Warman vs. House of Commons

Mark Steyn points out that Keith Martin's criticisms of the Canadian Human Rights Commission are stronger than ever on the eve of Tuesday's landmark hearing. And Martin properly fingers a major culprit behind the CHRC's abuses: Richard Warman. Martin mentioned Warman specifically in the National Post:

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."

About which Steyn asks:

I wonder if [Warman] will sue - or threaten to sue - Dr Martin, as he has sued - or threatened to sue - everyone else who disrespects him.

I don't know if Warman has threatened any MPs with lawsuits, but I know that he threatened an MP with a human rights investigation. In fact, in one of the very first editions of the Western Standard, we did a cover story on just that case: Warman -- who was still working at the CHRC -- had filed a complaint against Jim Pankiw, then a Saskatoon MP, citing official Parliamentary brochures Pankiw was sending to his constituents about topical issues like crime and Aboriginal land claims. Here are some excerpts from Terry O'Neill's incredible story (link requires quick but free registration):

On April 14, 2004, Richard Warman, an Ottawa-based lawyer who is an investigator with the Commission, filed a landmark report recommending the Commission appoint a Human Rights Tribunal to inquire into the complaints. The next day, the CHRC's director of investigations, Sherri Helgason, gave Pankiw until May 7 to respond. The Commission will then decide whether to turn to matter over to a tribunal for adjudication (the Commission itself does not confirm or deny the existence of any case until it proceeds to the tribunal stage, a Commission staffer said).

If found guilty in what would be a precedent-setting decision, Pankiw could be fined up to $20,000. He would be able to appeal to the Federal Court of Canada, but a guilty verdict would likely be enough to cast a chill over Parliament Hill. No longer would MPs feel completely free to advocate--or criticize--controversial policies if they suspected that someone might be offended.

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So, the RCMP has determined the confrontational brochures do not qualify as hate literature. A legal expert on libel and defamation determines they are in no way racist. So why does the CHRC seem ready to pursue Pankiw despite all of the evidence? It could be that it's in its nature. For one thing, bureaucracies are motivated to justify their own existence. If the CHRC had no one to investigate or try, people might question why we need the thing. Subsequently, bureaucrats there have at least an unconscious drive to protect their jobs by fleshing out human rights abuses, even in a country with one of the cleanest human rights records in the world. On the conscious level, those inside the CHRC are likely going to be more prepared to be activists in terms of pushing the boundaries of what constitutes a human-rights abuse given that section 48.1 (2) of Canada's Human Rights Act stipulates that all persons hired to serve on a tribunal "must have experience, expertise and interest in, and sensitivity to, human rights." In other words, only those persons who are already predisposed to be in favour of human-rights prosecutions can serve on tribunals.

Take Richard Warman. The man investigating Pankiw has a storied history of making human rights one of his personal causes. He is a political animal, having run for the ultra-left wing Green Party in Ontario both provincially and federally. He was personally awarded $30,000 by the tribunal in June 2003 for helping to shut down a racist website. Last summer he also personally sued the Northern Alliance, a white supremacist group, for libel after the group said on its web site that he was "a misguided witch hunter." In a speech in October 2003, discussing the fight against offensive speech on the Internet, Warman said he was looking forward to international agreements that would allow nations to arrest those it considers promoters of hate-speech if they try and enter the country.

The reason that the CHRC is able to proceed with a case the RCMP considered pointless is that human-rights proceedings are not forced to adhere to the same sort of strict rules of evidence to which criminal courts must. Tribunals do not need to show that offending statements made by a defendant are actually false, for instance; prosecutors need only show that the statements were discriminatory. In other words, in the star chamber of the human rights tribunal, even the truth is not a valid defence.

Nor do prosecutors need to prove these discriminatory statements caused actual harm, only that they had a potential to do so. In August 2002, when a federal Tribunal found Vancouver businessman John Micka guilty of violating the Human Rights Act because of anti-homosexual statements he made on a web site, the tribunal based its findings on the evidence of a sole 'expert witness'--a professor of sociology and anthropology at the University of Windsor who is also a well-known a homosexual-rights activist. The tribunal heard no evidence that harm had come to homosexuals through the publication of Micka's statements. In effect, the CHRC gave the expert witness was given the power of censor, "deciding what [and what not] the Canadian public should be entitled to read," said McConchie at the time. The CHRC's case against Pankiw relies in part on the expert opinion of Derek Smith, another sociology and anthropology professor, but this time from Carleton University. Smith wrote in a Jan. 16, 2004 report to the Commission that Pankiw's pamphlets "far exceed legitimate and civil policy discourse." He opined it is "entirely appropriate" that the contents of the pamphlets be subject to a Commission action. He reached his conclusions based on a close reading of the pamphlets, including an analysis of the colour of ink Pankiw used. He found those colours--red and black, on a white background--to be "inflammatory," because those three colours, as well as yellow, are frequently found in ritual Native "regalia and clothing".

Four things come to mind.

First, I really miss the magazine, and the ability we had to fire a broadside at the issues of the day, every two weeks. But I'm glad that most of our former writers (and radio hosts) are still in the business. I guess I am, too. And Matthew Johnston runs the website, where all of the magazine's stories are archived and a blog continues. 

Second, I'd like to add up just how many complaints Warman filed at the commission while he was working at the commission. I had wrongly assumed that he didn't start his spree until he left. I wonder what kind of interference and pressure he brought to bear on his colleagues in the Pankiw case -- was it similar to the improper demands he placed on his colleague, Hannya Rizk, in the Lemire case?

Third, stop for a moment and think of the unmitigated arrogance here: that Warman and the CHRC would presume to be able to censor MPs. Put aside the ancient legal custom of parliamentary privilege and other immunities that we grant to MPs specifically to protect them from being bullied. What does it say about Warman's and the CHRC's respect for political debate, and for the democratic process that had elected Pankiw?

Fourth, I'm proud of the fact that the Western Standard made this a cover story, fully four years ago. But it's a reminder of how long Warman and the CHRC have been getting away with their abuses. Too bad Pankiw didn't turn the tables on the CHRC and Warman, the way Lemire is doing on Tuesday. But, to a lesser degree than Lemire, Pankiw was on the margins of politics, with few friends either in Parliament or the media. If he had fought back, it's unlikely that he would have had sympathetic treatment -- or indeed, coverage at all -- in the media, though he would have had the benefit of free lawyers from Parliament's legal department.

How many lives have been ruined by Warman and the CHRC in those four years? Not just in the cases that have gone all the way to a ruling, but the dozens of people who have been bullied along the way? We will likely never know all of the disreputable things done by the CHRC and we will never be able to set right all of their wrongs. But we can stop things from going on in the future.