¡Hola, Señor Nicholson! Time to call your office.

Marc Lemire has been on trial at the Canadian Human Rights Tribunal since January, 2007. The original complaint against him by the Canadian Human Rights Commission was filed years before that. All that's left are final arguments.

But the CHRC only agreed to give full disclosure of its case against Lemire -- yesterday. I understand that approximately 400 pages were handed over, but more has still not arrived. (The CHRC, with an eight-figure budget, sends their disclosure by regular mail.)  

In other words, now that the trial is done, Lemire is finally being shown the case that he has to answer. And that's if you believe that the CHRC has in fact decided to reveal all of their records. They've lied before -- lying, in fact, is at the core of their investigative techniques.

And then there's the CHRC's previous admission that their investigators don't even take notes of their work. That comes in handy, when they need to forget their conduct -- as complainant/investigator Richard Warman did, 157 times in the Lemire case alone. 

In real courts, disclosure happens long before a trial. In civil cases, parties have to swear an affidavit of records, in which they list and hand over every relevant document that isn't protected by lawyer-client privilege. There is no such thing as confidentiality when it comes to disclosure. Confidentiality doesn't trump the other side's right to know relevant information.

In criminal trials, disclosure is even more important. Every scrap of paper that the police have is disclosed to the accused -- right on down to police officers' hand-written notebooks. There is a special duty for police to hand over exculpatory documents -- anything that favours the accused.

This is pretty basic stuff -- it's part of the right to know the case against you, and it's a core principle in what's called "natural justice".

It's insane that the CHRC is only now giving disclosure to Lemire -- after more than 26 days of hearings without it.

In a civil suit, this would be grounds for dramatic remedies, ranging from having the lawsuit struck out, to significant cost awards -- and it would result in serious sanctions to the lawyers involved if they were in on the cover-up. In a criminal case it would, at least, result in a mistrial if not an outright acquittal.

But it gets worse.

Read the letter written yesterday by the CHRC's lawyer, Margot Blight, describing their after-the-fact document disclosure. In it, she says:

The disclosure materials which were disclosed in a less-redacted form yesterday, were re-redacted taking into account the following principles:

1. Names of individuals employed by the Commission at an below the level of Manager are to be redacted...

2. With respect to individuals outside the Commission and as a general rule, information identifying an individual's name and coordinates is to be redacted...

The CHRC is deciding -- unilaterally -- that they simply won't give Lemire information that they don't want to give him. They won't give names of their investigators. And they won't give names of outside staff at all -- no matter how deeply involved they were in the case against Lemire.

Blight's first point would be like a bus company sued in a traffic accident simply choosing not to tell crash victims the identity of the bus driver. Her second point would be like the police department contracting out some of its crime lab work -- and using that as an excuse to hide the details of any contractual staff involved in the investigation.

That's just not how it works in a first world country like Canada. In real life, the courts determine what is or isn't relevant -- one party doesn't, and certainly not the prosecuting party, which the CHRC is here. For the CHRC to unilaterally decide that they're not going to disclose who did what is outrageous. Their clownish amateurism -- re-redacting what was un-redacted -- is laughable, but less important than the substance here: they're breaking the law.

My favourite line in Blight's letter is:

It is anticipated that... more clues will remain which will indicate to the reader the nature of contact information which has been redacted.

Clues, eh? The CHRC is willing to give the accused some clues about the case against him? Well, that's mighty sporting of them! They'll give the poor chump some tantalizing clues -- maybe disclose the documents in invisible ink! I think I read about that procedure in law school -- Kangaroo Courts 101.

The ancient principle of natural justice applies to all courts -- and to quasi-judicial tribunals like the Canadian Human Rights Tribunal, too. This latest CHRC gimmick clearly violates natural justice, and a few items in the Charter of Rights section on legal rights, too. But it also violates the CHRT's disclosure rules that require the CHRC to:

list of all documents in the party’s possession, for which no privilege is claimed, that relate to a fact, issue, or form of relief sought in the case, including those facts, issues and forms of relief identified by other parties under this rule...

and

Where a party has identified a document under 6(1)(d), it shall provide a copy of the document to all other parties.  

Let's recap:

1. After 26 days of hearings -- with no more witnesses or cross-examinations left, only final arguments -- the CHRC is only now disclosing its case against Lemire.
2. They're still blacking out whatever information they want to do -- in violation of the Tribunal's own disclosure rules.
3. And they still haven't handed over everything they said they would -- and that's assuming they're not hiding more documents. Until I posted it on this website yesterday, they hadn't given Lemire a copy of their transcript from the crucial March 25th tribunal hearing.

I can't say it any better than the headline in the Vancouver Province did: I'll take Mexican "justice" any day over human rights grillings in Canada

¡'Hola, Señor Nicholson! Time to call your office.