Gavin Tighe (00:02):

Immediately when you go to attack the individual rather than the argument. I think when I hear that, that that's an admission that you lost.

Stephen Thiele (00:12):

Right.

Gavin Tighe (00:15):

Hello and welcome to the next episode of Beneath the Law. I'm Gavin Tighe here with Stephen Thiele once again, Stephen, bright, sunny day here in Toronto.

Stephen Thiele (00:24):

It's a great day here in Toronto. How are you doing, Gavin? I'm doing

Gavin Tighe (00:29):

Okay. I think that a lot of people were a little rattled this week by the events in Utah, or the event in Utah, the assassination, horrific assassination of Charlie Kirk, who I had heard of to be fair and listened to a little bit, but not a huge follower of any of this. But I mean, I think it is turned into a really shocking to my mind episode. I think that stepping back from it, some of the reactions to it online where people were celebrating his death,

Stephen Thiele (01:13):

I found that really quite

Gavin Tighe (01:14):

Shocking. I mean,

Stephen Thiele (01:15):

Well, I find it disturbing. I was watching actually a video this morning just following the shooting after, or immediately when it happened, somebody in the crowd is jumping up and pumping their fits, like celebrating that he had been shot. And it's just unbelievable. Like

Gavin Tighe (01:41):

No, it's a sad kind of commentary on a lot of things. And look, step back from this for a minute. We do this podcast, we have opinions, we say things probably that a lot of people don't agree with, some people agree with us, some people don't agree with us. Some of our opinions are smart, some of our opinions are stupid. But that's what the nature of opinion is, right? Opinion is about. I have a point of view, I say what it is, you disagree with me, fine. Maybe we have a debate or an argument and we both come away from it moderating our view a little bit, maybe learning something or thinking about it from a different perspective. That to me is the nature of debate. And we both make a living in the adversarial system of justice, which is to say there are two sides of two maybe more sides of an issue that lawyers get up, we argue the case, we debate the issue, and a judge makes a decision one way or the other.

(02:47):

But the adversarial system is predicated on the notion that there are two sides to the story, two sides to every issue, two sides to be argued, two sides to be heard. Everyone is given their opportunity to be heard and decisions are made. The notion that there cannot be another side. And if you say something I disagree with that I'm going to kill you, to me is so horrific in the sense that it attacks what is the fundamental aspect of any democratic system, which is to say there are different points of view, and lemme put it together differently. The democratic system that is about choices, it is about, I say that so-and-so should win. You say, no, it should be this person. There's got to be by definition more than one name on the ballot or so you don't have much of a democracy. The notion that there can only be one point of view, and if I disagree with your point of view, I'm going to kill you. That is terrifying to me. And if that seems to have been celebrated in a lot of ways and agree or disagree with some of the things that Charlie Kirk had to say, he had the right to say them, and he had a right to think them, and you have a right to disagree with them or you have a right to agree with him. But if he's dead and silent, all of that is gone.

Stephen Thiele (04:16):

Well look, Tyler Robinson, who's been accused of the shooting, and I think it's quite clear in terms of he seems to be the shooter, obviously he'll get his day in court and we don't know what he will plead. But Gavin, you stole the words out of my mouth. What happened was completely Charlie Kirk had his opinions to many, I guess they were viewed as being controversial opinions on things like gun control, abortion, promoting Christian nationalism, but he had the right under us constitution. If he was in Canada, he'd have the protection of freedom of speech to express his beliefs and opinions. And for the person, Mr. Robinson, to shoot him and kill him is just so tragic and horrific and does not speak well right now to society because we're seeing a lot more aggression and people inciting aggression just because you disbelieve what somebody else has to say and what their political viewpoints are.

Gavin Tighe (05:42):

Yeah, I think to me it's the intolerance of opinion that one does not necessarily agree with that is really, really troubling. I think it's an offshoot of a lot of what we see in debate. In debate. I always think that one of the surest admissions of a weak argument is when someone turns it into what it referred to an ad ho attack, an argument is made and Oh, well, yeah, well, you're an idiot. I mean, maybe I am, but that doesn't mean my argument is wrong. And immediately when you go to attack the individual rather than the argument, I think when I hear that, that that's an admission that you lost,

Stephen Thiele (06:36):

Right?

