Categories: Andrew Coyne

Liveblogging the BC Human Rights Tribunal—Part I

So we are in, and almost ready to go. As trials of the century/year/week…

by Andrew Coyne on Monday, June 2, 2008 3:09pm - 149 Comments

So we are in, and almost ready to go. As trials of the century/year/week go, this one is decidedly down-market: the courtroom would make a good walk-in closet. Maclean’s legal team is out in force, a phalanx of half a dozen suits. The opposing counsel, by contrast, is one suit and two or three badly-dressed juniors. If I didn’t know the stakes, I’d be rooting for them. Actually I am rooting for them, in a strange sort of way. Don’t tell my employers, but I’m sort of hoping we lose this case. If we win—that is, if the tribunal finds we did not, by publishing an excerpt from Mark Steyn’s book, expose Muslims to hatred and contempt, or whatever the legalese is—then the whole clanking business rolls on, the stronger for having shown how “reasonable” it can be. Whereas if we lose, and fight on appeal, and challenge the whole legal basis for these inquisitions, then something important will be achieved. Hang on, we’re starting…

9:33 AM PST
The three member-panel has entered, chaired by Heather MacNaughton. She hasn’t gotten six words out before one of the spectators shouts out, “could you speak up please?” To her credit, she takes it in stride…

9:36 AM
The Chair is reviewing the legal history of the complaint. Apparently they have no jurisdiction over the Maclean’s website. So that’s a relief…

9:39 AM
“Proceedings before the human rights tribunal are considerably less formal than before a court,” the chair advises. Yes, indeed: unburdened by stuffy old rules of evidence, for example…

9:41 AM
We have friends: the BC Civil Liberties Association and the Canadian Association of Journalists are here as intervenors.

9:46 AM
Lead counsel for the complainants (i.e., Mohamed Elmasry and the Canadian Islamic Congress) is Faisal Joseph. Leading off for Maclean’s is Roger McConchie, a BC human rights lawyer; Julian Porter will be coming on later to do the cross-examinations…

9:51 AM
Lawyers for the two sides are wrangling now over what witnesses the complainants are going to call, and whether “my friend” had properly informed “my friend” as to what “my friend” (the first one) had planned…

9:56 AM
Oh God: they’re talking about who they’ll be calling on Friday. Five days in a windowless room. If that’s not a human rights violation…

10:00 AM
Faisal Joseph opening now…

10:03 AM
“A national media organization that consistently and persistently denigrated Canadians of Muslim origin … while refusing to offer any meaningful reply…”

Quotes from Steyn article. Cites 20 other “similar” articles in Maclean’s over a two-year period, to show “context.”

10:05 AM
Section 7.1 of the BC Human Rights Code is the relevant legal text, prohibiting exposure to hate.

Free speech, in Joseph’s humble submission, is a “red herring.”

10:08 AM
He cites a number of previous prosecutions. “The pattern is clear: those hauled before the human rights tribunal howl about censorship.” Well, yes. It’s not crying wolf if the wolf is in fact at your throat…

10:09 AM
Islamophobia is the real issue. Steyn’s article shows “multiple hallmarks of hate.”

10:16 AM
They’re going to call, among others, Dr. Andrew Rippon, professor of Islamic Studies at the University of Victoria, to show that Steyn has misunderstood the relationship between the Koran and Islamic society. Well, that’s as may be. Would be a good subject for debate. But why exactly does that require the state to adjudicate it?

Okay, I could probably make that point after every line. Not saying I won’t…

10:18 AM
He mentions “the tremendous power of mass media, and its columnists, to influence public opinion. This is undisputed.” Oh, I don’t know: I’d dispute it.

10:21 AM
He’s quoting various intemperate blog posts—written by people with no connection to Steyn or Maclean’s—to make the point that Steyn’s article encouraged others to view Muslims with hatred.

10:23 AM
So he wants the tribunal to order Rogers to publish … something, in the name of “balancing” free speech against the right to be free of discrimination.

10:28 AM
Now recounting the tale of the Osgoode Hall law students, with their “reasonable” demand for Maclean’s to publish a “meaningful” response. I’m guessing the definition of “meaningful” will come into play. In this case, it meant a 5000-word article which Maclean’s could not edit, accompanied by a cover of their own design which Maclean’s could not alter…

10:31 AM
Cites “hundreds of thousands” of supporters, including the Canadian Federation of Students, Ontario Federation of Labour, Canadian Nurses Association…

They’re not trying to have speech “criminalized.” Just trying to right a terrible wrong. “You (the tribunal) are the only thing standing in the way of racist, hateful Islamophobia, etc.” And he’s finished…

10:57 AM
Just coming back from a break. Lots of media interest, it seems: CBC, CTV (I’m told), the National Post, local media, and a guy from the New York Times, who’s doing a piece comparing how the two countries’ legal systems deal with speech cases. Needless to say, he can’t believe what he’s witnessing…

11:02 AM
Roger McConchie now up for Maclean’s…

Fundamental position: these proceedings, from beginning to end, are an infringement of the constitutional right to free press, and the relevant section of BC code should be struck down.

