I've read the blogosphere's several accounts of Tuesday's Canadian Human Rights Tribunal hearing in Ottawa in the Warman v. Lemire case, and it's on that basis that I've formed my first impressions. You can read some of those reports here, here, here, here, here, here, here and from the defendant himself here. I've also seen two newspaper stories, this one from the National Post's Joseph Brean, and this one by the Ottawa Citizen's Don Butler.
I'd prefer to review the actual transcripts of the hearing, but from what I've read, there will be no transcripts made, only an audio recording.
Let's start there in our analysis: This matter has been proceeding for four years; to investigate and prosecute this case, the CHRC has not only deployed the full weight of their own government staff, but they've retained a series of expensive private sector lawyers as well. I'd conservatively estimate that $2-million in taxpayers' money has been spent to date, but this being a government enterprise, the true number might be closer to $5 million. A half-dozen interveners, including the federal government, have sent lawyers, too, even if they merely sit in the hearing all day, not saying a word. And, of course, the Tribunal itself has been seized with this matter for well over a year, with about 20 days of hearings to date, in at least two cities.
Why was Tuesday's hearing the one day that won't be transcribed and published? Why was a trifling savings of a court stenographer -- who costs, what, a third of what a lawyer bills? -- chosen as the one area of economy to find? Is the Tribunal, with the unlimited resources of the government, out of cash?
The Tribunal's decision to nix transcripts is transparently biased: the one day that the hunters became the hunted -- where the CHRC itself was being grilled -- was the one day that accurate, typed, searchable transcripts were omitted. Try to "search" an eight-hour audio recording for a key word, as opposed to searching a written transcript. Try to hear words that are spoken quietly; try to learn the spelling of unusual names of words; try to skip to important matters and avoid others. It's yet another irregularity in a system where arbitrariness and capriciousness have replaced the rule of law.
That's offensive to anyone, like me, who cares about the openness of our legal system. But it's more than just offensive -- it's unfair to any defendant who will now not be able to rely on such transcripts for his appeal when he's convicted.
One day only
So the one day in which there will be no transcripts is the one day the CHRC is on the defensive. But why was Tuesday's hearing limited to just one day?
Again, this matter has been grinding on for four years, more than a year of which was in the Tribunal. Richard Warman, the nominal complainant, was given four days for his examination in chief -- that is, four days to make self-serving comments, with Vigna leading him along. Why the sudden impatience? Is it because, with the CHRC's own conduct on trial, it's just not as much fun as shooting white supremacist fish in a barrel?
According to several blog reports, the Tribunal chair, Athanasios Hadjis, was visibly impatient, repeatedly saying "this case is closed". In real courts, it's up to the two sides to announce "we rest our case," not for a bored judge to merely declare it. But don't bother Hadjis with such trifles. He's not a judge, so why should he pretend to act like one?
The CHRC knew that they only had to brazen it out for one day, and then they'd be free. They did what lawyers do when they need to run out the clock: they made incessant objections of any sort, with merit or without, simply to interrupt the other side and talk out the clock. Scroll down this web page to hear an audio recording of the CHRC's lawyer objecting to Doug Christie's cross examination, before Christie even asked the question. I'd sound angry, too, if I had flown from Victoria to Ottawa, to be left with merely 45 minutes to ask my questions, and to have half that time eaten up with clearly dilatory objections. But with a weak and impatient chairman like Hadjis, and a corrupt system without clear rules of procedure, why the hell not? No need to pull the fire alarm. Just interrupt until the day is done.
Dean Steacy and Hannya Rizk weren't the only CHRC staffers who were supposed to be cross-examined yesterday; Harvey Goldberg was, too. He's the master strategist behind the CHRC's "anti-hate" team. He didn't have to say a word; because Hadjis had arbitrarily ruled that the hearing would be a single day, Goldberg can hide behind the improper objections that his lawyers made last June. You'll recall that's why yesterday's hearing was called in the first place: the CHRC had claimed that its rogue investigative techniques were a state secret, and couldn't be examined. Lemire appealled that arrogant objection to the Federal Court; thus yesterday's hearing to re-ask those same questions. Goldberg never took the stand -- so the illegal objections made last year by his lawyers were allowed to stand, despite their illegality.