Gavin Tighe (06:36):

Because as soon as you need to revert to that, I know that you've got no comeback. You can't address the argument, therefore you have to attack the individual. So we see, and I've seen it a lot and I've noticed it, and I find it very, very troubling, but certainly in a case when you're arguing a case as soon as the other side starts to turn and make comments about you or Oh, well, yeah, or call your client names or they've lost the argument to my mind because they cannot address the points that are an issue. They have to try to revert to ad ho and an attack of personal attacks. And I think this is just the next offshoot of that. So we see this a lot now in common parlance where people are anyone, oh, he's a fascist or he's a racist, or he's a this or that.

(07:31):

I mean, it's a name calling because they can't address the argument and love him or hate him. And actually, I guess ironically, I think that this whole event has made people tune into Charlie Kirk probably a lot more than they did before. If he was listened to before, he's gone exponentially larger now. But one of the things you love him or hate him, one of the things that he did was say, debate me. Okay, you have a point of view. I have a point of view. Hash it out. And that invitation to open debate was such a sign of strength and conviction in position is very persuasive when you turn around and say, oh yeah, well, you're a fascist. I mean, that is an admission that you got nothing. You got nothing. You can't come back at that. Once you revert to name calling, it's over.

Stephen Thiele (08:23):

Right. And look, I mean the whole fundamental foundation of democracy is to have that open debate, to understand a person's position, and then perhaps come to a compromise on a position, or you basically agree with the other person's position that their position is much more correct one,

Gavin Tighe (08:50):

Or come to some refined or hybrid view. I think that the reality of debate and argument is what we do for a living, but it is sure, it is a confrontational, yeah, it's confrontational. But the ability to understand the way to win an argument is to understand the other side's position. The way to win an argument is not just to blather your talking points, it is to understand what the other side is saying. Understand the weaknesses in your own side and the strengths on the other side, and attack their strengths to buttress your own weaknesses. That's argument. And you have to do that in somewhat of a dispassionate fashion. But I mean, running away from the argument by calling people names or even worse resorting to violence, is it admission in my view that you've got no merit in your argument otherwise you wouldn't need to do that?

Stephen Thiele (09:57):

Yeah. And Gavin, I think the reality is we're beginning to see a period once again where violence seems to be the reaction to the expression of political opinion. And it's unfortunate. We saw that certainly in the 1960s, there were a number of assassinations of non politicians, Martin Luther King, and

Gavin Tighe (10:26):

Yeah,

Stephen Thiele (10:26):

I think that there's

Gavin Tighe (10:28):

A great, forget the point that what you think of their views and the arguments that they were making, the arguments made by Martin Luther King in the 1960s with respect to segregation and rights of African-Americans were hugely controversial, hugely, hugely controversial. I mean, we've seen the videos of Selma, et cetera. He was extraordinarily controversial views that a lot of people didn't agree with. And we may look at it back now and think, how could you not agree with that? But had he not had the courage and ability to express those views, where would we be as a society? He advanced society because we had debate. He ameliorated people's views, hearts and minds changed as a result of the words of Martin Luther King. And I think that hearts and minds changing is the ultimate fruit of debate.

Stephen Thiele (11:38):

I agree a hundred percent with that. And again, these are all tragic events and we're just seeing history replay itself in the us. But our producer, Doug Downs here asked us some very interesting questions in terms of digging into the law with respect to the shooter in terms of what charges the shooter might face, should the university be held liable, or do they have some potential exposure because of the shooter being on the rooftop, inadequate security potentially, which resulted in Mr. Kirk's death. So some interesting points, I think for Mr. Robinson, if I understand it, at the time of this recording, the charges haven't yet been made public, but from what I understand, under Utah law, they are looking to charge him with what is called aggravated murder because they are looking at the death penalty for him. And in the US you can have both state charges and federal charges. In Canada, you'd just be looking at, I guess a first degree murder charge. This was premeditated. There's no question about that.

