, 05.12.2021 12:14 PM

My latest: the constitutional abomination that is C-10

Pro tip, Trudeau Liberals: When you have a Constitution, heed it.

And if you have legal experts to check out your legislation, use ’em. They’ll help keep you out of trouble.

And in recent days, on the free speech front, Justin Trudeau and one of his ministers have had plenty of trouble. All self-made.

We tender as evidence Bill C-10. The bill updates the Broadcasting Act, which hasn’t changed in two decades. That’s arguably good.

But the changes contained in Bill C-10 could give unelected federal bureaucrats the power to censor the content you, Dear Reader, upload to the internet. That’s inarguably bad.

Now, during the pandemic, it’s pretty hard for anything to get noticed (ask Erin O’Toole). But C-10 did. There was a huge hue and cry, hither and yon. Canadians, on all sides of the ideological spectrum, were livid.

So the Trudeau party hastily reversed itself, and sent their censorship bill off for a Charter review. Could it still come back as bad as before? It could.

Since the establishment of the Charter of Rights and Freedoms in 1982, Canadian courts have developed tried-and-true approaches to determining whether a law is constitutional. So let’s do a quick review of C-10, shall we?

First off, we need to determine if C-10 violates a section of the Charter. Simply put, it does: Section 2(b).

Here’s what Section 2(b) says: “Everyone has the following fundamental freedoms: Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

“Everyone” means everyone. That’s you. A “fundamental freedom” is the most basic right — and, some would say, the most important in a democracy. Because they’re the things that make us a democracy.

Does the “expression” referred to in Section 2(b) cover the stuff you post on social media, or your blog, or whatever? It surely does. In one of the earliest Charter Section 2 cases, the Supreme Court of Canada said that expression is “any activity or communication that conveys or attempts to convey meaning.”

“Any.” That covers your granny’s cat pictures, but also your 2,000-word critique of Trudeau’s vaccine rollout (which, as your granny would agree, has been pitiful). So Bill C-10 is caught by the Charter’s free speech provision. And it fails.

But is it therefore dead? Not yet, folks. The Trudeau government, which has thousands of justice department lawyers to do its bidding, can argue that the breach of Section 2(b) is “reasonable.”

That’s Section 1: To be reasonable, a limit on a Charter right needs to be “prescribed by law” and “demonstrably justified in a free and democratic society.”

So, is Bill C-10 prescribed by law? Well, it will be, if the Trudeau cabal get their way. They have the power to pass the law, and they’ll do so with the gutless acquiescence of the NDP and the Bloc Quebecois.

But is it “demonstrably justified in a free and democratic society?” No. No way.

No other country in the world is proposing to regulate the internet in this way — save and except China or Iran. Nor is the bill what lawyers call “proportional” — no other country is using a sledgehammer to kill a flea, as C-10 does. Is the impairment of basic rights minimal, here? No, sir. C-10 would throttle the principal way in which we all communicate with each other during this endless pandemic.

On every front, in every way, Bill C-10 is wildly unconstitutional. It violates our most sacred law — the Constitution of our country.

So here’s more free legal advice, Trudeau Liberals: With C-10, you are in a deep, deep hole.

And when in a hole, stop digging.

— Warren Kinsella is a lawyer and an adjunct professor at the University of Calgary’s Faculty of Law

17 Comments

  1. ablanas says:

    So: a) Is Trudeau trying to slide this in this autocratic C-10 during chaotic and distracted times, or b) have the Heritage the bureaucrats hijacked their useless minister? Oh yea, the PMO has control of everything, so the answer is a).

  2. irreversable road map to freedom says:

    I called that one. His staff did the polling and Gerald told Justin this stupid idea isn’t popular… just like all his other stupid ideas…. yawwwwwwwnnnn… so its time to give up just like how they gave up on every other stupid idea they ever had. And the voters love it because Justin is so polite and sincere when he gives up on all of Gerald’s stupid ideas. Rinse, wash, repeat, let the hair doo move 50 ridings next time around.

  3. Robert White says:

    This article amply demonstrates why I follow the War Room, and professor Kinsella. From a perspective of Social Science and Continuing Education this is simply one of the best Canadian Legal Studies lectures on the Internet this day regarding legislation C-10 process before the Supreme Court bench.

    If Canadian jurisprudence sells us down the river on this one all heck will break loose across all lines of Canadian Journalism, but most of that has already been bought off via subsidy of the same governance that is proposing the bill.

    RW

  4. Peter Williams says:

    The NDP and Bloc will support C-10 figuring it will be applied to conservatives, right wingers, etc.

