Monday, March 3

Section 13: The devil is in the details, and did the Sock Puppets talk themselves over the cliff?

On Saturday Mark Steyn reported that the Ontario Human Rights Commission (OHRC) declined to hear Mohamed Elmasry's complaint against Maclean's "on the grounds that they deal in denials of service on the basis of race, creed, etc., and a magazine is not a 'service.' "

He also made observations that I don't understand. He wrote that now that the Ontario complaint has been declined:
Just for the record, this now means the Sock Puppet Three have nothing to do with either of the [two Section 13] cases that are going forward. They are no longer even potential complainants.
For readers still getting their bearings in the story, the "Sock Puppet Three" is Steyn's way of referring to three of the four law students who demanded that Maclean's publish their rebuttal to an article by Steyn. For months the four co-authored op-eds to defend their position but recently one of them seemingly dropped out of the mix.

In all the op-eds the Sock Puppets stated that they were the complainants in the Section 13 filings against Maclean's et al., whereas the complainant is actually Elmasry. (That's why Steyn dubbed the students Elmasry's sock puppets.)

I don't understand why Steyn assumes that with the Ontario complaint gone, this means the students will also be gone.

Maybe Steyn's attorney knows something I don't. But Elmasry's complaint with both the BC and federal commission makes an issue of his version of the treatment that the students received from Maclean's when they demanded the magazine publish their rebuttal to Steyn's article.

So I'd assume that Elmasry would still call those students as witnesses in both hearings -- unless, the BC tribunal and the CHRC threw out that issue. Or unless Elmasry's lawyer decided that the Sock Puppets' testimony would be a liability.

As to why they might be a liability: there are two very different versions of what was said in the Maclean's office. First there is the students' version, which Elmasry quotes in his complaints. Second, the version from the editors who met with the students.

The editors' version includes the allegation that the students demanded money from the magazine. Although I don't know exactly what was said, in the context of the confrontation the alleged demand sounds like an extortion attempt.

Another possible liability is that since December 2007, the Sock Puppets have been announcing all over Canada that "they" filed the Section 13 complaints because they "wanted" to have equal space to rebut Steyn's article and Maclean's wouldn't give it to them. But that reason is a clear manipulation ("misinterpretation," if you want to be polite) of the wording and meaning of the Section 13 code.

That might be why Steyn chortled bye-bye to the students. The Sock Puppets might have talked themselves over the cliff.

I guess we'll have to wait and see, to learn whether we've heard the last from the Sock Puppets. For now, I am very happy that the Ontario complaint is kaput.

The good news brought forth a mixed reaction from StatGuy, who's one of the Canadian bloggers fighting for freedom of speech in their nation. He titled his post Maclean's gets off on a technicality and wrote:
This is good news indeed but, at the same time, a little disconcerting. In a classic display of inside-the-box bureaucratic thinking, OHRC turned down the case only because it didn't fit into their neat little definitions.
Actually, the OHRC did not dismiss the complaint on a technicality. This can be seen if you study the questions on the complaint form that Elmasry filled out, and his answers.

Yet there is a technicality in play; once you note it you can also spot the devil in the details. So let's embark again on a journey through the maze:

A post by Mark Steyn provides PDF links to all three complaints against Maclean's et al. Go there now, if you haven't yet done so, and study the OHRC complaint.

What jumps out, when you study the complaint form, is that Elmasry ignored the OHRC criteria for filing a discrimination complaint. And he supplied his own meaning for "service" and service denied.

So it was a specious complaint and on that important point, which directly relates to upholding Ontario's discrimination laws, the HRC rejected the complaint.

Why then, if the services denied complaint was specious at first glance to the commission, did the OHRC sit on the complaint for several months? Why didn't they immediately return the form and tell Elmasry that it was improperly filled out?

It's possible the reason was 'political,' as some have speculated. Yet there's a practical reason that could explain the long delay in the commission's decision:

Study Elmasry's language in the OHRC complaint. Readers who are familiar with Section 13 will note that he's mixing up a Section 13 "hate message" complaint with a complaint about an act of discrimination involving a denied service. Hate message; service denied: two different things.

And he doesn't mention on the Ontario complaint form that he has filed a Section 13 complaint with the federal HRC (Canadian Human Rights Commission), which has a mandate to review such complaints.

