nobody is actually convicted of because it was overcharging. And the other point is, you know, Coutts is one part of the country. It's in
Alberta. And the Emergencies Act is very clear that the threat can't you know, for it to be a national emergency, it has to seriously endanger the lives, health, or safety of Canadians and be of such proportions or nature as to exceed the capacity or authority of a province to deal with. And in this particular case, Alberta's RCMP completely dealt with the situation at Coutts. Yeah. So, you know, from a federal federalism perspective, you basically have the
federal government saying, hey, Alberta. This is a national emergency. Alberta is saying, no. It's not. We don't need your help. We used our own RCMP because the RCMP and Alberta are under contract to the province to deal with this, and they did. And it's it's just like Windsor, where Ontario police, you know, they dealt with the situation there, which was also serious, but the police were able to deal
with it at at the provincial level. So not a national emergency even though, you know, some serious relatively serious things did happen in in Alberta specifically. So that's all I wanna say about that. Joanna, what do you think?
Well, I just have one question. Was the emoji hearts, was she tapping on that was she reacting with hearts on the message? Or was she sending actual hearts as a message? Because that's two completely different things.
It wasn't clear from the reporting. It seemed from the reporting to me, like, she was doing a heart emoji react. Oh. Okay. I don't think it's flirting.
No. That I do. I don't know. Like, I yeah. I do to, like, our board chairman. Like, I do it all the time, you know, to my dad. You're listening a lot a row of hearts, that is different characters.
Stand alone heart emojis is I kinda I do think is flirting. Heart reacts? I don't know. So I I I actually am not sure. It seemed from the reporting like it was a react emoji, but I don't know. Well, then that
is definitely, you know, throwing throwing the throwing the ball too far. But, yeah, I mean, the the mens rea for conspiracy is that you have to have crystallized a plan in your mind, and that's kind of difficult for the crown to prove. But it's interesting that they chose the honeypot method method going undercover and getting although that has been argued to be more reliable than the mister big approach.
So that where they would have, like, sent in some, like, gangster who's like, you know, I'm high up in Diagholon, and I I can help you. Then there's like more of a motivation to start boasting and start saying things that are gonna be even less reliable.
So actually Well, definitely men never boast to impress women.
Yeah.
Yeah. Yeah. I mean, the risk is there in either case. But anyways, this sounds reasonable to me. I mean, look, these guys were caught up with some sketchy stuff. That's the weapons cache. That's pretty cut and dry, but I don't really know. I I guess you alluded to the reason, but it seemed unwise for the crown to overplay their hand as they did. So let's take a break, and
we'll come back. And I'll tell you about, the sad story of a Waterloo farmer who turned out to be sitting on rare historical artifacts on his property.
Hi. This is Russell from the Canadian Constitution Foundation. Did you know that CCF offers free online law courses? Our latest course dives deep into free expression with five lessons taught by some of Canada's leading constitutional experts. All you have have to do is create a free account on our website, sign up, and access all our law courses for free at the c c f dot c a slash learn.
Okay. So we wanna talk a little bit about the story of a farmer in the Waterloo region named Bruce Castle, who has been quoted about four hundred thousand dollars in cost for a publicly provincially mandated archaeological assessment. So he's been told by the Ontario minister of culture and multiculturalism that he will be fined or possibly even jailed under a violation of the Ontario Heritage Act if he disrupts the artifacts that have been found on his land.
So this started more than four years ago when Bruce decided to develop a field on his property that he used to farm, and he wanted to build a house there. He's seventy five years old and he wanted to build a house for him and his wife to retire to. But first he was mandated to get an archaeological assessment of the land.
