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Scrutinizing the human rights machine
Commissions' challenger has unlikely allies
Joseph Brean, National Post Published: Saturday, March 22, 2008
Next Tuesday, at the Canadian Human Rights Tribunal in Ottawa, one of
Canada's most prominent white supremacist propagandists, backed by the
legal team that defended Holocaust-denier Ernst Zundel, will put the
country's entire human rights bureaucracy on the witness stand.
After months of closed-door wrangling, a constitutional challenge, an
appeal
to federal court and a blizzard of legal motions, Marc Lemire can now
interrogate, under oath, two investigators of the Canadian Human Rights
Commission about why they posted provocative comments on his and other
ultra-conservative Web sites. Much credibility hangs on their answers.
The curious thing about the hearing, which will make it a crucial moment
in
the history of Canadian human rights law, is that Mr. Lemire, the last
president of the now defunct neo-Nazi Heritage Front, enjoys the qualified
sup****t of a Liberal MP, PEN Canada, the Canadian Civil Liberties
Association -- even a leader of B'nai Brith Canada.
These groups all agree he is charged under a law -- section 13.1 of the
Human Rights Act, which says it is discriminatory to communicate by phone
or Internet any material "that is likely to expose a person or persons to
hatred or contempt" -- that is too easily exploited by agenda-mongers and
is enforced by a quasi-judicial system that desperately needs revision. In
the hands of adjudicators with limited legal training, poor investigatory
resources and naively good intentions, critics charge that the power of
section 13.1 is being abused for nuisance cases that would be rightly
tossed out of a real court.
As evidence, they point to the two prominent conservative journalists who
have recently been charged with the same violation: Ezra Levant of the
defunct Western Standard and
Mark Steyn of Maclean's. And they point to Mr. Lemire's accuser, former
human rights commission employee Richard Warman, who is also the
complainant in more than a dozen other section 13.1 cases -- more by far
than any other complainant ever -- and wonder how one man could be so
widely aggrieved. They also note his 100% success rate.
Liberal MP Keith Martin, who has put forth a motion to scrap section 13.1,
says it seems unfair that "someone could be using the power of the state
for their own private initiative. I don't want to use the word pogrom, it
would be too strong. One person's private crusade."
Mr. Martin describes the legal test of "likely to expose" as "a hole you
could drive a Mack truck through," and said it is being applied by "rogue
commissions where a small number of people [are] determining what
Canadians
can and can't say."
This week, his caucus colleague Irwin Cotler, a noted human rights
scholar,
floated (but did not endorse) the idea that section 13.1 cases should
require the authorization of the attorney-general, just like criminal
prosecutions for inciting violence or promoting hatred.
Critics of section 13.1 argue that its ostensible purpose -- the silencing
of a few fringe racists by means less extreme than a criminal
prosecution -- presents a dangerous challenge to the constitutional right
to free speech. They say allowing for the type of offensive speech it
targets is the price we pay for free and open discourse.
Alan Borovoy, general counsel for the Canadian Civil Liberties
Association,
gives the example of Hitler's Willing Executioners, a book by a Harvard
historian that alleges the complicity of German civilians in the
Holocaust,
a thesis that is arguably "likely to expose" German people to contempt.
"To what extent might it then become an offence to tell the truth about
the
Holocaust? And that's the thing about these sections. Intent is not a
requirement, and truth and reasonable belief in the truth is no defence,"
he said.
Mr. Martin, the Liberal MP, said some of history's most im****tant
ideas "were originally deemed to be sacrilegious and certainly in
opposition to conventional wisdom. Who's to say that a commission cannot
rule those ideas out of order and penalize people for saying or thinking
them?"
Such comments reflect a growing public skepticism about human rights
commissions (there are provincial ones as well as the federal one, and
each
has a separate tribunal to decide cases that cannot be mediated) that is
even wider than section 13.1.
It has been building in recent weeks as the Levant and Steyn cases gained
attention, and columnists and bloggers sought out and ridiculed the
seemingly absurd or outrageous cases, ignoring the more common mundane
disputes over housing, services or employment.
Among the notable chin-scratchers was the case against an Ontario surgeon
who refused to perform cosmetic plastic surgery on the vagina of a
trangendered woman because he had no experience with ***-changes, and the
Sikh man who was sup****ted by the Ontario Human Rights Commission in his
bid to exempt himself from the law that motorcyclists must wear helmets,
because it would mean removing his turban.
That media coverage perhaps unfairly sealed the commissions' reputation
for
frivolity. In any case, it got people talking about a topic that rarely
makes headlines.
This past week, in his trademark rant, CBC comedian Rick Mercer even stood
up for Mr. Levant, a popular conservative gadfly and "one of the most
aggravating men on this earth," and denounced the commissions for
threatening the free speech of all Canadians.