Gavin Tighe (13:09):

There's no question of premeditation here. I mean, any argument, you don't bring a high powered rifle with a scope and get on a roof with an intention to kill someone.

Stephen Thiele (13:21):

Right? But we don't have the death penalty in Canada. So if it happened here, you wouldn't see

Gavin Tighe (13:26):

That. No, no, you would not. I mean, terrifying as that may be. I don't know that the death penalty matters. And I do think that there's an enormous so similarity between just the logistics of this assassination and the Trump attempted assassination. I mean, they're both young white men using high powered rifles from rooftops at a public gathering. I mean, if this was in a copycat, I dunno what is, if this one was a better, unfortunately for Mr. Kirk was a better shot than the Butler assassination attempt on the President Trump. But this is pretty shocking. This is a pretty awful issue. I mean, in terms of liability, let's think about that. We're talking about civil liability of the university. If there was some sort of wrongful death suit brought by the Kirk Estate with respect to this, did the university have any obligation to protect Mr. Kirk from a tort perspective? I think I have some difficulty with that. Was this foreseeable? I dunno, as if

Stephen Thiele (14:42):

I guess it might be. Well, it's an interesting question. I mean, we don't necessarily know all the factual details. Did the shooter phone the university and say, oh, there's going to be some kind of a wild event taking place today. He certainly engraved bullets. So who knows what happened. There was police security at the event, but it was an outdoor event. As you say, Gavin, I mean, president Trump, the assassination attempts on him have been both outdoor events. One a speaking event there in Pennsylvania and the other had his golf course.

Gavin Tighe (15:25):

Yeah, the one in Pennsylvania I think is right on.

Stephen Thiele (15:27):

Yeah,

Gavin Tighe (15:27):

Logistically young guy on a roof right off a rifle and takes a shot. That's the same facts, isn't it? At least as we understand them

Stephen Thiele (15:37):

Currently. Well, and as I understand it, Charlie Kirk was the subject of numerous death threats.

Gavin Tighe (15:43):

He must have been.

Stephen Thiele (15:44):

So did the university know that? Was there a discussion between his organization? Who knows? This is what's really troubling though. This is one of the things, I think

Gavin Tighe (15:53):

The chilling effect of civil liability. If that argument could be made that the university had a duty of care to Kirk to provide adequate security, what does that mean? I think when you see what Kirk, the whole exhibit that he did, exhibit is a bad word, sorry, but the whole shtick, if I can call it that. He was in an open space. You got on a mic on one side, he got on a mic on the other, and you guys had it out in a public forum in front of a whole group of people. That's what he did. So if you had, well, the university now has to tape a card. What does that mean? They put bulletproof glass between Kirk and the audience. Well, that's the end of that. That takes away from completely what he was doing,

Stephen Thiele (16:50):

The interaction with the crowd.

Gavin Tighe (16:53):

Have you not succeeded in chilling the dialogue of debate with the precaution because there's a threat that someone is going to do something like Mr. Robinson appears to have done last week to Mr. Kurt, and then they win. I mean, then the debate is over, and then the opportunity to have that free exchange of ideas is over. I mean, I really do think that there are chilling effects to civil tort liability that sometimes have a negative impact on public policy. So I would think that there would be a strong public policy argument to say that Mr. Kirk, and this is, take this the wrong way, but in a legal sense, understood the risks of what he was doing and freely took those risks.

Stephen Thiele (17:40):

Well, from a negligence perspective, if we looked at it from that viewpoint, maybe some contributory negligence there, but, well, I think it's more than that, but perhaps there's a contract between the university and Charlie Kirk's organization as to who's responsible for there is security.

Gavin Tighe (18:00):

I mean, he wouldn't have been able to, there must have been a release of liability agreement. But I mean, I think it comes back an important concept in tort law is if Kirk understood the risks that he was taking by engaging in the type of activity he was engaging in. You mentioned he had lots of death threats. I would be surprised if he didn't, quite frankly, in this day and age particularly, and he willingly proceeded. I mean, there's a concept in law called Valenti non FITT and jury, which means a volunteer can't be injured. And that means simply that if you agree to the risks that you take, you cannot then hold somebody liable for something that happened as a result of a risk you agreed to take.

Stephen Thiele (18:50):

Well, now I'm going to throw this out to you. How did Mr. Robinson get access to the roof?

Gavin Tighe (18:56):

Great question.

Stephen Thiele (18:57):

If the Utah University didn't have things in place to prevent someone from getting access to the rooftop, is that a potential for them to have some exposure to liability?

Gavin Tighe (19:11):

I mean, the video of him exiting the roof was just unbelievable. But supposedly he gained access through a staircase. So there was a staircase to a roof unlocked.

Stephen Thiele (19:26):

Right? Right. The door was unlocked. I can tell you, Gavin, I'm involved in a situation where somebody gained access to a rooftop at a hotel and fell down the roof and basically, I think broke their legs or whatever, may have suffered some kind of paraplegic injury and is suing the hotel because this person, although they were, I think inebriated at the time, gained access to the roof by walking through an unlocked door and then falling off the roof.

Gavin Tighe (20:01):

The tort of protecting people from their own stupidity is well known. Yeah, no, and there are certainly many, many situations like that. I mean, I think that from a public policy perspective, there's oftentimes, from a personal injury side, they're looking for some sort of ability to compensate this individual who, I don't know what their injuries are like, but certainly for debilitating injury, that they're looking for some sort of funding mechanism to compensate them to look after them. But here, I mean, this is a wrongful death suit. I think there's a whole series of public policy issues engaged in it. But I agree that there are certainly many lawsuits out there against property owners for failing to have adequate protections around dangerous sites. So for example, pool offenses and pools. If someone drowned, got into a backyard like a child, gone into a background and drown in a pool, there could be a lawsuit that defenses were not sufficient to keep that child out of the backyard. So that we see lots of cases like that.

Stephen Thiele (21:16):

Well, and we see them in sports too, where a hockey arena hosts an event and then there's a violent act that takes place. Is the arena responsible for some player injuring another player because of the violent act that takes place? So there's certainly, venues can be held liable in certain circumstances. I think you have to have the right facts with respect to that. But it's certainly an interesting question that arises out of this shooting because it took place on the university campus, and one would expect that there'd be security there. It was from a rooftop. Why wasn't there a drone that was patrolling the rooftops? And as we've seen with the Butler assassination attempt on President Trump, this seems to be the modus operandi these days. Find a rooftop and use a rifle with the scope.

Gavin Tighe (22:15):

Yeah, I mean, there's been a lot of talk about the shooter and the shootings, and apparently, and I have no experience, and certainly not an expert in firearms of any stretch of the imagination, but I've understood that was not a difficult shot to make, that the distance and the elevation and the angle was not particularly difficult. So if that's sort of an obvious spot that someone could be perched at, and in fact they were, I mean, I think there were video, I've seen video of him running along the rooftop before the shooting when he was up there. So there was nobody clearly watching this. There was a brief video of you could see a figure running across the rooftop. So he was visible. And that's very much like the butler shooter. He was visible too. I mean, I think that there's a major breakdown there. I mean, that was the secret service as a obligation too. And Trump had security with him at the time. But I guess Kirk was a private individual and he was responsible for his own security. So your point is, did the university have some obligation to secure that site, given the foreseeable risk of a shooter, maybe?

Stephen Thiele (23:37):

Well, yeah. Well, and it raises this question. Let's say the Utah University in this circumstance is not responsible because it was not foreseeable. What happens now in the future? Right. Well, I think

Gavin Tighe (23:51):

It's foreseeable. I think it's clearly foreseeable that I think that butler, but I mean, its foreseeable about anyone. I mean, any controversial figure, any political figure. I mean, people hate

Stephen Thiele (24:07):

People and it only takes one

Gavin Tighe (24:09):

Shooter, right?

Stephen Thiele (24:10):

But I think that's the point that I'm trying to make is do universities now, or are universities required to adjust their protocols to not have outdoor events and to have them indoor to prevent this kind of a shooting? You can't shoot from a rooftop in general into a room, although I guess you could still do that if it has windows and stuff. But

Gavin Tighe (24:38):

Yeah, I mean, I think it's an interesting point. The other civil liability questions that have come out of this is I think the aftermath of it. The reaction of some people, I personally find abhorrent to celebrate the death of anyone. But I guess with limited exceptions, but I mean, there's been a number of people that have been relieved of their employment for celebrating online. That was a professor at UFT who had left comments sort of, I guess, condoning the assassination. And they've, they've been terminated or have they been put on leave of absence?

Stephen Thiele (25:22):

The University of Toronto professor was put on a leave of absence. We've had the teacher at the TDSB has been put on some kind of temporary leave of absence as well for showing a video to her students or his students, I'm not sure.

Gavin Tighe (25:41):

In school. Yeah, in school, yeah. So I think it's a fundamental distinction between those two.

(25:46):

Right? Yeah, I mean, I think that this is really where I draw the line. I mean, I think, I wonder what the thinking is of people that celebrated this, but again, you can't say that you're entitled to, we believe in free speech and you're entitled to opinion and not say that they're entitled to their opinion. And I guess from the UFT professor's perspective, this was not something they did in the classroom or in the lecture hall. This was something they did on their own time, on their own personal social media profile. And I guess the reality is just because you're a professor at UFT, does that mean that you're not entitled to your own opinion? I dunno.

Stephen Thiele (26:29):

Well, and who knows whether they're account, whether it was a Twitter account or X account profiles them as a UFT professor. It obviously came back to University of Toronto. I think actually one of the government ministers said that it was inappropriate for what this professor had posted.

Gavin Tighe (26:51):

Yeah, I mean, look, but that may be, so my point is that just because I have a job, does that mean I'm not entitled to a personal opinion? I mean, maybe, I guess it depends on the job, but certainly people are entitled to their personal opinions and they're entitled to express their opinions. But I guess the reality is that while you're free to express your opinions, sometimes your expression has consequences. And here it was an employment, I don't know. I have trouble with it. I have trouble with the opinion. I don't like the opinion. I don't share it in any way, shape or form or celebrating the death of anyone.

(27:30):

But at the same time, I believe in freedom of speech. And I believe that you're entitled to have opinions, and I want to hear your opinion because that lets me know who you are. I would prefer to know who someone is. I would prefer to know that this professor is ghoulish, frankly, in the celebration of the death of someone. I want to know that because, so I could avoid taking their course, for example, if I were a student. And if they weren't entitled to express their opinion, I wouldn't know that. So freedom of expression to me has all sorts of benefits. One of which is you get to know who you're dealing with. And I query again, and I wonder whether or not, wouldn't it be better to expose people with this morbid view than to let them lurk kind of clandestinely and do what they do and influence young minds without knowing that?

Stephen Thiele (28:29):

Yeah, no. Well, look, it raises some interesting employment questions in the academic circle especially. And then we had a Canadian who was falsely accused of being the shooter, right? Would he have a defamation claim against somebody? Because the way that things work now on the internet, everybody's doing their own investigation. Who is the shooter? Let's identify him. Oh, it must be that poor Canadian guy. He looks like he's dressed the same. And then that gets around and all of a sudden, yeah, that

Gavin Tighe (29:05):

Was Rod. He was an older gentleman. His image was plastered in his seventies place for a very brief point of time. And I think he was physically brought down by law enforcement at the time. I think there were videos of that too. I don't know that he would've certainly, I don't think he would have a, there's no defamation claim against law enforcement for

Stephen Thiele (29:27):

No, but whoever posted online identifying him as the shooter, would that be defamatory? I mean, he's being then accused of a crime or being a suspect in a crime without any facts. And then I think Gavin, it's interesting in terms of, to me, Charlie Kirk shooting seems to have been, there might be some hate motivation there. Obviously there was disagreement. Is it terrorism? Well, there's the terrorism aspect, but now Canada is looking at adopting some new hate crime laws to protect religious sites and cultural buildings. If you intimidate or obstruct anybody from entering certain places, that now is going to be a criminal offense.

