Liveblogging the BC Human Rights Tribunal

I am posting the first few postings from Andrew Coyne who is live blogging the BC Human Rights show trial....soliciting freeper comment and updates throughout the day.

So we are in, and almost ready to go. As trials of the century/year/week go, this one is decidedly down-market: the courtroom would make a good walk-in closet. Maclean’s legal team is out in force, a phalanx of half a dozen suits. The opposing counsel, by contrast, is one suit and two or three badly-dressed juniors. If I didn’t know the stakes, I’d be rooting for them. Actually I am rooting for them, in a strange sort of way. Don’t tell my employers, but I’m sort of hoping we lose this case. If we win—that is, if the tribunal finds we did not, by publishing an excerpt from Mark Steyn’s book, expose Muslims to hatred and contempt, or whatever the legalese is—then the whole clanking business rolls on, the stronger for having shown how “reasonable” it can be. Whereas if we lose, and fight on appeal, and challenge the whole legal basis for these inquisitions, then something important will be achieved. Hang on, we’re starting…

9:45 AM PST The Chair is reviewing the legal history of the complaint. Apparently they have no jurisdiction over the Maclean’s website. So that’s a relief…

9:48 AM We have friends: the BC Civil Liberties Association and the Canadian Association of Journalists are here as intervenors.

9:54 AM Lawyers for the two sides are wrangling now over what witnesses the complainants are going to call, and whether “my friend” had properly informed “my friend” as to what “my friend” (the first one) had planned…

9:56 AM The three member-panel has entered, chaired by Heather MacNaughton. She hasn’t gotten six words out before one of the spectators shouts out, “could you speak up please?” To her credit, she takes it in stride…

10:07 AM Lead counsel for the complainants (i.e., Mohamed Elmasry and the Canadian Islamic Congress) is Faisal Joseph. Leading off for Maclean’s is Roger McConchie, a BC human rights lawyer; Julian Porter will be coming on later to do the cross-examinations…

10:18 AM They’re going to call, among others, Dr. Andrew Rippon, professor of Islamic Studies at the University of Victoria, to show that Steyn has misunderstood the relationship between the Koran and Islamic society. Well, that’s as may be. Would be a good subject for debate. But why exactly does that require the state to adjudicate it?

Okay, I could probably make that point after every line. Not saying I won’t…

10:19 AM Section 7.1 of the BC Human Rights Code is the relevant legal text, prohibiting exposure to hate.

10:20 AM “Proceedings before the human rights tribunal are considerably less formal than before a court,” the chair advises. Yes, indeed: unburdened by stuffy old rules of evidence, for example…

10:26 AM Oh God: they’re talking about who they’ll be calling on Friday. Five days in a windowless room. If that’s not a human rights violation…

10:29 AM Now recounting the tale of the Osgoode Hall law students, with their “reasonable” demand for Maclean’s to publish a “meaningful” response. I’m guessing the definition of “meaningful” will come into play. In this case, it meant a 5000-word article which Maclean’s could not edit, accompanied by a cover of their own design which Maclean’s could not alter…

It gets worse...

10:33 AM
Cites “hundreds of thousands” of supporters, including the Canadian Federation of Students, Ontario Federation of Labour, Canadian Nurses Association…

They’re not trying to have speech “criminalized.” Just trying to right a terrible wrong. “You (the tribunal) are the only thing standing in the way of racist, hateful Islamophobia, etc.” And he’s finished…

10:34 AM
Faisal Joseph opening now… “A national media organization that consistently and persistently denigrated Canadians of Muslim origin … while refusing to offer any meaningful reply…”

Quotes from Steyn article. Cites 20 other “similar” articles in Maclean’s over a two-year period, to show “context.”

10:37 AM
Islamophobia is the real issue. Steyn’s article shows “multiple hallmarks of hate.”

10:48 AM
He’s quoting various intemperate blog posts—written by people with no connection to Steyn or Maclean’s—to make the point that Steyn’s article encouraged others to view Muslims with hatred.

