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Joanna Baron and Christine van Geyn: COVID-19 proved why free speech must be fiercely protected

Commentary

As part of a paid partnership, this month The Hub will feature excerpts from this year’s five shortlisted books for the Donner Prize, awarded to the best public policy book in Canada. Our podcast Hub Dialogues will also feature interviews with the authors. The winning title will be awarded $60,000 by The Donner Canadian Foundation on May 8th.

The following is an excerpt from Pandemic Panic: How Canadian Government Responses to Covid 19 Changed Civil Liberties Forever (Optimum Publishing International, 2023).

Artur Pawlowski is a pugilistic street pastor and the founder of Street Church Ministers based in Calgary. He has never exactly been a shrinking violet and has embraced some truly kooky views.  Perhaps because of this, his conduct was countered with one of the most brazenly unconstitutional instances of a judge proscribing compelled speech in any Western democracy. 

When the COVID-19 pandemic hit, Pawlowski quickly became an outspoken critic of public health measures. As lockdowns and other public health measures dragged on, Pawlowski ramped up his incendiary actions. During Easter 2021, police visited his church following reports that it was flouting public health and social distancing orders. In a viral video, Pawlowski shouted at the police, “[g]et out! Get out immediately! Gestapo is not welcome here! Do not come back, you Nazi psychopaths! Detaining people at the church during the Passover!” On that occasion, police left, and no tickets were issued, but Pawlowski was arrested in May 2021 for organizing an in-person gathering during a brutal third wave of the virus. 

In 2021, after being found in contempt of court, alongside his brother Dawid, for violating a court order “directed at mitigating the risk posed by the novel coronavirus (COVID-19).” 

Shockingly, among the sanctions imposed on the two brothers by the Alberta Court of Queen’s Bench was the condition that whenever either brother criticized Alberta Health Services orders or recommendations, they must recite the following disclaimer:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms. 

This unusual order quickly raised concerns about its validity under section 2 of the Charter, which protects freedom of thought, belief, opinion, and expression, including the right to be free from compelled speech. “I said, I will not obey this court order,’” Pawlowski told Fox News at the time, before the order was stayed upon appeal. “I refuse to obey a crooked judge’s order. He’s not a judge, he’s a political activist.”  

Section 2 of the Charter guarantees Canadians the freedom to peacefully assemble, and to express themselves politically, and specifically protects the right to political dissent. The guarantee is content-neutral. Nonetheless, governments, and other government-sanctioned bodies such as regulators and administrators, implemented policies that had a chilling effect on free expression throughout the pandemic and directly restricted the right of Canadians to peacefully assemble to express their grievances with COVID-19 policies. 

Freedom of expression and peaceful assembly are fundamentally important to the functioning of Canada’s liberal democracy. They guarantee that Canadians can peacefully organize and express themselves in matters relating to public policy. Without these rights, governments would be free to act unopposed, and their policies, including unjust policies, would be uncontested. Without healthy questioning of authority, we can never be sure that the government is doing what is in our best interests and whether the evidence for their positions is sound.

Political expression is considered core expression, and as such can only be restricted for the most substantial and pressing government objectives, unlike other forms of expression such as pornography and advertising, which are marginal to the goals that underlie protecting free expression. 

There are at least three reasons why freedom of expression matters. First, it promotes truth-seeking: there can be no advancement of knowledge and testing of ideas without open discourse. Second, it is a condition necessary for the flourishing of democracy since there can be no political dissent and thus meaningful democracy without free expression. And third, free speech promotes individual autonomy since we develop as rational beings through unencumbered expression. 

Compelled speech has attracted particular attention by constitutional scholars for a number of reasons. The exchange of information and functioning of discourse depends on the basic premise that expression reflects something authentic to the individual. Once that perception is broken by an apparatus of the state prescribing words that we must say, we become fundamentally cut off from an important source of truth. Moreover, compelling speech appears to run dangerously close to compelling thought. Philosopher Charles Taylor wrote that language gives form to our feelings and ideas and brings them “to fuller and clearer consciousness.”  

People protest and march on Wellington street against COVID-19 health measures during Canada Day in Ottawa, Ontario, on Friday July 1, 2022. Lars Hagberg/The Canadian Press.

The COVID-19 pandemic was the first in history that saw the conjunction of viral contagion and fast-moving social networks. Information spread even faster than a highly infectious virus, and even the most pro-free-speech countries resorted to measures that ordinarily they would reject as unconstitutional limitations on expression in a free society.  

In selectively censoring narratives that were critical of the dominant government response to the virus, governments undermined their own appearance of partiality and potentially even reinforced scepticism about the authority of public health. 

On the one hand, it’s clear that given the firehose of information that erupted early on in the pandemic, some streamlining of which facts could be relied upon and which could not was necessary. And the social media platforms are private companies, not governments. As civil libertarians, we tend to think that private companies, no matter how widespread their influence or how vital a role they play in society, ought to be able to make their own rules. Alternative social media platforms such as Rumble were available for those who did not wish to get their information on platforms that restricted content.  

However, when a restriction on speech is ultimately backed by government coercion, as in the case of a judicial order forbidding individuals from protesting or even communicating about the possibility of protesting online, or of a regulatory college policing the social media content of its member physicians, it’s different from a private actor’s decision. You may have a right to delete your Facebook account if you don’t like the platform’s policy on posting about COVID-19, but you don’t have a right to ignore a judicial order or law. Thus, only restrictions on speech that are both demonstrably necessary and sufficiently tailored should be acceptable under the Charter, particularly when the speech in question is political and thus at the core of the guarantee of free expression. 