    They will put their trust in Team Trudeau; that they’ll not censor the NDP, Bloc, or labour unions.

    However, if memory serves, the NDP were a major critic of Team Trudeau during the WE affair. At times various labour unions have also been quite critical of Trudeau.

    If C-10 passes criticism of Team Trudeau will be silenced. Think Soviet Union, think China, think Cuba.

  5. The Charter also explicitly covers broadcasters, yet, as you point out, they have been subject to the Broadcasting Act for two decades. Was that unconstitutional too?

    • Warren says:

      The Charter covers the action or inaction of government. Not private parties.

      • Currently the CRTC regulates private broadcasters. Under this law the CRTC would also regulate private video sites, although not individuals directly. In both cases any CRTC regulation would be subject to this Charter.

        I don’t see how this bill could violate the Charter of Rights. The regulations created because of this bill could, but that it true of many laws.

  6. Yet Another Calgarian says:

    Our PM must get up in the morning and ask himself “What would Xi do today?”.

    To start there would be some interesting interactions right out of the gate between C-6 and C-10 to severely understate it.

  7. Gilbert says:

    This bill won’t pass because it isn’t popular. It’s a shame that the NDP and Bloc support it. It often seems Canada has a coalition government.

  8. Doug says:

    If anything, the CRTC’S mandate should be shrinking to not much more than licensing wireless spectrum.

    1) The internet is not a scarce, public resource. It has infinite capacity. Government cannot make the argument that it needs to regulate content to maximize alleged benefit of a scarce resource

    2) Online content isn’t broadcast. Users choose what they want to consume and when. Increasingly content providers offer their works directly to the consumer. A company may host the servers and provide methods to discover content, but they act as dumb utilities. The notion that content is pushed to a broad market is dead.

    3) Content no longer associates with a nation state. A user can consume or market content globally.

    4) The existence of Canadian content requirements is the real Charter violation. The government has no right to axt as a Ministery of Truth, enacting legislation to promote or discourage certain types of content other than deeming extreme content like child pornographt to be illegal.

    The Internet is probably the most revolutionary media technology since the printing press. I wish it had existed when I was in my teens so that I could have bypassed all the mediocrity of government mandated Canadian content.

    • Ron Benn says:

      Thank you Doug for a concise description of why the CRTC should go back to managing wireless spectrum.

      No more mismanaging “commodity” pricing to effectively limit competition on price while claiming the opposite.

      No more limiting competition from larger, better run multi/transnational entities.

      No more defining and redefining what constitutes Canadian Content.

      No more creating disorder in the market place to ensure job security for thousands of clerks and communications grads.

    • The Doctor says:

      Some of the points you make there are also articulated by Andrew Coyne in his op ed in this weekend’s Globe. His historical point being that when we first came up with this cultural protections in the 50s and 60s, there was extremely limited access to platforms and distribution channels, such as olde tyme radio and 3-channel TV etc. That meant that there was at least an argument that if Canadian voices were excluded from those platforms, basically the average Canadian wouldn’t be exposed to any Canadian content. Not saying I agree 100%, just saying it’s a plausible argument.

      But now anyone can go on YouTube, a zillion social media sites etc. etc. and publish and distribute till the cows come home. So we really need to question the premise of all this in today’s world.

      • Robert White says:

        Fixed Income Seniors, Social Assistance recipients, Ontario Disability Support Program-ODSP, and homeless indigent Canadians do not have access to High Speed Internet throughout this pandemic. No libraries are open to access free high speed, and wireless WiFi accessed requires a high speed interface which the poor cannot afford.

        I access this site via dialup 56k Modem which is not high speed I assure you. In addition, I cannot access any video or music audio tracks because the download time via 56k Modem through a telephone line is far too slow to be functional.

        Lastly, First Nations & non-aboriginal rural folks don’t have high speed access either, and access is the key to social equity for all Canadians.

        RW

  9. I take it by Charter review we’re not talking a SCOC reference? No surprise there. In any event, they will massage the hell out of it, cut this and that but largely leave the bill intact.

    Frankly, I don’t see any level of trial or appellate courts taking this down. IMHO, they will defer to the ultimate modifications. Redrafting the legislation: the ultimate fig leaf and legal cop out.

    • Peter Williams says:

      So Trudeau wants a legal review. After the JWR affair, the “reviewers” know exactly what happens if they bring in an unfavourable to Trudeau review.

  10. Campbell says:

    When you say “the CRTC should go back to managing wireless spectrum”, do you mean things like the wireless spectrum that delivers the internet to my cell phone?

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