10:51 AM
He mentions “the tremendous power of mass media, and its columnists, to influence public opinion. This is undisputed.” Oh, I don’t know: I’d dispute it.

10:54 AM
Joseph cites a number of previous prosecutions. “The pattern is clear: those hauled before the human rights tribunal howl about censorship.” Well, yes. It’s not crying wolf if the wolf is in fact at your throat…

10:55 AM
So he wants the tribunal to order Rogers to publish … something, in the name of “balancing” free speech against the right to be free of discrimination.

10:59 AM
Just coming back from a break. Lots of media interest, it seems: CBC, CTV (I’m told), the National Post, local media, and a guy from the New York Times, who’s doing a piece comparing how the two countries’ legal systems deal with speech cases. Needless to say, he can’t believe what he’s witnessing…

11:13 AM
McConchie is pointing out that Elmasry is in fact from Ontario. Does he in fact speak for any aggrieved party in BC?

Under Section 7.1, he continues, innocent intent is not a defence, nor is truth, nor is fair comment or the public interest, nor is good faith or responsible journalism.

Or in other words, there is no defence.

11:16 AM
Incidentally, if you’re wondering why these dispatches are so (uncharacteristically) terse, I’m having to write on a Blackberry—there’s no wi-fi in here. Not to mention light, air, water…

11:22 AM
McConchie goes on: whether or not we agreed to publish the “response” sought is irrelevant. It wasn’t in their original complaint, and it’s not grounds for claiming “discrimination” under Section 7.1.

And he’s done.

11:23 AM
Now we’re on to whether to hear evidence from Professor John Miller, with regard to the Canadian Association of Journalists’ application for intervenor status. He’s a prof at Ryerson, former adjudicator for complaints at the Toronto Star, and a researcher on media representation of minorities. Joseph wants to call him to show “context,” how other media deal with “balance,” etc.

1:34 PM PST
And we’re back, with more gripping testimony on what my friend objected to in my friend’s representation of my friend’s deposition…

1:36 PM
The chair is reading their “ruling” on the admissibility of Prof. John Miller’s testimony—though on what basis they propose to decide is a mystery, since THERE ARE NO RULES OF EVIDENCE. They more or less have to make it up as they go along.

Anyway, they are ruling it inadmissible, because it’s irrelevant. Or is it irrelevant because it’s inadmissible?

1:39 PM
Also ruling on Khurrum Awan’s testimony, as an Ontarian. They’re going to take it, but rule on particular bits of it as they come up. Sigh.

1:42 PM
So now we’re going to hear about how the article affected him. He says Steyn didn’t distinguish between diffferent types of Muslims, painted all with a broad brush. He’s going through the more inflammatory passages in the article…

1:43 PM
He’s having trouble finding the one he wants. The chair helpfully suggests where he might find it.

1:48 PM
It occurs to me that most of the material he finds objectionable—and I’m not saying it’s unreasonable of him to take exception to it—might be found in the testimony before the Bouchard-Taylor commission…

1:59 PM
On the other hand, we’re walking through another passage—which Faisal Joseph notes is particularly significant—in which Steyn particulalry disavows any suggestion that his concerns attach to all Muslims, but rather that the trends he observes prevail in “enough” of the Muslim population of Europe to be worrisome. This strikes me as eminently arguable—but whether it is or not, it is just surreal in a free and democratic society to be calling in a government panel to decide it. Instead of, you know, arguing it. Okay, that’s the second time I’ve made that point. I warned you…

2:13 PM
Julian Porter on his feet, objecting on territorial grounds, as Awan details how the article made him feel as he read it in downtown Toronto. Overruled.