Kent Roach: Canada’s wrongful conviction problem isn’t getting the attention it deserves

Commentary

As part of a paid partnership, this month The Hub will feature excerpts from this year’s five shortlisted books for the Donner Prize, awarded to the best public policy book in Canada. Our podcast Hub Dialogues will also feature interviews with the authors. The winning title will be awarded $60,000 by The Donner Canadian Foundation on May 8th.

The following is an excerpt from Wrongfully Convicted: Guilty Pleas, Imagined Crimes and What Canada Must Do To Safeguard Justice (Simon and Schuster, 2023).

Since my first year of teaching criminal law in 1989, I have used a case study of how Donald Marshall Jr. was wrongly convicted of murder in 1971. The case study replaced my colleague Marty Friedland’s previous case study of Steven Truscott, who was sentenced to death in 1959 when he was fourteen years old. Truscott was finally acquitted with help from Friedland’s daughter in 2007 of the still-unsolved murder of a classmate. Both Marty and I wanted our students to study un-true crime as well as true crime. They need to know that the “facts” presented in the appeal court judgments they read are contested. Sometimes these facts are not true.

Both the Marshall and the Truscott cases were who-done-it? murders that convicted the wrong person. Many people continue to associate wrongful convictions exclusively with the mystery of “wrong-person wrongful convictions.” These convictions are a staple of true crime novels and movies. But wrongful convictions are not entertainment. They are about human mistakes and human suffering. These types of wrongful convictions still occur, but we now know about other, even more insidious types of wrongful convictions. 

False guilty pleas

The vast majority of Canada’s remedied fifteen guilty plea wrongful convictions have involved women, Indigenous or other racialized people, and those with cognitive difficulties. Their stories need to be understood to ensure that we do not blame victims for making understandable choices. Canadians need to understand the hard truth that sometimes a false guilty plea to accept a deal to a reduced sentence is a completely rational decision.

Imagined crimes

In some cases, people plead guilty or are convicted after a trial even though there was no crime.  In other words, they are convicted of un-true crimes that are imagined by police, prosecutors, expert witnesses, judges, and juries. Such imagined crimes constitute twenty-eight of the eighty-three wrongful convictions presently in the Canadian Registry of Wrongful Convictions. In seven of these cases, the victims of the justice system’s unfounded suspicions were Indigenous. They include two Indigenous men and one Indigenous woman who were wrongfully convicted of murdering young children in their care when the children died from undetermined causes or by accident. The racist stereotype of Indigenous people as bad parents prone to violence is unfortunately as old and pernicious as the residential schools.

The stories contained in the Canadian registry of wrongful convictions have made me more disillusioned about the Canadian criminal justice system than I was as a younger law professor. I am not, however, completely disillusioned. Not yet. Canada can do better to prevent wrongful convictions, though we will never eliminate them. The Supreme Court recognized that in 2001 when it wisely took the death penalty off the table. We know that wrongful convictions are inevitable. This makes it imperative to find quicker and better ways to correct them and to attempt as best we can to make amends for the incalculable damage they cause.

During the summer of 2021, I was privileged to assist Justice Harry LaForme and Justice Juanita Westmoreland-Traore as they conducted public consultations about how best to improve Canada’s approach to discovering and correcting wrongful convictions Under the existing system, applicants who have exhausted their normal appeals must apply to the federal minister of justice for what is described in the Criminal Code as the “extraordinary remedy” of a new trial or a new appeal. They must effectively identify new evidence to justify their applications, though most of them will lack the funds and the necessary powers to find the new evidence. Crucial evidence may, moreover, be buried in police and prosecutors’ files or even destroyed.

During the COVID-19 pandemic, Zoom allowed us to hold forty-five roundtables that involved 215 people including 17 exonerees. The exonerees told us they did not care for the federal government’s proposed name for a new review body, the Criminal Cases Review Commission, even though this same title is used for similar bodies in England, Scotland, Norway, and New Zealand. They pointed out they were people, not criminal cases. They wanted their convictions reinvestigated and retried. They did not want their cases to be the subject of desktop reviews by bureaucrats in Ottawa. They also told us about the inadequate support they received. Many of them obtained no compensation for the injustice they lived. Those who did obtain compensation often had to wait years. They generally had to threaten to sue or actually sue in court the governments that had wrongfully convicted them.

Whereas previous Canadian commissions of inquiry greatly admired the English Criminal Cases Review Commission, which has been operating since 1997, we heard it has suffered from massive budget cuts that have increased caseloads and required most applications to get nothing but cursory reviews.

We were impressed by the New Zealand commission, created in 2019. We spoke to its chief commissioner as well as with two Maori commissioners. They genuinely wanted to treat applicants, including those from the over 50 percent Maori prison population (compared to 17 percent of the population), with more respect and dignity than these people received from the rest of the criminal justice system. At the same time, we also heard alarming concerns that the New Zealand commission was already overloaded with applications.

The uncertainty surrounding the full implementation of the report is one reason why I agreed to write this book. New legislation to establish a new commission has the potential to be the most important law reform with respect to wrongful convictions in a generation. At the same time, if the new commission is underfunded and does not have sufficient powers, the situation could possibly become worse for the wrongfully convicted. At the very least, the hopes that David Milgaard and other exonerees had for the commission would not be realized. The stakes could not be higher.

Another reason I am writing this book is that the wrongful convictions that have been unearthed and described in the Canadian Registry of Wrongful Convictions should be better known. Even recently corrected wrongful convictions are not well publicized or known. Without the clear-cut stories provided by DNA exonerations and a thriving investigative media, wrongful conviction amnesia may be setting in.