All of which points to next week's hearing in Warman v. Lemire as a
watershed moment in the history of Canadian domestic human rights law.
It is as if all the cases, legitimate or ridiculous, are to be represented
by this one, a most unfrivolous complaint against a prominent distributor
of white supremacist propaganda, which threatens to implode not only
because of the alleged unconstitutionality of the law, but because of
shady
investigatory practices.
If it does, and if skepticism of the commissions continues to grow,
sup****ters of the commissions say Canada risks throwing out the baby -- a
robust system for resolving human rights disputes that would otherwise
clog
the courts -- with the bathwater.
Times have changed a great deal since 1961, when Ontario established
Canada's first human rights commission, and the Globe and Mail newspaper
marked the occasion with the headline: "Negro appointed chairman of human
rights board."
Mr. Borovoy was one of the main agitators for the establishment of that
commission, which he said took over human rights complaints
from "over-worked civil servants in the labour ministry."
But today, he is among those who say the commissions have started to go
off
the rails.
"It just never occurred to anybody that this instrument we were struggling
to create would ever be used against the expression of opinion," said Mr.
Borovoy, who sup****ts the scrapping of 13.1.
"Although it's true that they have nailed some genuine hatemongers with
it,
it has nevertheless been used or threatened to be used against a wide
variety of constituencies who don't bear the slightest resemblance to the
kind of hatemongers that were originally envisioned: anti-American
protesters, French-Canadian nationalists, a film sympathetic to South
Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader,
Salman Rushdie's Satanic Verses, and even a couple years ago, a
pro-Israeli
speaker was briefed about the anti-hate law by a police detective before
he
went in to make a speech," he said.
In none of these cases was there a lasting conviction or property
seizure. "But only lawyers could be consoled by that," he said.
Discomfort with section 13.1 is nothing new. In 1979, two years after the
federal Human Rights Act was passed and 13.1 only applied to telephones,
it
was the section under which the prominent neo-Nazi John Ross Taylor was
ordered by the Canadian Human Rights Tribunal to shut down a hotline that
offered a recorded white power message.
He refused, was jailed for contempt, and by 1990, the Supreme Court ruled
that the section did in fact violate the Charter right to freedom of
expression, but it passed the "Oakes test," which means it is a
justifiable
breach.
Section 13.1 was extended from the telephone to the Internet in 2001, in
response to the 9/11 attacks. Now, virtually all section 13.1 cases are
Internet-based.
Among human rights activists, there remains an appetite to further extend
and strengthen the section, and all legal protections against hate
propaganda, but, as one who asked to remain anonymous said, they are
reluctant to speak up, mindful that the Taylor case was decided by the
Supreme Court's closest possible margin, 4-3, and they stand to lose more
than they might gain.
As part of his defense, Mr. Lemire is taking another kick at the can,
trying
to have 13.1 judged unconstitutional. A factum his lawyer filed with the
Tribunal describes it as "a reincarnation of the old common law offence of
seditious libel, namely, 'a matter which is producing, or has a tendency
to
produce, feelings of hatred and ill-will between different cl***** of His
Majesty's subjects.' "
Others call the 13.1 offence simply a "pre-crime," a concept from the
sci-fi
movie Minority Re****t. They say it is an excuse to punish people for
something that has not actually happened yet, but which is simply
"likely,"
or even just theoretically possible.
"How can you even defend against what might or might not happen in the
future? Of course I'm guilty because it [exposing people to contempt]
might
happen," said Ezra Levant, who is the subject of a complaint in Alberta by
a Muslim organization for publi****ng the Danish Muhammad cartoons.
"If Canada had a 100% conviction rate for murders, you don't think that
the
civil libertarians would be saying, 'What the hell? No one ever wins?' "
Mr. Levant said. "But of course it must be a 100% conviction rate because
it's a pre-crime, it's a thought crime, and truth is not a defence."
In this sense, critics argue 13.1 criminalizes vigorous dissent and is
applied inconsistently as a remedy for hurt feelings, or as oil for the
squeakiest wheels.
Mr. Levant says his experience shows that complainants can mar-shall the
forces of the state against respondents, who are then on the hook for
their
own defence. By their very nature, he said, the commissions can be
exploited for nuisance purposes. It is an opinion shared even by a
prominent complainant.
Darren Lund, an associate professor in the University of Calgary's Faculty
of Education, brought a complaint in 2002 against Stephen Boissoin, a
pastor in Red Deer, Alta., for a letter he wrote to the local newspaper
stating that gay activists are "perverse, morally deprived individuals who
are spreading their psychological disease."
He won the case last year on appeal after first losing, and said the
experience has shown him that human rights commissions are hampered by
inexperience, with problems of staff quality and legal training. He said
the current backlash in the name of free speech will be a setback for
their
more legitimate goals.