On the narrow substantive issue, we appear for the limited purpose of rebutting the complainant’s claims.

11:04 AM
Under Section 7.1, he continues, innocent intent is not a defence, nor is truth, nor is fair comment or the public interest, nor is good faith or responsible journalism.

Or in other words, there is no defence.

11:08 AM
Maclean’s does not recognize the right of governments at any level to monitor the contents of magazines. We will call no witnesses, but will simply ask that the complaint be set aside…

We will, however, get into whether the article in question conforms to the definition laid out in the Taylor case, a Supreme Court decision upholding a similar section of the federal law on the grounds that it would only apply to really “extreme” examples of hatred…

11:11 AM
McConchie is pointing out that Elmasry is in fact from Ontario. Does he in fact speak for any aggrieved party in BC?

11:13 AM
Incidentally, if you’re wondering why these dispatches are so (uncharacteristically) terse, I’m having to write on a Blackberry—there’s no wi-fi in here. Not to mention light, air, water…

11:19 AM
McConchie goes on: whether or not we agreed to publish the “response” sought is irrelevant. It wasn’t in their original complaint, and it’s not grounds for claiming “discrimination” under Section 7.1.

And he’s done.

11:20 AM
Now we’re on to whether to hear evidence from Professor John Miller, with regard to the Canadian Association of Journalists’ application for intervenor status. He’s a prof at Ryerson, former adjudicator for complaints at the Toronto Star, and a researcher on media representation of minorities. Joseph wants to call him to show “context,” how other media deal with “balance,” etc.

11:26 AM
While they’re arguing, we pause for a brief background break. Here are the sanctions the tribunal can impose on Maclean’s, as set out in the BC Human Rights Code. Can you say “chilling effect”?

Remedies
37 (1) If the member or panel designated to hear a complaint determines that the complaint is not justified, the member or panel must dismiss the complaint.
(2) If the member or panel determines that the complaint is justified, the member or panel
(a) must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,
(b) may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,
(c) may order the person that contravened this Code to do one or both of the following:
(i) take steps, specified in the order, to ameliorate the effects of the discriminatory practice;

…(d) if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:
(i) make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;
(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;
(iii) pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.
(3) An order made under subsection (2) may require the person against whom the order is made to provide any person designated in the order with information respecting the implementation of the order.
(4) The member or panel may award costs
(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).
(5) A decision or order of a member or panel is a decision or order of the tribunal for the purposes of this Code.
(6) The member or panel must inform the parties and any intervenor in writing of the decision made under this section and give reasons for the decision.

11:34 AM
Our argument re Miller: if he’s here to testify about the practices of responsible journalism, and if responsible journalism is not a defence under Section 7.1, then what’s the point?

11:38 AM
It’s kind of a cool defence, when you think of it. The law does not permit us to defend ourselves on the basis of responsible journalism (or anything else, really). But that’s patently unreasonable, so the complainants are actually trying to sneak it back in—to make the issue our journalistic practices, rather than their attempt to silence us. We’re not giving them that opportunity.

11:45 AM

First witness: Khurrum Awan, one of the Osgoode Hall law students who are popularly presented as complainants in the case. Or as they are affectionately known around here, the “sock puppets,” given that the case is in fact entirely driven by Elmasry.

Serious guy, thoughtful, well-spoken. Former president of the Canadian Isamic Congress youth wing. Long history of involvement in issues of “media misrepresentation” of Muslims…

12:05 PM
McConchie is again pointing out that Awan is from Ontario, so whatever traumatic impact the Steyn article is supposed to have had on him occurred, as it were, outside the BC tribunal’s jurisdiction.

12:08 PM
Their reply: he’s a member of the Muslim “community,” which includes BC Muslims. So, I take it, if he’s harmed, they are.

12:10 PM
Another interesting note: Awan is articling at Faisal Joseph’s firm.

12:11 PM
Breaking for lunch now. Also air conditioning, deodorant, elbow room, etc.

Continued: Liveblogging the BC Human Rights Tribunal—Day I, Part II

Tags: BC human rights tribunal, HRT live, macleans, Mark Steyn

More by Andrew Coyne

Patrick G

As I was reading these comments I just happened to get a fundraising call from the Conservative Party. I agreed that I was a lifelong Conservative but I would be staying at home instead of voting in the next election if I did not see some concrete support from Harper to deal with the HRC’s across Canada. The lady on the phone was typing very quickly making notes. When I asked her if she was aware of the MacLeans / Levant issues she said she had not heard anything about them. Clearly shows that the MSM (read the CBC and TV in general, apart from Rex Murphy) have given this no exposure at all. How sad for Canada.
NoGuff

Hey Frank, “dangerous attitudes of the powerful?” doesn’t necessarily flow from the ‘majority’ to the ‘minority’.