If I recall correctly, the PDF of the OHRC complaint form does not show a date for when it was filed or received at RCI's legal department (which handles the complaints against Maclean's et al.). And if memory serves, the Section 13 complaint was received at the CHRC (federal commission) or sent to RCI on or around September 18, 2007.

If Elmasry had not yet filed with the CHRC, or if the Onatario commission was unaware of such a filing, the OHRC might have had to consider whether to accept the 'hate message' part of Elmasry's complaint, even though the "service denied" part was specious.

In any event, within the past couple months the wide publicity given the Maclean's affair surely brought it to the attention of the OHRC that Elmasry filed a Section 13 with the federal commission, and that the complaint would be heard by the tribunal connected with the CHRC. That might explain why the Ontario commission could finally reject Elmasry's complaint.

If you go next to the PDF of the British Columbia complaint form, you'll see that Elmasry did the same as with the Ontario complaint. He ignored the criteria stated on the form for filing a complaint; he filed partly on the basis of services denied, and supplied his own meaning for services denied. And he included what is clearly a Section 13 complaint.

If I recall the BC form is dated April 20, 2007. Remember that the federal complaint was filed months later, in September. So, as with the Ontario commission, the BC human rights tribunal was faced with a mixed complaint (service denied + hate message) and at that time, Elmasry had definitely not filed a Section 13 with the CHRC.

Here one might ask why the BC human rights tribunal didn't simply return the form, tell Elmasry that it was filled out improperly, and suggest he file a Section 13 with the federal commission regarding his complaint about hate speech.

It's possible that BC discrimination law gives a wider interpretation to "services" than Ontario. I haven't studied either set of laws. However, the wording on the BC complaint form makes it clear what is meant by "services" and by service denied. And this meaning comports with the meaning of "services" shown on the Ontario complaint form.

This opens up a line of questions. If BC and Ontario have virtually the same criteria for a service and a service denied, why would the BC tribunal go ahead with a hearing, once they learned that Elmasry had filed a Section 13 with the federal HRC? Why wouldn't they reject the "service denied" claim, as Ontario did, and tell Elmasry that he could seek relief from the federal commission for the hate message complaint?

It's possible the BC tribunal set the hearing date (June 3) before they were aware that Elmasry filed the Section 13 with the CHRC. But I find it likely that at this point they're aware of Elmasry's Section 13 and that it's been accepted by the CHRC for a tribunal hearing.

Of course one doesn't need to take a hate message complaint to the federal commission; a provincial commission/tribunal will hear it. Yet it does seem redundant if the same complaint can be heard by two different bodies -- not to mention that this deprives the respondent of the constitutional right to be protected from double jeopardy.

In theory at least, if both bodies find in the complainant's favor they can impose different penalties on the same respondent for the same complaint.

But now return to the PDF documents. Note the respondents named on the CHRC complaint form and the British Columbia Tribunal complaint form. The respondents are different, aren't they?

From memory, the respondents on the BC form are Ken MacQueen, the British Columbia editor for Maclean's; and Maclean's magazine.

The respondents on the federal form are two other Maclean's editors, what may be an employee of Rogers Communications, and Rogers Communications. Maclean's magazine is not named as a respondent. Now why is that?

Because Elmasry is going after Maclean's on the Internet in the federal filing, and going after the hard copy of the magazine in the BC provincial filing.

So on a technicality, the federal and BC provincial filings are not redundant.

There's the devil in the details. So let's have no more wondering about whether Elmasry and his attorney understand what they're doing.

Why did Elmasry pick British Columbia? And why not file a complaint in all the Canadian provinces, given that Maclean's is a nationally distributed magazine? I don't know -- I don't even know whether Maclean's has an editor for every province.

I'll take a shot in the dark regarding the second question. Mark Steyn reported several weeks ago that Naiyer Habib is a co-complainant with Elmasry in the BC complaint. If you study the PDF of the complaint, as of April 2007 Elmasry is shown as the sole complainant. That suggests Habib was added at some point after the original filing.

Why was Habib added? Possibly because he's not controversial, as is Elmasry. However, Elmasry is not a BC resident; I don't know about Habib but if he is a resident, it's likely that the BC tribunal told Elmasry that they couldn't hear the complaint unless he found a resident of BC to act as co-complainant.

So it's possible that Elmasry didn't file in every province simply because he couldn't find a resident in every province to be a co-complainant with him.

No comments: