Two months ago, the Canadian Human Rights Commission realized that it was losing the public relations battle badly. While they were still crushing their targets in their kangaroo courts, in the court of public opinion, their targets were becoming martyrs -- and the phrase "human rights commission" was turning into an Orwellian joke. More attention had been paid to the CHRC's corruption and abuses of process in the past six months than in the previous 30 years of its existence.
They were beset by investigations of all sorts. The RCMP was conducting a criminal investigation into their conduct, as was the Privacy Commissioner. And the Parliamentary Justice Committee has announced its intentions to review the CHRC, too.
So, without notifying Parliament, the CHRC pre-empted them, announcing their own Potemkin review -- by a hand-picked professor, who has been specifically restricted from commenting on the obscene CHRC conduct that has led to the RCMP and Privacy Commissioner's review. Here's the reaction from several MPs I spoke with: a combination of disgust that the CHRC -- their statutory creation -- would arrogate unto itself the right to review its own mandate; and a feeling of "who gives a damn? It's clearly a sham."
My own thoughts on the review, by University of Windsor professor Richard Moon, are similar. It's a joke for the CHRC to hand-pick its own critic; it's a joke that the critic is restricted from asking the most difficult questions; and it's anti-democratic and abusive of taxpayers that the CHRC, a bureaucracy that has been given marching orders by our elected Parliament, has decided that it will review its instructions from Parliament, and tell Parliament where they're wrong. I suppose such hubris is to be expected from the sort of people who regularly target -- and occasionally jail -- Canadians for having incorrect political opinions. How disgusting.
Finally, as Blazing Cat Fur has pointed out, Moon has a track record of supporting government intervention in the media. No doubt that's precisely why he was chosen for this review: he's a rare academic who supports the government choosing what can and can't be said, and by whom.
Nonetheless, I responded to Moon's invitation to submit my thoughts. I did so in the form of a series of questions. That's because I'm not really interested in trying to "convince" Moon -- or anyone else at the CHRC -- that censorship is wrong and freedom is right. I don't need to convince them, because those are my natural rights, and I don't need their permission. I think it's a moral mistake to even grant the CHRC and its contractors the legitimacy as arbiters of right and wrong.
Rather, my questions were a list of particular problems with the CHRC, problems that the CHRC has stonewalled any attempts to answer -- whether at the Canadian Human Rights Tribunal, or through access to information requests, or through media inquiries. They are a secretive, abusive, corrupt bunch -- and, even if Moon acts in good faith, I'm sure they won't answer those questions. Moon is meant as camouflage; a placebo; a distraction; a cover-up. He's certainly not meant to actually reveal the awful truth about the CHRC.
In that way, I think my questions are strong. If Moon actually does answer them -- great. We've learned more about the CHRC's internal rot. More likely, if Moon doesn't -- or can't, or won't -- answer them, we have conclusive proof of my thesis that Moon's exercise is nothing more than an expensive masquerade by the CHRC, desperate to show that they're accountable.
Enough preamble. Here are my questions to Moon. (I sent them in two e-mails to him; I combined their numbering below).
Dear Prof. Moon,
Further to your e-mail, below please find my submission to your review. It is in the form of a list of questions. Should you need any primary documents referred to in the questions, I would be happy to send them to you; most of them can be found on my blog.
There are many more questions in similar veins. I’m limiting my submission to these few, as I doubt that your report will – or will be allowed to – address them in a meaningful way.
I believe that your review is merely a political smokescreen, a placebo to pretend that the CHRC is accountable, when in fact it has hand-picked you, has limited the scope of your work, and has done so to pre-empt an RCMP investigation, a Privacy Commissioner investigation and a nascent Parliamentary review.
Frankly, I expect that few of my questions will be answered in your report. I hope that I'm wrong; but if not, I will surely pass on my list of questions to the Parliamentary review -- the one that the CHRC answers to, not the one that answers to the CHRC.
Procedural details about your review
1. Other than the published terms of reference of your review, have you received any other instructions, in writing, verbally, or in any other form, from the CHRC or anyone else? If so, what are those instructions?
2. Have you been instructed that there are certain issues that you are not to discuss?
3. Have you had any interim meetings with Jennifer Lynch, or any other CHRC staff, or others, during which you have been asked about the status of your work, or been given feedback or direction on your work to date, or otherwise received instructions?
4. Have you received any instructions, advice or input from the CHRC’s public relations or government relations staff or contractors?