But then that belief is classic neo-liberalism, isn’t it. And ‘minority groups’ have every right to own and operate magazines and/or radio shows. In fact, I do believe their are currently lots of both.

Perhaps the remedy is to have the various tribunals compel us to listen to or read them.
http://Pelalusa.blogspot.com Robert W.

C’mon Sammi, it the government. They’ve had a loooong morning and need a little nap after din-din. Give ‘em a break!
gerry

Mill’s In Defense of Liberty spoke about the tyranny of the majority what he did not anticipate was how inverted that would become and I believe were he writing his essay today he would be more concerned about the tyranny of the minority and the abuse of the term “hate” to cover everything from rude or at the very least impolite speech all the way over to slavering incitement for bodily harm. This latter, for some reason by virtue of being a minority, appears to be selectively ok – which is where the tyranny arises in combination with an egregious expansion of the term “hate” to cover whatever the allegedly aggrieved minority does not want to be heard, seen or thought about them. Some wise person once observed that truth was the first casualty of war and we see in this battle for western civilization truth is neither a legitimate defense or an acceptable concept it has been replaced by ‘truthiness’ (and whoever thought that term up is a genius).
Laura

I agree with the reverse chronological order comment…put the latest stuff at the top.
Murray

Frank, taking your paragraphs in order:

1. Maclean’s is a private organization, and this is their playground. They can restrict whatever speech they like on their website and it doesn’t infringe your rights one little bit. Freedom of speech does not obligate anyone to provide you with a forum. And that’s exactly what is at issue in this case.

2. Incitement is already a criminal offense.

3. Yes, you should absolutely have that right, within the existing limitations of incitement, slander, etc. Your employer also has the right to fire you for being an obnoxious moron, and the public at large has the right to not pay any attention to you, and neither outcome would violate your freedom of speech. In fact, many would argue that you already do have the right you mentioned, and that the “likely to cause” laws are unconstitutional infringements on that right.

4. No. Those “harmed” should have to prove harm, either on the balance of probabilities used for civil cases of slander etc., or the much higher “beyond reasonable doubt” proof required in a criminal court. Hurt feelings or offense taken are light-years from either.

In any case, the student complainants have been interviewed on TV and radio, have written newspaper op-eds across the country, and have generally been provided with more free publicity than their article in Maclean’s would ever have gotten them. Unlike the great majority of us, they have had more or less free access to mass media over the past several months to make their case. They have done a remarkably poor job of it, but whose fault is that?
http://kralizec.wordpress.com/ Kralizec

Rich Trzupek said, “This would be M[a]clean’s blog, so they are exercising THEIR free speech by determining what content THEY approve [on] THEIR blog.”

Sure, MacLean’s editors are understood to have a property right in their particular means of publishing. So it’s much more straightforward to speak of their editorial freedom to exercise this property right they have or at least exercise on behalf of MacLean’s owners.

In the construction particular to the Americans, the editors of MacLean’s have freedom of the press. Persons who complain about editors’ “censorship” have forgotten, or never understood, that editors have press freedom, too.
Jeff

Gerry – that would be one Stephen Colbert. Genius indeed. Monday-Thursday on the Comedy Network (Comedy Central in the US) at 11:30 p.m. But he kinda hurts feelings, so it’s just a matter of time…
Stacy

Frank Stringer — if you hosted a radio show in the US, in which you denigrated Jews everyday, you would probably be forced off the air. Importantly, though, this would happen via popular veto as expressed through private organizations that would decline to purchase advertising so as not to be associated with your extreme views. No government involvement.

Canadians are insane to have created the HRT in the first place, let alone to tolerate its persecution of politically incorrect opinions. Let Mr. Elmasry start his own media outlet if he wants equal time for his views. It worked for Rupert Murdoch.
http://www.Chasingamirage.com Tarek Fatah

“Serious guy, thoughtful, well-spoken. Former president of the Canadian Isamic Congress youth wing. Long history of involvement in issues of “media misrepresentation” of Muslims…”

Hmmm…

Guess what was the boy-band doing lastnight in Vancouver.

A friend of mine e-mails me that he got a call last night at 10:00 pm asking him to rally Muslim Youth to “Protest” outside the courthouse. Then he got another call just after 10:30 suggesting he arrange a meeting between Vancouver’s “Muslim youth leaders” and the leader of the boy-band who wanted to try and convince the reluctant local young Muslims to stage a protest against Macleans at the BCHRC. The attempt apparently fizzled, which shows that there is little apetite among BC’s Muslims to cater to the command of the Muslim Brotherhood.
Chris

Don’t you dare to use reverse chronological order. It’s the most annoying thing in the blogiverse. Strike a blow for sanity.
Sheila

Frank Stringer:
“Isn’t a civilised society one that protects minorities against the harmful actions and dangerous attitudes of the powerful?”