And so the first archaeologist he hired, did a first stage assessment and a second stage assessment and he was given a budget at the end which totaled about four hundred thousand dollars and included fees to consult with relevant indigenous groups. And the reason is that for at the stage two assessment, archaeologists identified a hundred and thirty four pre contact Aboriginal artifacts or I suppose indigenous artifacts including scrapers and and projectile points in an area of the
field. And the archaeologists assessed that the site was interpreted to be and this is just interesting in general. I mean, we'll get to what it means for castle. But this was interpreted that this land was at one point used as a large area of seasonal temporary seasonal occupation by indigenous communities throughout the Middle
Archaic period. So that's six thousand to eight thousand years ago, and the report says that hunting and hide processing were undertaken at the site as well as the production and maintenance of formal tools and projectile points. What about projectile points? Is that like a weapon or
something? Arrowheads. Okay. Cool. And they also found, about fifteen meters away, the archaeologists found twelve pieces of Onondaga chirp chipping detritus, which they use to identify, quote, a small area of unknown function occupied by unspecified indigenous people during the pre contact period and it's a hard
sedimentary rock. And so Kassel, not being able to afford this four hundred thousand dollar fee to, to extract, the extract the artifacts, reached out to the minister of indigenous affairs in Ontario as well as premier Doug Ford. And basically their offices seem to be, stonewalling him. He also sent a letter to Michael Ford, who's the minister of citizenship and multiculturalism that basically no help. The determination that basically no help. The determination falls within the roles of
ministry officials. This is not a political decision. We can't intervene. Sorry. We can't help you out. He did shop around. Castle did shop around for some other estimates, and he only was able to get one for a stage four assessment which was the four hundred thousand dollars assessment. And this is not the first time that this has happened in Canada. There have been other homeowners that have been shocked by high costs following unexpected and publicly mandated
archaeological assessments. And there's a case that's considered precedential from two thousand six, when a woman named Wendy McKay or McKay of BC was built sixty seven thousand dollars in initial costs for archaeological work and inspections, because, the piece of forest that she owned, she wanted to, she wanted to develop. There was an old house on it, and she just wanted to
demolish it and build a new one. And she was billed first sixty seven thousand dollars and then in, and then in excess of a hundred and seventeen thousand dollars. So she sued the province for damages for loss in her property value and the delays in constructions And the BC and initially, her claim was rejected by the BC trial court, but the BC court of appeal ruled in McKay's favor and determined that the province had no authority to require McKay to pay for a heritage
inspection or investigation. So I've been thinking about this this, there's kind of two sort of warring principles here. The first is caveat emptor, so buyer beware. So when you buy land and beyond the sort of inspection reports and stuff like that, there is some aspect of, you know, it's your land, so any unforeseen circumstances or I guess historic indigenous artifacts are kind of on you. But the rationale is different when the like, it cuts both ways.
If you're gonna say that you take on all the risks, then you get to decide what to do with that eventuality. Because from presumably from Bruce Castle's perspective, he would be happy with just moving ahead by building his dream retirement home and knowing that he also has this fascinating rich sedimentary history under his soil. It's the state that's saying, no, we we have a, you know, a historic and archaeological interest in this so you need to pay up to have it assessed and to
have everything extracted. Mark Milke was with at a conference the other week, great fellow. He's the president of the Aristotle Foundation. His opinion is that if you as a private property owner are forced to endure regulation that could cost you this much money, it devalues your property or could break you and that's not
a fair approach to regulating private property. He also mentions that in Europe, if the government introduces a regulation that's very costly for you, it's the burden on the government to pay for it. And he says on taxpayers oh, Christine, I'm curious what you're gonna think about this. He says, I don't normally recommend that taxpayers take another bill, but in this case,
I think it's justified. So so yeah. I think if the if the principle is going to be you take on the risks, then you should be able to decide what to do about those risks. But equally, I see that, yeah, the state has, an interest in preserving the history and the archaeological integrity of our land. And it does seem just, like, fundamentally unfair if it's the state that has the interest in it that the cost remains on the landowner. So I'll be interested to see where this case goes. What do you
think, Christine? Can the can we have another tax added in this specific circumstance?
Well, what I would say is that this creates a moral hazard because if you create a situation where the cost of finding artifacts is so burdensome on the individual, they might just not find the artifacts. Right? Like you might just say, I'm bringing in a bulldozer and I'm paying the guys who found the pointy projectiles, you know, I'll pay them ten grand to dump it instead of paying four hundred grand to be let the government know that I found them. So I'm not saying
that that's the right thing to do. I'm just saying that if you create this situ if you create this costly situation that prevents someone from building a home on their own property, you're you have to acknowledge that you're gonna cause people to make rational economic choices. And that choice in a lot of situations will result in the destruction of artifact. Yeah. Josh, what do you think?
I would just say don't take what Christine just said as legal advice. Is not advice. I'm just kidding.
Not do that. I'm just
saying that
the government is not fair that that could be a reaction to this.
When when things get that expensive, you know, people are gonna try and go around the the rules. I mean, I don't even know if the government really has an interest in finding artifacts on in terms of the archaeologists and the consultants. They're probably making huge profits off of this poor landowner who's used that land before and is now, you know, trying to do the right thing by, by all
accounts. But it reminds me of, you know, real estate law in, in law school where they teach you, you know, if you're gonna buy any sort of rural property before you even sign that agreement of purchase and sale, you should be consulting a lawyer because these types of things can come up and you don't see them coming and you end up with a property, that you've agreed to buy that is, you you know, essentially worthless in some cases if it's gonna cost you that
much to get around the regulations and
Can you get
this all set?