It gets worse. After Goldberg's examination last year, he disclosed a further 300 pages of documents. That might mean nothing to non-lawyers, but it's very important, and it goes to the unlawful, unprofessional, abusive manner in which the CHRC conducts itself. Goldberg was subpoenaed, as were his documents. Subpoenas are not invitations; they carry the weight of the law with them. They can be appealled, of course, if the recipient of a subpoena thinks they're improper. At least that's what a law-abiding agency would do. But not the CHRC. They waited until after Goldberg's examination to disclose the 300 pages. And, wouldn't you know it, Goldberg was exempted from answering questions about those pages, too. Bogus objections and defiance of disclosure obligations: if that happened in a real court, the judge would blow his stack, order the offending party to comply, assess costs against the offending party, and censure the lawyers, too. But of course, this isn't a real court.
No integrity of evidence or other aspects of investigations
Still, a number of questions were put to Steacy. You'll remember him -- he was the CHRC investigator who told the Tribunal that "freedom of speech is an American concept so I don't give it any value". He's also the one who refused to accept a human rights complaint from someone he didn't like, based on gossip about that complainant's siblings. It didn't surprise me at all to learn that Steacy is a former public sector union boss.
Steacy did make a few embarrassing admissions. But the bulk of his answers -- just like the bulk of Warman's answers on cross examination last year -- were "I don't remember" or variants thereof. Some of the things he didn't remember were investigative actions he did mere weeks ago; some of them related to standing policies of the CHRC. No matter; he just brazened it out with forgetfulness.
Stop to think about how important the integrity of investigations is in real courts -- how the chain of custody of evidence is maintained under lock and key; how every test and inspection is documented; the extreme lengths police go to, to avoid giving the accused grounds for objecting to any evidence, including oral evidence like confessions. None of that integrity is present in the CHRC; Steacy, Warman and the others don't even bother keeping notes -- or, if they do, they simply "forgot" to disclose them, like Goldberg forgot to disclose 300 pages until after his court appearance.
It is not reasonable to expect investigators to remember every detail of every conversation -- or, in this case, of every occasion they pretended to be neo-Nazis, and went cruising the Internet. That's why real investigators take copious notes, and that's why courts permit police to refresh their memory with notes taken contemporaneously with the events in question -- and that's why those notes are disclosed to the accused, too. Either the CHRC is lying, and not disclosing their notes, or their investigative integrity is abominable, because it really doesn't matter how shabby a job they do -- they have a 100% conviction rate, and that isn't about to change any time soon.
Which brings us to the matter of Steacy himself. He's blind, and he has an assistant help him function -- no doubt a double-expense that the CHRC regards as a source of pride and a symbol of how the rest of society ought to work. I think it's great that Steacy is still working despite his handicap. But being an investigator, especially where the matters investigated are words and symbols and intricate websites, requires eyesight. Keeping a lead investigator who is blind isn't just an act of supreme political correctness, it's an act that so obviously risks the integrity of the commission's work. Again, if it helps, imagine if an investigator hunting real crimes, not thought crimes, were blind. It's inconceivable that any defence lawyer wouldn't immediately object to any of the evidence that such an investigator collected, on the grounds that it was flawed; I can't imagine any criminal judge accepting such evidence -- if it related to anything important, it would simply provide "reasonable doubt" to any charge, and yield an acquittal. It's so ridiculous, it wouldn't even fly in a fictional TV show, even the most politically correct of the Law and Order series just wouldn't be able to have a blind investigator without fans jeering "yeah, right".
It also raises the interesting question, posed by Jay Currie, about Steacy's office helper. Why wasn't she examined, too? She was clearly involved with every step; it would be fascinating to compare her testimony to that of her boss, to find discrepancies. In a real court, that would be done, and Steacy's assistant would be excluded from court as he was answering his questions, so as not to skew her answers. But this isn't a real court.
