My opening remarks at today's Media Lawyers Association conference in Ottawa
Thank you, Dan, for the invitation.
In the four years that I was publisher of the Western Standard magazine, we received, on average, one threat of a defamation lawsuit each month – or about one every other issue. But never once did any of those threats turn into a statement of claim, let alone a trial.
The reason was simple: we put a great emphasis on getting our facts straight, and our opinions, while famously spicy, were always fair. And we knew – and the fifty or so people who threatened us over the years knew – that if they took us to court, we’d eventually win. And if we’d win, our antagonists would have to pay much of our legal costs. Not just that, but they would bear significant costs themselves – not only legal bills, but time and effort and emotional energy, and the potential embarrassment that all defamation plaintiffs face when their own reputation and conduct is carefully examined.
But we were, in the end, sued twice for something we published: the Danish cartoons of the Muslim prophet, Mohammed. We ran them to illustrate a news story about the riots purportedly in reaction to those cartoons. They were the central artifact of the news story. They weren’t presented as our opinion; they were presented as a lawyer might enter a piece of evidence, Exhibit A. In other words, they were news themselves; they were the facts of the story. And we were sued for reporting those facts.
We were sued not in defamation law, but in human rights law. And the reason we were sued is precisely because all of the traditional defences that stood our magazine in such good stead in the face of defamation suits, were taken away from us by the government.
Our factual accuracy was of no use. The charge was discrimination or, to use the precise language of the law, we had published something “likely to expose a person… to hatred or contempt”. A plain reading of that will tell you it’s got nothing to do with factual accuracy. It also has nothing to do with reasonableness of opinion or journalistic responsibility. Those defences have been developed over 400 years of defamation law. They do not apply to human rights suits.
Another defence we were not able to use was that damages suffered by the busy-body plaintiffs were remote or non-existent. Again, a plain reading of the law shows that no damages are necessary to convict – as if being “exposed” to someone’s mere feelings was a compensable damage. But even if it was, that’s not what the law requires: we had only to “likely” expose someone to bad feelings. Likely means maybe, maybe not.
As well, the natural check on American-style over-litigation – the financial, time and emotional cost of suing, and the risk of costs being awarded to the defendant – were not in play. The government of Alberta carried the investigation against us, and, had the case not been dismissed, would have prosecuted us before a tribunal. The complainants didn’t have to spend a dime or a minute – and the law prohibited me from collecting costs when I won.
There was no discovery process whereby a plaintiff with dirty hands would be embarrassed to proceed. In my case the first complainant, Syed Soharwardy, was a radical imam, who was trained in Pakistan’s madrassahs, who does the Saudi lecture circuit, who taught at an officially anti-Semitic university. Even his complaint was littered not with Canadian law, but with sharia law. He actually cited sections of the Koran to make his case. The secular government of Alberta prosecuted an Islamic fatwa; it was the first blasphemy trial in English Canada in nearly 90 years.
Soharwardy would never sue in defamation law. He’s odious. He has called for sharia law in Canada; he has said Western aid agencies doing tsunami disaster relief were secretly kidnapping and converting Muslim children; his treatment of women at his own mosque is so appalling he is the subject of human rights complaints himself. None of this mattered. I, on the other hand, was subject to Section 23 of the Alberta Act, which allows the HRC to enter and examine my office, make inquiries of me and my staff, and seize any document or computer hard drive – all without a search warrant.
After Soharwardy’s complaint was filed against me, an identical complaint was filed by another radical Muslim group. No rules of double jeopardy; a hundred such complaints could have been filed – each demanding cash as a shakedown. Look at Maclean’s magazine – they had the same complainants in three jurisdictions.
Disclosure? None from the complainant. I had to pay an enormous sum for access to information documents about my own case – most of which have been stonewalled, including every single internal HRC e-mail. I did receive enough paper, though, to see that 15 bureaucrats and lawyers worked on my case for 900 days. I’m a major crime scene.
My case was dismissed, eventually, by a bureaucrat who I had never met, Pardeep Gundara who came up with a novel and bizarre rationale for letting me go – including that our publication of them wasn’t “gratuitous”. Did you know that it’s against the law to publish something gratuitously? Neither did I. I also didn’t know that what page you put them in the magazine also is a factor.
Let’s be frank. Gundara was just making this up.
And if Gundara – who, unbeknownst to me, apparently had become my editor’s editor – had recommended the matter go to a full prosecution, I would have been in even stupider hands. Not a single human rights commissioner in Canada is a judge, of course. But many of them aren’t even lawyers. In Alberta, we’ve got several non-lawyers who run hearings, including a nurse. That’s great if the case is about, say, nosebleeds. But I’m not really interested in hearing her view on freedom of the press, radical Islam, or anything else.
It’s a counterfeit court. It produces junk law. Its procedures are a joke. But that’s not what’s dangerous. What’s dangerous is that they are political weapons, used to punish views they hate.
I think so-called hate speech laws are un-Canadian. But if they’re on the books, the laws ought to be applied evenly. There is indeed some hate speech in Canada – in Syed Soharwardy’s mosque, for example. Or take the Egyptian-born radical who sued Maclean’s, Mohamed Elmasry. He declared on TV that any Jew in Israel is fair game for a terrorist attack. But no radical Muslim, radical Sikh or radical Tamil has ever been charged with hate speech. 100% of all cases at the CHRC have been white, Christian or conservative.
Take a white, conservative Christian named Rev. Stephen Boissoin. After a six-year kangaroo hearing, he was convicted of hate speech for publishing an Op-Ed in the Red Deer Advocate. Six years later. He was fined $7,000 payable to his antagonists. But get this: he has been banned from saying anything disparaging about gays for the rest of his life. Disparaging is the word in the ruling. Not criminal, not hateful. Disparaging. In public sermons, even in private e-mail. Read the ruling.
And that’s not all: the government of Alberta positively ordered him to recant his views and apologize – not just to his antagonists, but in the Red Deer Advocate itself. (They wisely refused to print such a Maoist forced apology.)
But the story gets better.
As a protest, I republished Rev. Boissoin’s Op-Ed on my blog, in full. In bad faith – I didn’t even believe in it. And I knew it had been found, legally, to be “hate speech”.
Sure enough, I was taken to the CHRC.
And their investigator recommended that I not be prosecuted.
My friends, that’s what’s called a controlled experiment. Every variable was controlled, except one. The words were the same; the law was the same. The only difference is that I’m a noisy, Jewish lawyer who knows how to fight back; Rev. Boissoin is a penniless pastor who doesn’t know how to fight politically.
I was let go; Boissoin had his face ground into the dirt. For the exact same words.
That’s not law. That’s corrupt, that’s abusive, that’s un-Canadian.
It’s un-Canadian than not a single person tried under s. 13, in thirty years, has ever been acquitted.
It’s un-Canadian that 91% of the CHRC’s targets are so poor they can’t afford lawyers, and aren’t given one.
It’s un-Canadian that the CHRC goes online, posing as neo-Nazis, spewing racist venom, to entrap people in discussions that they then prosecute.
It’s un-Canadian that the CHRC has no ethics code, and has hacked a private citizen’s e-mail account in one of their neo-Nazi personas – which is why the CHRC is now under both RCMP and Privacy Commission investigation.
Anyone who believes in a spectrum of ideas should be furious with these kangaroo courts. And anyone whose job it is to defend the media should be very worried, too.