Policy for that? Like, can you get indigenous artifact insurance? Oh, that's
the one that I bet you it's excluded from the the the common policies, but I don't know. It's a really good question. Again, consult your real estate lawyer, not the not a podcast. But speaking of worthless, so the other thing I'm thinking here is, you know, there's this ancient sort of common law property law principle that if if the government takes your property, they have to compensate you for that. Right? Like, we've talked about expropriation before
on this podcast and and takings. And the government generally does have an ability to take your property for for certain purposes, but they do have to compensate you for it. Right? So here, I feel like the governments, if they claim there's an interest in having eight thousand year old projectiles dug up from this property, which I'm a little skeptical of. But if that's if if they're getting a benefit out of that, then they ought to be the ones paying up. So I question whether
this is is is a taking. But, not something I've looked into too deeply. So we'll have to keep, keep researching this question and see, see where that goes. So I think we should move on to bad legal takes. Who wants to go first? Christine, wanna take it away?
I can go first. Mine is really gross, guys. FYI. So my Trigger warning. Trigger warning. My bad legal take relates to this weird story about Wasaga Beach, which is a beach town in Ontario, just north of Toronto. And allegedly, at Wasaga Beach, people have been pooping
on the beach. And this lady on TikTok named Natalie Lynn, she lives in Wasaga right by the beach, and she posted a series of TikTok videos about how people visiting the beach, so not not residents of Wasaga, but, like, other people from other towns are coming to the beach and pooping on it. And they're burying their poop, and they're also burying
dirty diapers. And she said she's caught people doing it and yelled at them, and then her daughter has dug up really gross stuff like this while playing in the sand, and she said some people set up tents on the beach that are kind of like, you know, out how tent outhouses, and they put the tent up and then they dig a pit in the in the sand inside the tent, and then they poop in the pit. And she said that her daughter's friend fell in one of these poop pits. Ew. Yeah.
I know. It's really gross. So she said that people who are doing this are Indians and or immigrants, like in East Indians. And this resulted in a bunch of claims that she is racist, and she's responded to these claims that she's a racist by saying that she is indigenous herself and that her daughter, is half Indian, like, East Indian, and her daughter's father is Indian. And she said that she doesn't have any particular care about who
is doing it. Just she's just saying what her experience is and calling out unhygienic behavior happening in her backyard so that she can warn other people so other people don't fall in these poop beds. Now I don't know if people are pooping on the beach at Wasaga. And if they are, I don't know who they are. This the the mayor of Wasaga Beach has said this is misinformation and that there isn't poop on the beach. But former bylaw officers interviewed have said that there
is poop on the beach. So I don't know what's true, but my bad legal take relates to what happened next. So Nati says that after her TikToks blew up, the there was province wide coverage of the beach pooping issue. And then one day, Hallease showed up at her door, and she actually recorded the interaction with police. It was an OPP officer
who came to her home. She let him into the house, and he told her, and I'll quote what he said, someone called in about someone posting things on TikTok about East Indians pooping on the beach. He said that there have been no incidents on poop of pooping on the beach recently and that it's an old incident. And she said, no. It's recent. My daughter's friend just fell in one of these pits. My daughter has dig dug this stuff up. I've caught people pooping on
the beach. And the police officer said, quote, maybe don't note the particular race of the people who are pooping on the beach. And she said that she's entitled to speak about her experience and that she's not racist, and her daughter is Indian. And the OPP said instead she should just encourage people to call by law, which she already has been doing, obviously. So my bad legal tag goes to
the police. I mean, the officer, he from the interaction, he was nice and respectful, but police should not be going to people's homes to chastise them about what they post on social media. It's a really troubling interaction to me, and it sort of shows an operating operationalization of our concerns around Bill c sixty three, which I've already referenced in this podcast. That's the online harms bell. It shows people are willing to weaponize concepts of hate speech.
Like, this is clearly not hate speech, but some people don't know what that means, and they call the police anyway and send the police after this woman because they don't like her TikToks. So my concern is, you know, this is already happening without c sixty three. If c sixty three is passed, you know, would human rights tribunal bureaucrats or human rights commission bureaucrats be investigating this woman and taking her to the tribunal to defend her comments
that people are pooping on the beach. And and frankly, if what she's saying is accurate, this is actually important information. We don't want our kids falling in poop pits on the beach. We wanna know the truth. And look, the mayor has said that this is misinformation, but, obviously, the mayor is also interested in trying to make sure his town doesn't have this reputation so people continue to visit it. So I actually think it's important information if
it's accurate. And either way, the police should not be doing this. Like, this happens in England where the police, like, show up to knock on people's doors to, you know, chastise them about noncriminal things that they have done. Like, leave people alone. This is not a police issue. Anyway, Josh, what's your bad legal take this week?