Look, I think it's great that Steacy's still working after going blind -- the fact that he was the CHRC's union boss probably ensured that his lower productivity and need for another assistant wouldn't even be considered. I'm sure that, if the CHRC could, it would require all Canadian businesses to go to such lengths and costs. But even the nuttiest anti-discrimination advocate would acknowledge that there are some jobs where vision is necessary. Being a pilot is one of them; being an investigator is another. Unless, of course, accuracy, comprehensiveness and fairness are optional -- which is why the CHRC permits it.
CHRC's open defiance of the rule of law
Despite the unfairness of the procedure, there were a few moments when lawyer Barbara Kulaszka had Steacy pinned down. Again, I don't have the transcripts, but from the reports, Steacy simply refused to answer several questions put to him. His lawyer had no legal objection to them; he was there under subpoena. Steacy simply didn't like the questions, so he didn't answer them -- and Hadjis sat there, blinking, a deer in headlights. In a real court, a real judge would have ordered Steacy to answer, or be held in contempt. That's because, to a real court, Steacy wasn't just thumbing his nose at the accused, he was thumbing his nose at the legal process itself -- at the judge himself. Steacy might even have faced jail, in a real court; his employer, the CHRC, might have faced other sanctions; the case against Lemire itself might have turned on that conduct. But not in the kangaroo court of the human rights commissions and their tribunals.
One wonders why Vigna went to such a song and dance last year; one wonders why Steacy and Rizk even showed up at all yesterday. The Tribunal obviously won't do a thing to them -- Hadjis will save his punishments for Lemire. Why not? With a 100% conviction rate, the hearing itself is a game. You'd think the CHRC would put on a bit of a show for the gathered media but really, why bother?
The perfidy of the intervenors
The CHRC's conduct, as disclosed yesterday, showed evidence of abuse of process, violation of natural justice, substitution of personal vendettas for the rule of law, corruption of investigations, corrupt evidence, bias, arbitrariness and plain old sloppiness. It's hard to think of a tenet of our Canadian legal tradition that the CHRC did not violate. The Tribunal hearing itself piled on with more unfairness of its own, as outlined above. Which brings me to the intervenors in the hearing.
Stephen Harper's Conservative government was represented at the hearing by a lawyer, intervening on behalf of the CHRC. That decision was made long ago, perhaps even before the Conservatives took office. But they did indeed take office, more than two years ago, and they could have quit the case. And, even if they were unaware of the activities of a single government lawyer at first, the public scrutiny of the last few months has removed that excuse from them. More on this below.
As well, the Canadian Jewish Congress and the B'nai Brith intervened on behalf of the CHRC, too (and so did the Simon Wiesenthal Center). The CJC has been embarrassed lately, especially in the pages of the National Post, by its participation in these witch hunts. The CJC's reply -- and it seems to be the B'nai Brith's answer, too -- is that while they stand by the concept of HRCs, they oppose some of the excesses of the system. When Rex Murphy did a whole edition of Cross Country Checkup on the subject, the CJC's Bernie Farber admitted that the system needed to be "tweaked". The CJC's figurehead presidents even wrote that the CHRC needed to more carefully weed out abusive complaints, though they did so, as usual, in a very mealy-mouthed way.
Well, that's what they write publicly -- but the CJC and B'nai Brith participated in yesterday's abominable hearing, without a word of protest. They don't want to tweak the system -- that's just something Farber says when he's sitting on the hotseat on national radio. The CJC is a major part of the CHRC's thought crime system, a system that's rigged against the CJC's political enemies. They'll make occasional noises about reform and "tweaking" the system, but then they'll be right there in the Tribunal hearing, participating in an utterly compromised and abusive process. Shame on them.
There were a few specific revelations that did emerge yesterday, despite the corrupt Tribunal process. It was amazing to read about how Richard Warman -- the complainant in this matter -- simply traipsed back into the CHRC offices and used CHRC computers, pseudonyms and passwords of the very people who were investigating his complaint. Just look at that again: he was a party to the complaint, but he had full access to the CHRC's own investigation into that complaint. That's staggering. If this were a real investigation of a real crime with real police, and the alleged "victim" were to walk right into the crime lab, hop on the officers' computers, and poke around the evidence, a judge wouldn't have to throw the case out -- prosecutors would be too embarrassed to even bring the case to trial. Not so at the commission, which was in collusion with Warman, as I've documented before.
