Thursday, March 20, 2008

LEVANT: Even the human rights tribunal is sick of the human rights commission



Even the human rights tribunal is sick of the human rights commission


Today, a one-man Canadian Human Rights Tribunal ruled that his imminent hearing into the conduct of Canadian Human Rights Commission staff will be open to the public. This is a direct result of not only Maclean's magazine's legal application, but also of dozens of Canadians writing to the tribunal and, frankly, of the blogosphere's efforts to peel back the layers of the CHRC's secretive workings.

The CHRTribunal is no friend of freedom or fair play. As noted by many, it has a 100% conviction rate; it is not presided over by real judges; its procedures are arbitrary, not the reliable rules of procedure that exist in real courts; and the victims of these tribunals must pay their own way, whereas the investigators and prosecutors at these tribunals -- the CHRCommission, where folks like Dean Steacy work and Richard Warman used to work -- have the unlimited resources of the state. But even the CHRTribunal was appalled by the CHRCommission's latest tactics in its endless war against thought crimes.

Here is the ruling issued today by that tribunal member, Athanasios Hadjis. The effect of the ruling is very simple: the public will be allowed to attend the hearings next Tuesday (though cameras will not be permitted in the hearing room). But far more interesting is the additional commentary -- obiter dicta, as lawyers call it -- that Hadjis thought proper to add to his simple order.

Hadjis recalled the shenanigans that the CHRC pulled last year when commission staff were about to be cross-examined. He noted that the CHRC staff simply refused to testify -- despite being subpoenaed -- unless the public was excluded. The CHRC's lawyer buffaloed the tribunal into censoring the hearing, threatening to invoke section 37 of the Canada Evidence Act (a section reserved for matters like national security) and simply refusing to attend, subpoenas be damned. Hadjis wrote:

I issued my ruling regarding the exclusion of non-parties from the hearing room orally that

morning. The ruling was premised in large part by this looming likelihood that the Commission

would invoke s. 37 unless the “measures” that it was demanding were “put in place”. The hearing

proceeded but the Commission nonetheless invoked s. 37 numerous times to object to questions

posed by Mr. Lemire’s counsel to Ms. Rizk and Mr. Steacy. The Commission alleged public

security concerns in making its objections.

In other words, the CHRC said that if Hadjis didn't make the trial secret, they'd invoke the section 37 national security exemption, and simply refuse to testify. So Hadjis appeased them, and banned the public from the hearing -- and the CHRC invoked section 37 anyways. Even an illiberal "judge" in a kangaroo court doesn't like being lied to. But it gets worse:

Mr. Lemire later challenged those objections before the Federal Court, which has the

exclusive authority to rule when such matters arise before the Tribunal. Interestingly, however, it

appears that a few weeks before the January 15, 2008, Federal Court hearing into these objections,

the Commission disclosed to Mr. Lemire the information that was the subject of the s. 37

application. The Court therefore determined that since the information had been disclosed, it

could no longer “properly” consider the s. 37 application, which the disclosure had effectively

rendered moot. In effect, the Commission disclosed the very information that it had previously

claimed could not be disclosed pursuant to s. 37...

[9] The outcome of the s. 37 matter gives me pause to question the soundness of the

Commission’s invocation of public security concerns with respect to the testimony of these


Translation: it's obvious to Hadjis that the CHRC's section 37 objections were not real -- they were just excuses to bully Hadjis into clearing the court and avoiding his subpoenas. The fact that the CHRC dropped their section 37 objections just before a real court was about to surely rule against them just proves what I've been arguing all along: human rights commissions and tribunals are kangaroo courts, where rule of law doesn't matter. Only the threat of adult supervision by the Federal Court made the CHRC drop their fake objections.

There has always been a quiet compact between the CHRCommission (the kangaroo investigators and prosecutors) and the CHRTribunal (the kangaroo judges and court apparatus): each would pretend that they were operating as parts of a legitimate legal system, even if there was a nod and a wink between them as they ground out a 100% conviction rate by systematically violating norms of natural justice. But the CHRC broke that deal -- when Marc Lemire started using the Tribunal's rules against the CHRC, the CHRC started treating Hadjis and the CHRTribunal with contempt, making absurd objections and doing whatever else it took to avoid Hadjis's authority.

But the fear of the Federal Court has caused the CHRC to drop its absurd national security objections; and so now they're back before Hadjis. Fool me once, the saying goes, shame on you; fool me twice, shame on me. Hadjis read the embarrassing whine that that CHRC filed as a legal "argument" for keeping out the press again, and smacked it down hard -- essentially calling the CHRC liars. Tuesday's going to be interesting.

Or will it?

The CHRC's section 37 national security objection is gone. And the Tribunal's secret trial provision is gone. Does this mean that we really will get to hear about the inner workings of the CHRC? Maybe. But the CHRC still has a few tricks up its sleeve yet.

Do you think a rogue, secretive, abusive organization that regularly defies the rule of law -- hell, forget those abstract principles; how about the embarrassing political optics of an "anti-hate" agency that admits to posting hateful messages on the Internet itself -- would really go willingly into Tuesday's hearing, with the national press assembled there to record their every misdeed and malefaction?

The CHRC already tried the "but they're angry at us" argument. I think it's just as likely that we'll get the "I'm not serene" objection next.

What's that? The CHRC tried it last year, and it worked. Look at this bizarre exchange last May (at page 4867 of this transcript). It literally goes on for 20 excruciating pages of stenography. Mr. Vigna was the CHRC's lawyer, and the way he ground the hearing to a halt reminds me of a student pulling the fire alarm to get out of writing an exam. Here are just a few excerpts. You really must read the whole thing. Do it for the laughs alone -- it's really better than reading fiction. If this were a TV courtroom show, audiences just wouldn't buy it -- it's a farce, not a drama:

MR. VIGNA: Sorry. Mr. Chair, I don't have the flu but I don't feel in a serene state of mind to proceed with the file today. I don't feel very well. I feel dizzy, I feel anxiety, and I am not in a serene state of mind to proceed with this file today.  

I have a lot of things worrying me right now and I don't want to elaborate, but my colleague said, Mr. Fine, there are some certain incidents that have occurred which I don't feel at liberty to elaborate right now, which have had an impact on my ability to proceed in a professional way on this file, at least for today, because I wouldn't be rendering the Commission a just service by proceeding in this condition.  

I am not dying, Mr. Chair, I don't have the flu, but I am not mentally capable of proceeding under these circumstances.

THE CHAIRPERSON: But the witness is here?

MR. VIGNA: The witness is here. It's not the question of the witness. The witness is here. I thought until this morning that I would proceed, but I really don't feel primarily mentally able to proceed, and physically too.

MS. KULASZKA: I am very concerned about this very hush hush allegation that some sort of breach of security has happened. The only people who have been here for the last two days are us, either counsel or a representative of the party. No one else has been here in this room. I know of no incident outside that's happened....

MR. CHRISTIE: I have heard two explanations which are as frivolous as any I have ever heard in justifying an adjournment of a whole proceeding… To say I am not feeling well, but sit here and talk about it, is inconsistent. There is no medical certificate, and I heard very faintly Mr. Vigna say I'm not physically sick, I don't have a serene state of mind. Very few of us in the difficulties we face always have a serene state of mind. I don't know what that means.

This is not a case of a nervous breakdown or a mental state justifying a psychiatric examination. I am certain of that. To say I don't feel like doing it today is insulting... 

MR. VIGNA: Mr. Chair, I will provide a medical certificate.

THE CHAIRPERSON: Please sit down, Mr. Vigna.

MR. VIGNA: I feel insulted by that comment.

THE CHAIRPERSON: Please sit down.

Now that kind of acting, that plain old brazening it out, that looking someone right in the eye and fibbing, that fantasism, takes a lot of chutzpah. But Vigna did it without blushing. Vigna's gone -- perhaps like Ms. Rizk he went on stress leave.

Do you think the CHRC's lawyers have the gall to try a gambit like that on Tuesday with the press there? It's a tough call: face national execration and ridicule for pulling a transparent stunt like that; or face national execration and ridicule for the abusive way the CHRC conducts its thought crimes investigations. That's called a lose-lose proposition.

I'd say there's a 50/50 chance the CHRC's lawyers or staff will pull a Vigna vignette and claim they've lost their "serenity" and scupper the hearing -- or pull the fire alarm, or do some other childish stunt of the same calibre as their childish Internet costume parties where they dress up as bigots, but then later say they didn't mean it.

A Vigna vignette would be humiliating and cowardly -- but a humiliated coward survives. I don't think the CHRC can politically survive the full disclosure of their dirty tactics.

Read the transcript, and tell me what you think is going to happen on Tuesday.