My bad legal take goes to Amnesty International, which has named a Wet'suwet'en chief named Adam Gagnon or I'm not sure if that's how
you pronounce it in BC. But anyway, Adam Gagneaux as their first prisoner of conscience, and he was he's serving a sixty day sentence for interfering with the twenty one twenty one construction of the Coastal GasLink natural gas pipeline in Northern BC after allegations that he and others seized and disabled heavy equipment and blocked the road to the pipeline and the actual
sentence is for contempt of court. And I don't actually know actually know the details, but, you know, sometimes that means the courts ordered protesters to, you know, stop blocking construction, and they've ignored that order. So that might be what happened here. Interestingly, Gonyeo's case is, or
his sentence is actually just house arrest. It's not even jail unlike what Tamara Litch faced after the Freedom Convoy protest when she, allegedly breached her onerous bail conditions that basically removed her right to freedom of speech. So I would say she was more of a prisoner
of conscience. And the reason I think this is a bad legal take is just because it cheapens the whole concept of conscience rights to suggest that a particular person has been denied their conscience rights just because they're not allowed to, you know, participate in the blockading or sabotaging of a pipeline that's being legally constructed after many years of consultations and court battles. Confirming its legality is, like I said, cheapening the the the concept. And I've been
researching conscience rights a little bit lately. And the point is, you know, it protects deeply held moral convictions because sometimes the official morality of the state ends up being wrong and people do need space to, you know, speak out and make their conscientious objections. But it doesn't protect an unlimited right to manifest conscience in every possible way since we all have conflicting views about what's right and what's wrong.
And what it really means is the government needs to consider people's conscience claims and try to accommodate those conscientious objections as much as possible. It's not it's not a veto over everyone else. And like I said, there's so many serious conscience violations happening in Canada that I think MEC could have chosen, to support someone who wasn't so obviously, you know, breaking the law. So that's my bad legal take. Joanne, all two of yours.
My bad legal take of the week goes to Charlotte Dawood, who writes in The Rabble, it's time originalism came to Canada and she makes a case or tries to make a case that originalism can and should be leveraged to achieve progressive legal wins in Canada. And let me just take you through her argument. So she starts by saying that, for example, section seven and many of the other press,
provisions in the Charter. So section seven, which protects, deprivations only in accordance with the principles of fundamental justice and phrases like life, liberty, and security. The person, she points out that these phrases had very little precedent in Canadian law prior to the drafting of the Charter and she infers that this is because the drafters of the Charter wanted to delegate the judicial minds and concludes that section seven was in the minds of the people who drafted
it, a quote unquote constitutional blank check. So when you do originalist legal interpretation, you tend to look at the original public meaning and that usually involves looking at legislative debates. And we know that section seven was intended explicitly by Pierre Elliott Trudeau and the other drafters, and the other signatories to protect procedural and
not substantive due process. This is my sort of gloss on her argument, but let's get back to her argument because she is correct that the procedural versus substantive due process protected in section seven was pretty much immediately thrown out the window in an early case decided under the charter called the BC Motor Vehicle Reference, which says, that basically even though we know the debate say it protects only procedural due process, there's democratic legitimacy in giving full
effect to the Charter rights. So we're gonna say it protects substantive due process as well. But then Dawood goes on and she concludes that the Charter can be a bedrock protection for the right to abortion. And she says we should be originalists not because the constitution was perfected with the creation of the charter, but because fixing the meaning of the constitutional text in the past means that while the constitution can never mean more than what it meant at the time, nor can it ever
mean less. So it seems to me she's trying to have it both ways. She's saying on the one hand, section seven, another provisions of the Charter are constitutional blank check. They have no fixed meaning. It's entirely up to judges to decide what it means. And she's also saying, but it does include the right, the right to abortion and it can never go below that. So I just I must admit, I'm not following the logical corollaries that
Ms. Doblewood is trying to make. It doesn't make sense so it gets my bad legal take of the week pick. But good try. It was an interesting novel argument.
Alright. So that's the show for regular listeners. Please go to our website or the show notes and fill out our not reserved judgment survey so we can know what you like and don't like about the show. And, last month, July was actually our best month ever. Joanna and Christine, I don't know if you know that, but, listens are way up, which is unusual for the summer. So good for
us. You can support our work by subscribing to the CCF's YouTube channel, by following us on Twitter, or by visiting our website, theccf. Ca, where you can sign up for our new and improved Freedom Update newsletter. The CCF is a nonpartisan legal charity funded by your donations, so please click that donate button on