Another stunning revelation is the improper collusion between the CHRC and police, and even CSIS, Canada's spy agency. Steacy admitted that police would use their extraordinary powers to search and seize computers from people, not lay any charges against them, and then turn that evidence over to the CHRC, which would then use that evidence for their own thought crimes investigations. That sounds like, at the very least, a lawsuit against the police for breach of privacy, breach of confidentiality, abuse of office and abuse of process. The tactics of the thought police are corrupting the real police -- which is terrifying. Parliament gave many powers to the CHRC in law, but they specifically didn't give them all the powers of real police. The fact that the CHRC is undertaking secret arrangements with police departments and CSIS to use their powers is deeply disturbing.
There were a half-dozen other factoids that were troubling, but for now I'll leave those to the bloggers I linked to at the beginning of this post.
Was the hearing a success?
It was a success for Harvey Goldberg, who got out of testifying. It was a success for Dean Steacy, who stared down Athanasios Hadjis, the Tribunal chair, and simply refused to answer questions, or had selective amnesia. He got away with that behaviour, that would have put him in jail overnight in a real court. It was a success for Richard Warman, the nominal complainant, who didn't bother showing up. Why would he? He doesn't have any skin in the game -- he didn't have to hire any lawyers or take any risks. He's managed to commandeer the entire process, and he doesn't have to be there -- until the end, when he wins, and picks up his cheque, tax-free.
(That's another post for another day -- the bizarre section 14 of the Canadian Human Rights Act that states that anyone who "retaliates" against a complainant like Warman is liable to pay tens of thousands of dollars more in fines. I can see the bona fide rationale for such a rule in other circumstances, to protect whistleblowers who complain about their bosses' illegal conduct, for example. But Warman is not an employee complaining against an employer; he has nothing to do with the websites he's complained about other than joining those websites as a member. That he is somehow immune to his victims mere criticism -- again, not just immune to real harm from them, but immune to their political protests -- is deeply illiberal, is an unconstitutional "prior restraint" on speech, and is deeply one-sided.)
So the CHRC and its allies won, in the narrow sense that, as usual, the Tribunal steamrolled the respondent, and Marc Lemire will surely be convicted, and will surely be fined, and will surely have his website shut down.
But that was never in any doubt.
What's new -- the reason why I believe that Tuesday's hearing was successful for critics of the CHRC -- is that the moment the Canadian media started to scrutinize the HRCs was the moment that their illiberal conduct was most clearly on display. I'm not just talking about the conduct of the CHRC as investigators. I'm talking about the conduct of the Tribunal itself. The discreditable substance was the CHRC -- the thought crimes "police" and "prosecutors". The discreditable legal process was Hadjis's kangaroo court.
In that sense, the more appalling things went on Tuesday, the more unreasonable objections the CHRC's lawyers made, the more outrageous answers Steacy gave, the more times Hadjis sighed and said "this case is closed", when it wasn't, the more procedural aberrations -- the better. Not better for Lemire -- who was guilty before he was even investigated, guilty before he was charged, guilty before he was tried. But better for the political campaign to reform these commissions.
Denormalize the commissions, then press legislators to act
Read again my plan for fighting these commissions. It never said "try to win in the Tribunal's kangaroo court". I never said "count on the shame -- or the honour -- of the CHRC staff, or its enablers". I said: 1. Denormalize the commissions; and 2. Press legislators to act. The plan only works in that order.
The flaws of the CHRC and the Tribunal were on full display. I think that some of them were nuances that wouldn't be apparent to lay observers -- people who don't know what a real trial looks like, or how real investigators and police are supposed to act. I think that lay observers would just have a general gut feeling that something was amiss; that it doesn't seem right that the investigator claims he can't remember dozens of important details; that an interested party in the case has access to the files, etc. Without the vocabulary of the law, it's hard to articulate just how abominable Tuesday was.