5. Will anyone see your report prior to its final publication? Will it be reviewed, edited or embargoed by the CHRC prior to its release? Will you release it, or will the CHRC?
6. Have you been granted access to CHRC records, including computer files, internal memoranda, meeting minutes or any other CHRC resources? Have you been granted authority to interview CHRC staff, or former staff? Did you do so?
7. What compensation will you receive for your review? Have you been promised any other future consideration?
Inappropriateness of the CHRC reviewing Parliament’s mandate
8. Under what authority is the CHRC reviewing the mandate given to it by Parliament? What statutory or regulatory provision authorizes the CHRC to second-guess its standing orders given to it by the elected legislature?
9. Who, if anyone, did the CHRC consult prior to its announcement of your review? Did it consult MPs? The PMO or PCO? The Justice Minister? Any public relations or government relations staff or contractors?
Other contemporaneous reviews
10. Were you instructed to avoid reviewing the matters currently being investigated by the RCMP and the Privacy Commissioner into the unauthorized access of a private citizen’s Internet account by CHRC staff?
11. What is the status of those investigations? What CHRC staff, former staff, contractors or former contractors have been interviewed?
12. Have any search warrants been issued relating to CHRC records or other property such as hard drives? Have the CHRC offices been searched? Has anything been seized?
13. Were the actions being investigated done in the course of CHRC duties? Who approved those actions?
14. Has the CHRC paid for criminal lawyers for those being investigated? Who has been investigated so far?
15. Has the CHRC made any offer of a settlement to Nelly Hechme?
CHRC investigative tactics that spread hate
16. What is the CHRC policy on impersonation and entrapment by CHRC investigators and other officers? Is there a policy? Who wrote it? Has it been promulgated to the staff?
17. What is the CHRC policy regarding CHRC staff committing section 13 hate speech offences while impersonating neo-Nazis or other bigots? Is there a policy? Who wrote it? Has it been promulgated to the staff?
18. Does the CHRC continue to use false personas?
CHRC lack of ethics code
19. In a recent internal governance audit, the CHRC received a failing grade for ethics, and was found not to have a code of ethics. Since that time, has the CHRC adopted an ethics code?
20. If so, what is it? How is that ethics code being implemented? What operational changes, if any, have resulted from that? What are the penalties, if any, for violating ethical norms?
21. What ethical standards, if any, does the CHRC use to screen candidates for employment? Is it appropriate that a former police officer who was drummed out of the force for corruption works as an investigator at the CHRC?
Improper investigation of political websites
22. The CHRC has admitted to investigating political websites, such as Free Dominion, even in the absence of any complaint. What political websites is the CHRC currently investigating?
23. What is the CHRC policy about investigating websites before a complaint is made? If that policy prohibits such investigations, has that policy been enforced, and have CHRC staff been disciplined or otherwise corrected?
24. Does the CHRC have any oversight committee, or even a single manager, who ensures that CHRC investigators do not engage in personal political vendettas?
CHRC improper use of police powers, evidence
25. The CHRC regularly asks Canadian police forces (and CSIS) for information and evidence to which the CHRC is not statutorily entitled, including evidence seized by police pursuant to criminal search warrants, where the CHRC's interest is not disclosed; access to the CPIC police database; and police and CSIS surveillance. What is the CHRC's policy regarding evidence acquired in this manner? Who drafted this policy?
26. Has this policy been approved by any judicial review? Has it been disclosed to the police departments' respective oversight bodies? Has it been disclosed to Parliament?
27. Richard Warman was a CHRC employee from 2002 to 2004. While he was at the CHRC, he began filing section 13 hate speech complaints that were reviewed by his colleagues. He has continued to do so since he left. He has filed half of all complaints, and 12 out of 14 cases that have gone to the CHRT over the past five years have been Warman's complaints. The CHRC calls Warman as their witness in his own complaints, thus enabling them to pay his expenses for being a witness in his own complaints. Does Warman have any status with the CHRC whatsoever, other than as a complainant?
28. Does the CHRC have any policy regarding the conflict of interest of having current or former staffers file CHRC complaints?
29. Does Warman have any access to CHRC offices, e-mail accounts, computer files, passwords or Internet aliases such as Jadewarr? When was that access cut off?
30. What compensation does Warman continue to receive from the CHRC? Does he have any ongoing contracts with the CHRC? When he appears as a witness for the CHRC, does he receive any fee whatsoever, including a per diem payment? What are those payments? Do any other CHRC complainants receive them?
