Saturday, September 20, 2008

FREE DOMINION: Was the Canadian Muslim community suckered by the CHRC?




Was the Canadian Muslim community suckered by the CHRC?



A strange question to ask, perhaps? Maybe not if one considers Item 37, a letter dated July 2006, from the Harvey Goldberg, CHRC Senior Policy Advisor, addressed to the Canadian Arab Federation. We learn from Goldberg’s correspondence that he was drumming up business for the CHRC.

That letter standing alone, may be easily dismissed as a courtesy follow up of the CHRC “pursuing their mandate”, as we have heard so often. However R17 Tab4, which is a CHRC internal memorandum, that didn’t get shredded or totally redacted, suggests something a little more in depth. This memorandum from Harvey Goldberg to Ian Fine. Page 1 notes that the Muslim community is concerned that their complaints of Islamophobia would be viewed by the CHRC as not meeting the “threshold of hate”

I note that paragraph #2 & 3 on page 2 have been fully erased from the evidence, as well as paragraph 5 on page 3. Paragraph 6, however, does return to the fact that the CHRC is willing to provide representatives for the CAF consulting organization with respect to filings of these hate crimes. Trolling for business is not a new phenomena with the CHRC. We have seen them conduct more clandestine operations, many times in the past.

This year the public was awakened to the section 13 hate complaints via the Steyn/MacLeans issue. Finally a Muslim complaint was filed on the basis of Islamophobia. I suspect the fish was bigger than the CHRC wanted to swallow.

In the Lemire Constitutional Challenge of section 13, we learned from the CHRC lawyer, Margot Blight, that exaggerated hyperbole is no excuse, that the truth is no defence and that that intent is no defence. We learned that there is no free pass for anyone. We learned that liability is absolute. We also learned about the Hallmarks of Hate. These eleven hallmarks were adopted by the CHRC from their expert witness, Dr, Karen Mock. Much was made about the credentials of Dr. Mock by the commission.

We heard from the Attorney General’s representative, Simon Fothergill, that Freedom of Speech is indeed an American concept and that America is out of step with the world and that our current social science thinking is current and updated and that the CHRC’s “Chilling Effect” of freedom of speech is OK.

We further learned that the investigative report conducted by Sandy Kovak of the CHRC stated the Steyn/MacLeans case met the Hallmarks of Hate.


35. Based on the excerpts cited by the complainant, it appears that the article may bear some of the characteristics identified by the Tribunal in Kouba as being 'hallmarks' of material that is likely to expose persons to hatred or contempt. Muslims appear to be portrayed, for example, as a 'powerful menace' (in this case, a demographic menace), and us being dangerous or violent by nature.






It is recommended, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act to request that the Chairperson of the Canadian Human Rights Tribunal institute an inquiry into the complaint if the Commission is of the view that:


*  the material does appear to meet some of the hallmarks of hate and is of such a nature that it may likely expose persons of the Muslim faith to hatred and contempt;


*  a decision by the Tribunal addressing the fact situation in this case may be in the public interest as it raises new considerations regarding the relationship between section 13 and the right of freedom of the press, an aspect of the Charter guarantee of freedom of expression.


CHRC Investigator’s Report

March 25, 2008

Investigator:  Sandy Kozak



This would seem to be the defacto threshold level the commission uses. As such, it met the threshold that the Canadian Muslim community was concerned about. Additionally we learned that the investigator’s report recommended that the Steyn/MacLeans case be prosecuted via a Tribunal hearing. For the public who was following the Steyn/Macleans saga, it is well known that prosecution did not follow. The claim was rejected at the Commissioners (political appointee) level in the CHRC.

Rejected or deemed too politically hot ? It met the Hallmarks. It met the threshold. The truth of the Steyn article is no defence. The intent of the Steyn article is no defence. There is absolute liability on MacLeans for producing the article. What was the reason ?

Did the Canadian Muslim community reach for too big of a fish on their first try? Were they expected to seek out basement Islamophobes pecking away on their parent’s computers and posting on obscure websites – seek those who could ill afford legal defence as has been the case with the overwhelming majority of section 13 cases so far ?

Why were they trolled for business? Was there an expectation that prosecution of a neo-nazi-like islamophobe who would be ill equipped to defend himself would lead credence to the CHRC mantra that this section 13 law protects all Canadians? With a 100% conviction rate, would that type of result been waved as a some sort of flag to fend off a constitutional challenge of the bias and abuse we have seen at the CHRC ? A proof, a case precedent, to illustrate that the law applies fairly to all Canadians?