Fortunately, the reporters who were in the gallery on Tuesday have all sat in on real trials before. Even if they're not lawyers, they know enough of the rules and values of our justice system, from experience and study -- I'm sure they all know better than Dean Steacy, for example, that freedom of speech is a Canadian idea, not just an American one, and it happens to be one of the "fundamental freedoms" in our Charter of Rights, a law that governs the CHRC. Mark Steyn, Charlie Gillis, Joseph Brean, Don Butler and Kady O'Malley (and perhaps others who haven't published yet) know what trials are supposed to look like, and how police, prosecutors and judges are supposed to act. The CHRC and Hadjis didn't live up to those Canadian norms. Gillis et al. are used to hearing politicians fib, evade, object or say "I forget" -- and they're hard-nosed reporters, not afraid to be scathing when they see government officials lying or abusing power. The CHRC just isn't used to being criticized -- for heaven's sakes, they even outlawed criticism from their victims, under section 14 of the Act. That criticism has already started, not because reporters like Brean and Butler are political. That's the whole point here -- unlike the pundits that have weighed in, Brean and Butler are straight-shooting news gatherers, who present both sides of the story. The fact that they are so clearly shocked by what they see is a sign that the CHRC isn't just offensive to partisans, it's offensive to anyone who understands our Canadian values. The CHRC has much more to fear from news reporters than from the likes of Steyn and me, who are discounted because we have an opinion we're pushing.
What happens now legally?
Legally, final submissions are scheduled for June 11th (which begs the question, why was yesterday's hearing cut off so abruptly after just one day?) I don't doubt that Hadjis will wait until Friday afternoon of some long weekend in the summer to release his ruling. And I don't doubt that the ruling will continue the 100% conviction rate. How could it not, with the statute written the way it is, and with the hearings rigged the way they are? Why would Lemire be any different than the rest of them? And why should Maclean's think it in turn is any different? That's my point -- fighting these commissions from within is pointless; it's rigged, and it's meant to be. The fight has to be in the court of public opinion.
What happens now in the court of public opinion?
I have no inside information, but I predict that Maclean's will run a large package on the Lemire case. They deployed a lot of resources towards the story -- first, sending a lawyer to end the secrecy of the hearing, and then in the form of three different writers in the room. Maclean's comes out in two days -- if I had to guess, this might even be their cover story.
That's 2.8 million readers, according to the PMB readership survey -- and, along with CanWest's Brean and Butler, it's building a momentum that other news organizations, like the Globe and Mail and Sun chain, can't ignore for long. For a month, this story was isolated to the blogosphere; then it was limited to opinion writers; this week, it breaks out into "real" reporters, big-time. That means reporters will build up expertise in the subject; it will become their "beat".
And there are a lot of other "new pegs" coming up this spring and summer for those new specialist reporters. Maclean's B.C. human rights hearing is schedule for late spring; I don't know when my next round will be. But I can safely say, it won't just be bloggers covering those now.
But what about Parliament?
I ask my friends in Ottawa to take the temperature for me on this issue once in a while. Last night, one minister's aide reported that his office alone had received, in the last month, 40 letters about human rights commissions, and 0 letters about the Chuck Cadman matter and 0 letters about the Obama/NAFTA leak, for comparison. I'll have to ask him how that compares to other issues, such as the Tibet rebellion. But the point is, they're tracking the matter, and the public response is encouraging. I expect those numbers to go up after the Maclean's story, and as Maclean's own trial in B.C. looms.
In other words, now is the time to switch our scrutiny from the HRCs to the Conservative government itself. Of course, we should continue to expose the outrageous conduct of the HRCs as they go along. But, other than sheer absurdities, like this case, it's unlikely that in the next year we'll have another window on the inner workings of commissions like we had on Tuesday. But we already have dozens of awful examples; we don't need any more. The commissions are being denormalized, and by people with much more influence and audience than we bloggers have.
Pressure points: Martin, Nicholson and Kenney
Now is the time to work on translating public momentum into legislative change. Keith Martin is clearly the leader in making this change, with his private member's motion. It's important that we continue to encourage him -- not just to keep his spirits up, but to advance his plan. Right now, it's unlikely that his motion will actually make it to a vote in Parliament. We need to encourage Martin to build a coalition within the Liberal Party, such as with "Blue Liberals" who are upset with how HRCs are being used to persecute Christian clergy. More important, we need to encourage Martin to meet with his Conservative counterparts, too -- which could be difficult, since Martin burned some bridges when he defected from them some years ago. I believe that Martin's obvious good faith on this motion, however, should be enough to trump any lingering hurt feelings. If anything, conservative ideologues should welcome Martin as bipartisan political cover for an amendment that might otherwise be labelled as a "right wing" change.
