Liveblogging the BC Human Rights Tribunal—Part I

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
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”?

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

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