31. Warman’s use of false identities to entrap CHRC respondents has been criticized by the CHRT. What review, if any, has the CHRC done of Warman’s tactics? Have they made any policy changes in response to the CHRT’s criticisms?
32. Section 13 hate speech complaints filed against Warman for his bigoted posts have been rejected by the CHRC, despite an investigator’s assessment that Warman did in fact breach section 13. Why are CHRC staff and former staff exempt from section 13 hate speech investigations?
CHRC lack of respect for Charter values
33. Dean Steacy, the senior section 13 hate speech investigator for the CHRC testified that "freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept." Does Steacy's testimony represent the CHRC's view of freedom of speech?
34. If not, what is the CHRC's view of freedom of speech? Has that view been promulgated within the organization? Has Steacy been corrected in his view or disciplined? How?
35. If the CHRC has changed its view, or if Steacy’s view was a rogue view, have there been any changes to the way that Steacy and other section 13 hate speech staff operate?
36. Will the CHRC publicly state its new policy regarding freedom of speech to contradict the impression left by Steacy?
CHRC failure to comply with natural justice
37. The CHRC regularly refuses to comply with rules of natural justice, and even its own rules of procedure. On what legal basis does the CHRC redact its disclosure, contrary to its rules of procedure, as in the Lemire case? On what legal basis does the CHRC disclose documents after the hearings have begun, as in the Lemire case? At what level of the CHRC has this process been approved?
38. The Information Commissioner has recently ruled that the CHRC is in violation of its access to information obligations. What changes, if any, has the CHRC made to comply with the law?
39. In the recent Lemire hearing of March 25, 2008, the CHRC made a transcript of the hearing, but did not disclose it to the respondent, despite his requests – but sent it to journalists. Who approved this decision? Is it standard CHRC policy to withhold transcripts from respondents?
40. That transcript was found to have been inaccurate in a substantial manner that would have disadvantaged the respondent. Was that transcript edited at the instruction of the CHRC?
41. The CHRC regularly calls for publication bans; withholds evidence; and has even applied for a respondent to be physically barred from the hearing room during parts of his own hearing. In one case, the identity of a complainant was withheld from the respondent by the CHRC. Who approves these abusive legal tactics? Is there a CHRC legal procedural manual?
42. 91% of the CHRC's section 13 hate speech targets are too poor to hire lawyers. Why is it acceptable to the CHRC to prosecute people who are unrepresented by competent counsel, without providing them with legal aid?
Improper political influence
43. The B’nai Brith and the Canadian Jewish Congress, two groups that are parties or intervenors in support of CHRC complaints, are registered lobbyist targeting the CHRT. What was the CHRC’s involvement with this lobbying? Is it appropriate for parties before the CHRT to lobby the CHRT ex parte? Are there any other quasi-judicial tribunals in which such explicit attempts to influence decision-making are considered legal?
44. The CHRC has never prosecuted a section 13 hate speech complaint against a Canadian from a minority background -- 100% have been white. This is odd, given that there is evident "hate speech" within various ethnic minorities in Canada including, just to name a few, from Tamil, Sikh, Muslim and other immigrant communities, including amongst those communities, between radical and moderate elements. Does the CHRC have a policy to only prosecute white hate speech cases? If not, why have no other prosecutions been made?
CHRC bullying of its critics
45. In response to my criticism of the CHRC’s conduct, I have been sued in civil court by a CHRC lawyer, Giacomo Vigna, specifically for criticizing his work as a CHRC lawyer. Vigna has threatened me with a second lawsuit. He has also filed seven law society complaints against me -- all for my criticism of his conduct with the CHRC, or of the CHRC in general. Does the CHRC have a policy regarding lawsuits by staff against CHRC critics?
46. Were CHRC managers or staff aware of Vigna's lawsuit before it was filed? If so, what feedback was Vigna given as to the appropriateness of a lawsuit being filed against a political critic of the CHRC?
Those are my submissions.
Moon wrote back to me right away, with the following reply:
Mr. Levant: My instructions from the CHRC are contained in the mandate that is posted on the CHRC website. No one connected with the CHRC has asked me to do anything more or less than that. I can assure you that this will be an independent report. You may agree or disagree with my recommendations but they will be my recommendations.
I will not be considering allegations of illegal behaviour on the part of the CHRC staff. I have neither the authority, nor the expertise, to engage in such an investigation. I will, however, be examining the CHRC investigation process.
Your substantive questions, I will hope to address in the report itself.
Professor of Law