Or was it because of who the Canadian Muslim community is? We were not told why a decision was made by the Commissioner to toss out the Muslim community’s complaint. Nor were we told how as to how this decision was arrived. We were told by the Attorney General that it depends on who says the truthful statement and that if one person says it, it is Ok, but if another says it, it is not OK. Are Steyn and MacLeans OK people ? Where is that list ? Who might have that list ?

The Attorney General went on and stated that unless someone can prove that decision was political, it wasn’t political. He went on to inform us that the investigator’s report on the Steyn/MacLeans case, read to the hearing, was poor quality evidence. He further informed us that it depends upon whether articles posted are speaking on behalf of Canadians or speaking on behalf of conservative organizations.

And we wonder why the Canadian Muslim community says there is an anti-Islamic bias in this country. Have we just treated the Canadian Muslim community as less than equal?

Fair question. Paul Fromm, on behalf of the Canadian Association for Free Expression noted in his submission to the Tribunal, that overwhelmingly, the respondents in section 13 cases were economically disadvantaged, lower educated and marginal white, right wing Christians. The statistics would seem to flush out this position as a truth. We have a selected group that fit that Attorney General definition of “conservative organization” who are unequally persecuted. It seems we now have a second group, the Canadian Muslim community, who is also treated as less than equal.

Club membership is growing.








Dismissal of Maclean's case wrong: Elmasry

Joseph Brean, National Post
Published: Saturday, September 20, 2008

CHRC Submission; Comments rare departure from Muslim leader's silence on issue

Mohamed Elmasry, president of the Canadian Islamic Congress, writes that "the state should act to empower those who are disadvantaged by hate speech, and that may mean lowering the voices of some in order ...

Hate speech creates a "silencing dynamic" that excludes disadvantaged groups from civil participation, according to Mohamed Elmasry, national president of the Canadian Islamic Congress.

In a submission to Richard Moon, a University of Windsor law professor hired by the Canadian Human Rights Commission to review its online hate speech mandate, Prof. Elmasry writes that "the state should act to empower those who are disadvantaged by hate speech, and that may mean lowering the voices of some in order that others may be heard."

He called for mandatory press councils, and an end to "media monopoly," and said the CHRC was wrong to dismiss his recent complaint of Islamophobia in Maclean's magazine, which "aired its opinions to more than two million readers, but CHRC did not hold a hearing for Canadian Muslims and experts to voice their views."

His comments are a rare departure from the public silence the controversial Muslim leader has taken on an issue in which he is deeply invested.

Since initiating hate speech complaints last year against Maclean's in Ontario, British Columbia and federally, Prof. Elmasry has delegated spokesmanship to lawyer Faisal Joseph and a group of young articling lawyers. Only British Columbia heard the case, but has yet to rule.

The lawyers also prepared a brief for Prof. Moon, in response to questions he provided: what would be lost if the hate speech provision of the Human Rights Act, Section 13, were repealed; how might it be improved; should it require an intent to spread hate; and what other complaint mechanisms for hate speech might be enhanced.

Prof. Elmasry compared hate speech laws with speed limits as examples of "worthwhile" exercises of state power.

"The old idea that the state is an enemy of freedom should not be replaced with the idea that it can be a friend of freedom by not dealing with hate speech regulation," Prof. Elmasry writes.

"The current mantra that 'the remedy for hate speech is more and better speech' is in fact both false and misleading. The reality is that those who are expected to respond with 'more and better speech' cannot do so in today's public forum. Or if they do speak out, their words are often dismissed as lacking credibility."

The CIC legal brief argues that removal of Section 13 "would remove the only practical avenue available for addressing hateful and racist speech in the media."

It also blames "political pressure" for the CHRC's decision not to refer the federal Maclean's complaint to a tribunal, and cites this as a reason for the CHRC to emulate Ontario's newly revamped human rights legal system, in which access to a tribunal is much more direct.

The CIC dismisses the suggestion of an intent requirement for hate speech law, and says the complaint process does not put undue burden on respondents.

Complaints of hate speech, it argues, "by their very nature feature underprivileged complainants who in most cases have experienced an infringement of their human rights, pitted against well-re-sourced entities."