"With more resources they could do a better job of weeding out the
nuisance
cases and of investigating. My particular case was dismissed after two
years of shoddy investigation," Prof. Lund said. "If I had been a young
person who'd been ***ually harassed on the job and I realized that the
commission was the right place to go about that, this could be a long,
long
process that's really not offering anything reasonable."
In the case of Mark Steyn, a conservative polemicist and erstwhile arts
critic, Maclean's ran an excerpt of his book America Alone, which
described
a rising demographic tide of Muslims in Europe (Eurabia, as he called it)
that threatens to undermine liberal democracy. Citing this and several
other allegedly anti-Muslim articles, including news re****ts, columns and
even a book review, three complaints were brought against the magazine --
federally, in British Columbia, and in Ontario -- by a group of law
students and Mohamed Elmasry, leader of the Canadian Islamic Congress.
Naseem Mithoowani, a complainant in the Ontario case, said the case is
framed as a violation of human rights "because we exhausted all other
avenues."
"We would have preferred to have taken this to a press council or an
independent body like an ombudsperson, if that had been available," she
said. Maclean's does not belong to any such body.
She did not expect the fuss that has arisen since.
"Especially we didn't expect the human rights tribunals to come under
attack, and that's been disappointing, as a result of our complaints. But
I
think that insofar as we've created a debate about media fairness and
representation of minorities and viewpoints in media, I think it's been a
good thing."
If there is a pattern emerging in 13.1 complaints, it seems to be that the
complainants are frequently Muslims or progressives, and the respondents
are frequently Christians or conservatives.
"I don't think that it's a coincidence that we're seeing a number of
people
complaining and using the human rights commissions claiming that this is
an
attack against Islam. That's what we're seeing internationally as well,"
said David Matas, senior legal counsel of B'nai Brith Canada, who returned
this week from the meeting of the United Nations Commission on Human
Rights
in Geneva.
"To me, looking at Steyn or Levant is looking at the problem through the
wrong end of the telescope, because the problem isn't that Steyn or Levant
are being frivolously accused of something, the problem is that there is a
wave now of people doing domestically what we have seen internationally,
which is to try to use the human rights system to divert it from its true
goal," he said.
Despite the failings, he sup****ts the commissions.
"The mere fact that you've got a legal system that allows for a complaint
which is maybe wrong doesn't in itself invalidate the system. If somebody
tries to hit you with a chair, you don't blame the chair. I don't think
the
problem is the human rights commission. I think the problem is the
willingness of people to abuse human rights commissions and other
mechanisms to pursue what is not a human rights agenda. And I think the
answer to it is for the mechanisms to defend themselves against this
attack, not to self-destroy."
The lightning rod in all of this is Richard Warman, Canada's most prolific
and successful third-party human rights complainant.
Mr. Warman, who worked for the CHRC from 2002 to 2004 and now works for
the
Department of National Defence, declined to be interviewed, but
transcripts
of testimony at previous tribunals and records of his public speaking
paint
a picture of a determined anti-racism activist who pursues people he
judges
to be hatemongers with a strategy he describes as "maximum disruption."
Besides anonymous lurking in chat-rooms, frequent complaints to the CHRC,
behind-the-scenes help with commission investigations and tips to police,
this strategy has at least once involved recruiting fellow activists to
throw a cream pie at a target, David Icke, a British author whom Mr.
Warman
considers an anti-Semite.
"It's imperative that individuals and groups take steps as strong as they
can to defend human rights in Canada," Mr. Warman told the Ottawa Citizen
last year. "Because if they're not defended, they get undermined.
Eventually they get worn down through disuse. I could never bear to see
that happen."
Next week, when Warman v. Le-mire convenes in Ottawa, public skepticism
about human rights commissions will have a high-profile focus, and the
facts are awkward for sup****ters.
The CHRC tried last year to block the testimony of its own investigators
by
invoking section 37 of the Evidence Act, normally used for national
security cases, citing threats to their personal safety. Facing a review
by
a higher court, they capitulated, but demanded the hearing be closed to
the
public.
This week, however, a one-man Canadian Human Rights Tribunal, Athanasios
Hadjis, ruled firmly against the commission. He wrote that its legal
gamesman****p "gives me pause to question the soundness of the Commission's
invocation of public security concerns."
And so the very fact that the hearing room door will be unlocked is a
hard-won concession from Canada's beleaguered human rights bureaucracy. To
judge from the Internet chatter of white supremacists and merely
conservative journalists, it will be standing room only.
--
"It is proof of a base and low mind for one to wish to think with the
m*****
or majority, merely because the majority is the majority. Truth does not
change because it is, or is not, believed by a majority of the people."
Giordano Bruno
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