2:23 PM
Awan debated going to press councils, or pressing charges under the criminal code, but decided against. He looked at human rights legislation across the country. Differences: Ontario says you can’t post a “notice, sign or symbol” that would be discriminatory—newspapers and magazines, it would seem, are not covered (as indeed the Ontario Human Rights Commission recently ruled). But hey, worth a shot. Plus BC had more open-ended legislation. So throw it in the mix as well. So: They weren’t trying to “damage” Maclean’s by filing in multiple jurisdictions. No no no. They were just jurisdiction-shopping.

2:26 PM
Now they’re into the whole sorry history of Maclean’s coverage of Muslims. Or they would be, had counsel not objected. It would be fascinating to see some of these, since in my experience the CIC sees Islamophobia virtually everywhere…

2:46 PM
Roger McConchie is making a kind of “prior history” argument, i.e. the complainants are saying that the other 20 articles provide “context.” But the complaint has to do with just the Steyn article. Just as a defendant’s prior record cannot be used against him (except as “similar fact” evidence, to show a modus operandi), so Maclean’s prior articles can’t be used to prove the harm caused by Steyn’s piece. The common thread: you have to prove guilt based on the facts of the case at hand. If the argument is that the earlier articles provide an interpretive filter through which to read the Steyn piece, well maybe they do—but the contention in the complaint is that the Steyn article exposes Muslims to hatred by itself. So they’re contradicting themselves.

2:58 PM
Coda to the preceding: this all assumes normal rules of evidence apply. Or indeed, any. But as they don’t in this case, well, we’re about to hear the tribunal’s ruling.

3:00 PM
Glory glory—they’re ruling prior articles (i.e., prior to Steyn’s Oct. 23 2006 piece) out of bounds, but allowing subsequent articles. Solomonic, or incoherent? I report, you decide.

3:02 PM
Now we’re hearing about the Muslim law students’ famous meeting with Maclean’s—almost a year after the article appeared—when they demanded the magazine publish their reply.

3:16 PM
They met with Ken Whyte (publisher and editor-in-chief), Mark Stevenson (editor) and Julian Porter (lawyer). The students presented their complaints for about five or ten minutes. Whyte replied, according to Awan, that Maclean’s “wasn’t interested” in publishing their reply or in making “a donation” to a race relations group. Whyte said he “didn’t share” his concerns about Steyn’s piece, and that there were “important subtleties and distinctions” in the piece he was overlooking, and you can’t characterize us as anti-Muslim. Awan told him Maclean’s has published a whole bunch of anti-islamic articles. And the famous “we’d rather go bankrupt” line—as in, we’d rather go bankrupt then let someone else edit our magazine, which is what the students’ demands amounted to—not, as Awan suggests, that we would rather go bankrupt than publish any sort of reply. In fact, Maclean’s published 27 letters in the weeks following Steyn’s piece.

3:26 PM
All of this, so far, is within their rights. They have a right to be offended by Steyn’s piece. They have a right to complain about it, to denounce it, argue against it, ridicule it, and so on. They also have a right to issue whatever outrageous demands to Maclean’s they like, just as Maclean’s has a right to give these the back of their hand. What they don’t, or shouldn’t have a right to do is what happened next: taking their case to the cops. Or rather not the cops, but multiple human rights tribunals.

3:30 PM
I’m infamous! Awan just cited my own article on the case (”Got a complaint? Call 1-800-Human Rights“), as evidence of I’m not sure what…

3:41 PM
L-o-n-g discussion about subsequent backing and forthing between Maclean’s and the students, wherein they offered to withdraw their complaints if Maclean’s yielded to their demands. This strikes me as supremely beside the point. If the article was as damaging as alleged, if it was sufficient by itself to expose Muslims to hatred, that would remain the case regardless of whether Maclean’s published a rebuttal. Or if counter-arguments were sufficient to mitigate the damage, well, that’s really Maclean’s point, isn’t it? The students’ “offer,” it seems to me, is revealing: if all they want is a right of reply, then all they’re saying is that they disagree with it. Which takes it out of the realm of the courts, kangaroo or otherwise.

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