Rob Nicholson, the Justice Minister, is the obvious second pressure point. Not only is he the boss of the federal government's lawyer who was dispatched to the CHRC hearing yesterday, but he is also responsible for the CHRC and its Tribunal. Nicholson is a very amiable man, a happy warrior in his own right. He's just risk averse, as most politicians are, and he's not the crusading type. His attitude, if I read him right, is simply risk avoidance: he believes in putting out fires, not starting them.
I could understand that, even if I didn't agree with it, on the eve of an imminent election. But it became clear after the budget that Stephane Dion won't go to the polls this spring; and this week's open rebellion in Quebec makes me think even a fall election isn't likely. In other words, the Conservatives could pass just about any bill these days without falling as a government. If Dion wasn't going to bring down the election over Afghanistan, Kyoto, the budget, the crime bill or the Senate, he's not going to bring it down over an amendment to the Canadian Human Rights Act, one proposed by his own MP, no less.
So the risk to Nicholson is gone. While that might stop him from digging in his heels, though, it doesn't yet provide him with the positive motivation to actually do something. That's where the denormalization of the HRCs comes in. Tuesday's conduct by the CHRC was abominable by any normal standard of Canadian justice. I think the CHRC has survived politically the same way they've survived publicly -- by staying below the radar. That's gone now. And it's our job to bring the worst of the CHRC's corruption and lawlessness to Nicholson's attention -- and demand that he stop it, or insist that he wear it.
Richard Warman, Dean Steacy, Harvey Goldberg and others are all in on it together. It's unreasonable to think that any of them would discipline the system that they've created. In a real police force, Internal Affairs or the "police commission" would step in, but there's no such oversight here, and even the Tribunal is powerless to discipline them, as Steacy's contempt for Hadjis shows. The CHRC is Nicholson's baby. Steacy is Nicholson's employee. Their violation of norms of justice is Nicholson's shame -- or it ought to be. The CHRC's confessed, anonymous, online bigotry was done out of Nicholson's budget. He ought to answer for that. It would be nice if he dealt with it pro-actively, but that doesn't seem to be happening. So he should be made to wear the growing CHRC scandal, until he fixes it under pressure.
I really am surprised that no opposition MP has tried to hang the Tories with the taxpayer funded bigotry spread by Nicholson's staffers, on government time. You'd think that the Liberals or the NDP would love to tag the Conservatives with some of Steacy's or Warman's online posts -- the anti-Semitism, the anti-gay comments, and the outrageous anti-Black, anti-women comments directed at Sen. Anne Cools. You'd think it would fit their caricature of bigoted Conservatives. But if the leftist opposition doesn't care about such bigotry -- and some of them don't, because it's being done in the name of political correctness -- that's no reason for the right to countenance it.
One MP who gets this is Jason Kenney, the secretary of state for multiculturalism. Kenney has been on the right side of this issue for months, from his scrum on the subject, to his gutsy letters, to his question period answers. In a way, the CHRC is his file, too, as he has jurisdiction over human rights matters. Perhaps Kenney can be a bridge between Keith Martin and other reform-minded Liberals like Dan McTeague, and Nicholson. More to the point, perhaps Kenney can marshall the more ideological elements of the Conservative caucus -- including the Prime Minister himself -- to show Nicholson that reforming the CHRC isn't just the right thing to do, it's the politically smart thing to do, to keep the party's base happy.
Good luck to all of us
I truly believe we're winning. The HRCs are being denormalized; now we have to turn our attention to the politicians who can do something about it. Let's write to Martin, Nicholson and Kenney, and encourage them to do the right thing. Better yet, let's phone them -- and the Prime Minister, too. If we keep at them, the way we have been these past months, I believe we will see the beginnings of true reform before the year is out.