Gavin Tighe (30:17):

Right? Well, so one thing, Doug Downs, our producer raised an issue that lawyers are often on the vanguard of unpopular opinion and representation of unpopular individuals. And probably few people are in that position more than defense attorneys who often have to act for the most unpopular in our society, the most reviled in our society. And I wonder, I think it's very important for the bar to have the courage to continue to advocate for unpopular people and unpopular opinions. And I think that this is a moment where everybody's kind of looking in the rear view mirror and saying, wow, is my life in danger because of what I'm doing?

Stephen Thiele (31:06):

And look, we've seen it before with respect to lawyers representing a client in a very acrimonious disputes. We've had a lawyer in Toronto who was killed by the party on the opposite side, ran him over in the garage. We had the shooting incident, this is years ago at Osgood Hall in downtown Toronto. And I think they still have the bullet holes in the bench there in the courtroom where that happened. But look, this shooting has a chilling effect on that. And do you really want to take that on as a defense lawyer and represent an unpopular client when they are entitled to legal representation?

Gavin Tighe (31:54):

Right. I mean, I think that it's the real courage of the bar to oftentimes advocate for views or people that are incredibly unpopular. That is a very, very difficult thing to do. I mean, people ask that question all the time. Well, how could you act for so-and-so? Or how could everyone is entitled to their defense? As I said, everyone is entitled to the other side of the story. It doesn't mean it's going to win. In fact, what it leads to often is the right result. Because what it is not is that no one is bulldozed over anything in terms of they get their opportunity to melt their defense. They have the access to people who have knowledge of the system, who have knowledge of the legal process to advocate on their behalf. And the result invariably is better for that process. The better the defense counsel, the better the outcome of the trial, the more solid the finding is.

(32:56):

When people have no ability to defend themselves, the verdict is meaningless. I mean, having a debate, having the contest leads to the right result more times than not. And I think that the bar and lawyers in particular, and young lawyers, law students, it's a difficult profession. And you are going to make arguments that you may not necessarily personally agree with, but you are there to champion a side and you are there to serve the client. You are not there for yourself. That's a difficult thing to do. And I think the public needs to understand the critical importance of the role of the bar and lawyers to advocate for people that aren't popular. Mr. Robinson will hopefully have a very, very good attorney who will advocate his position and people will say, how can he have a lawyer? How can he not? Once you've thrown that out the window, I think that everything Charlie Kirk is talking about is thrown out the window with it. He was all about debate. He was all about hearing the other side of the equation and contesting it in the field. That's what lawyers do every day.

Stephen Thiele (34:16):

And Kirk was not advocating violence. So look, Mr. Robinson is still presumed innocent until he's found guilty or pleads guilty, and he's entitled to his defense,

Gavin Tighe (34:31):

Right? And a lawyer should be there to mount it.

Stephen Thiele (34:34):

Absolutely.

Gavin Tighe (34:37):

It is very interesting to me that this individual is been arrested, and I would be most interested, I will be interested. I'm assuming that we will find out something of what went through this young man's mind to put him in the position that he's in right now, and put us all in the position that we're in right now. And I really do think that, I hope it is a watershed moment for taking down the temperature and the intolerance of opposite points of view. And once again, re-engaging in debate aimed at improving frankly, both sides of the argument and learning from different points of view. But I don't have a lot of hope for it. I got to tell you, I think the temperatures turned up not down.

Stephen Thiele (35:36):

Well, I agree with that, and that's my concern, that more and more people are becoming entrenched with their political views. And when there's disagreement, they're taking things into their own hands and aiming at targets rather than aiming at the arguments.

Gavin Tighe (35:58):

Very, very troubling times. We live in my friend. Anyways, hopefully we can say that no one is above the law and everyone is beneath it because it matters. The rule of law matters. The ability to have both sides of an argument heard matter, and I think that we need to all be beneath the law a little bit more.