Explain how Steyn’s book caused “harm” or how his attitude is “dangerous”. Why – because his book contained factual information on demographics? Because he accurately quoted some radical bigoted Muslims?

And how did Macleans cause “harm”? How are they “dangerous”?

Have you even bothered to read the book you condemn? The book America Alone is more about “us” (Western Civilization) and our laziness and in procreating. There is a population paradigm shift going on, and that is what Steyn talks about in America Alone – not a condemnation of Muslims. And you would know that had you bothered to educate yourself.

I care more about the actions of a so-called democratic society, such as ours, putting such strong restrictions on free speech and freedom of the press. I don’t want to live in a country where the government controls, through the threat of these outrageous kangaroo courts, our freedom to speak.

I don’t want to live in a country where the government can FORCE a private magazine or newspaper to print or not print something.

And contrary to what some HRC employees believe, freedom of speech is NOT just an American concept – it is a democratic concept. And last time I checked Canada was a democratic country – though maybe not much longer.
Darrell

Murray, great comments. Spot on. Logical and natural consequences regulate freedom of expression quite nicely.

MacLeans web folks, you should also number the comments so that they can more easily be referred to in replies etc. Even just a timestamp or something.
http://kralizec.wordpress.com/ Kralizec

“Wow. Kenney completely, thoroughly, and utterly destroyed Awan in that letter.”

It was glorious.
Stephen

Freedom of Speech in the Charter always refers to the government not restricting a citizens right to free speech. It traditionally never has and never should apply to the issues of speech between individuals.

Private organizations may restrict speech of their ebers all they wish, subject to the limits of the law. This is ultimately where the argument would go, a debate about the “ownership” of speech and the media it is disseminated in.

You see Mr Rogers apparently has property rights. The Sockpuppets, Mr Joseph and the the good Dr Freeze are trying to abuse Mr Rogers property rights and impose something on a agazine that he and his shareholders own.

You know in fact maybe there is a lawsuit here. Go buy soe Rogers shares and start a class action suit against these parties, should they win. They will have abused your rights and expropriated property without due compensation. I figure Rogers media is worth about a billion…..
http://www.freedomcanada.net Gail Parker

To me it seems strange Mark Steyn is awaiting a ruling by a bunch of legal thugs from a Country he emigrated from to live in the US. We should all be so lucky to live in a country that has a Constitution which enshrines free speech – The First Ammendment. Even if their media seems controlled by the left in the US and yes they do need permission to exist with a licence, they still have a right to fight for their rights in America. We should have abolished our antiquated political structure – the Monarchy with its top-down structure long ago and written a constitution of, by and for the PEOPLE ! Lets get to the root of our problems in Canada and stop trying to fix something that is not fixable! We need a free REPUBLIC!

Gail Parker
Norman

Thank goodness they have secured the services of an academic to explain the proper relationship between the Koran and Islamic society. As everyone knows this is a vital foundation for freedom of speech in Canada, such that remains of it
GaryinWpg

I hope Macleans lawyers stay focused on the issue of free speech/freedom of the press.

My fear is that this tribunal could become a mudslinging theological debate in which the complainants will claim spiritual superiority and thus all others are inferior and have no right to criticize something superior.

This case is a theological/spiritual issue tried in a secular court, which no one is probably equipped to handle.

My last paid issue of Macleans showed Christ on the front cover with by lines of questioning His Divinity, which came out around Easter. Was I offended? Yes. Was I mad? Of course. Did I seek compensation of any sort? No. As Christ said on the cross. “Father forgive them. For they do not know what they do.” And that is how I summed it up.

Unfortunately it appears that the complainants can’t heed the words or apply some of the teachings of one of their prophets (Isa), maybe because others consider Him divine?
Freedom Lover

America has the Second Ammendment as an ultimate backstop against this sort of naked fascism. Canada, the UK, et al are already well along in completely disarming the flock, er, people.

One positive note: in the UK last week hundreds of truckers formed a convoy and stood up to their fascist “Green” rulers. They may not be armed as a defense against the depradations of their own government–as are the Yanks–but at least they have lorries and aren’t afraid to use ‘em.

Time for all Western nations to drastically scale back the power of the state before we are plunged back into an even more horrific replay of the 20th century.
glasnost

Does anyone else find it curious that the Jason Kenney to Awan letter is not dated. This would be quite an oversight by the Minister’s staff.
Erik Larsen

I’m worried, and I tell you why. The comments emanating from various Human Rights Commissions have produced an emotion within me that is somewhat akin to hatred for those very same Human Rights Commissions. Would they be guilty, or would I? Again, just askin’ . . . .
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