Friday, May 2

Human rights tribunals and velvet totalitarianism

"What emerged from the Mahmoodi-Dutton tribunal hearing was a disturbing truth. The British Columbia Human Rights Tribunal is a parallel court system out of control."

My evil twin, who is obsessed with details, happened to be looking over my shoulder yesterday when I studied the 90 day British Columbia Tribunal Hearing Schedule. The schedule reveals that the complaint filed by Mohamed Elmasry and Naiyer Habib is no longer against Maclean's and Ken MacQueen but against "Rogers Publishing, Ltd." and MacQueen.

The schedule also shows that the complaint is not filed under the Human Rights Act Section 13(1) code, which I tentatively assume can only be reviewed by the CHRC (Canadian Human Rights Commission). The BC complaint is being heard under Section 7 of the British Columbia human rights code:
Discriminatory publication

7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or

(b) is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

Do I hear a collective groan from M-446 supporters? Yes; getting rid of Section 13 won't be much help if every Canadian province has a human rights code that contains wording similar to (b), which is virtually the same used in the key phrase in Section 13.(*)

(The hearing schedule notes that the Section 7 complaint addresses "religion" as the specific area of discrimination in the Elmasry/Habib complaint.)

This might partly explain the great confidence displayed by Canadian Islamic Congress lawyer Faisal Joseph at Wednesday's press conference.
"If Maclean's is ready to consider an opportunity for the Muslim population to have its say, we are ready for reasonable conciliation ... One way or another it's going to be dealt with, either by agreement or by an imposed decision."
Joseph may not be bluffing. He may figure that even if his clients lose the Section 7 complaint in BC, there is a good chance that the CHRC tribunal will hear a version of the BC complaint under Section 13.

Another part of Faisal's confidence may stem from the BC Tribunal's approach to discrimination complaints. Months ago I read speculation that the Maclean's respondents might get something akin to a fair hearing because the BC tribunal was now loaded with attorneys.

The question is whether the tribunal's basic approach has changed since a sensational discrimination case several years ago; during that hearing the tribunal acted overtly as a prosecutor -- and a criminally unethical one, by the standards of a fair code of justice.

It would be instructive to review the case because whether or not the tribunal has changed their procedure somewhat in the intervening years, the underlying situation has not changed.

The details of the Mahmoodi-Dutton hearing are so horrifying that I think the tendency is to assume it represents an extreme case of a miscarriage of justice. But the miscarriage is built into the system of the human rights tribunals.

I venture this is something that Alan Borovoy and other leading civil rights defenders are having a hard time fully confronting. I think they'd prefer to narrow the issue to one of free speech, and by such means satisfy themselves that tinkering with the wording in various codes will be enough to restore justice.

There can be no restoration of justice in Canada; not until the society acknowledges that a nation can't have a shadow justice system and remain under the rule of law.

by Professor James Steiger,
University of British Columbia

In a decision that prompted outraged responses from many private citizens and media figures, the B.C. Human Rights Tribunal ruled in favor of complainant Fariba Mahmoodi in her sexual harassment case against Professor Don Dutton.

Dutton, a full professor in UBC's (University of British Columbia) Department of Psychology, is an internationally-known expert on domestic violence.

The basic facts of the case are these. In the late fall of 1994, Mahmoodi approached Dutton about enrolling in a directed studies course. On December 30, she went to his apartment in the evening to discuss research. Subsequently, she sent him a letter threatening to destroy his career if he did not get her into graduate school. Dutton took the letter to UBC’'s Equity Office and complained that he was being blackmailed. They did nothing.

Mahmoodi filed a complaint that Dutton had tried to seduce her while she was in his apartment. Upon receiving Mahmoodi's complaint, the Equity Office immediately launched an extensive investigation of Dutton.

Mahmoodi produced a murky tape recording that included sounds of music being played and snippets of conversation between her and Dutton. Exactly how this recording was made was never determined, although the method of production would seem to be of central importance in assessing the motivation of Mahmoodi. Dutton claimed he never made the recording. Mahmoodi claimed the voice recording accidentally occurred while Dutton was recording music for her. Yet the ability of the tape recorder to actually perform this feat without a microphone was never proven. A definite possibility is that Mahmoodi produced the recording herself.

Ultimately, the B. C. Human Rights Tribunal decided that there was no evidence Dutton had physically seduced Mahmoodi, but found him guilty anyway of "creating a sexualized environment." He was fined $13,000. His legal expenses are already in six figures.

Numerous aspects of the BC Human Rights Tribunals procedures give grave cause for concern. The most serious problems are the following:

1) Vague, ill-defined procedures controlled by a single individual (the tribunal chair, a political appointee) who serves as judge and jury.

2) Incredibly slow processing of cases, resulting in unnecessary stress and financial hardship to all involved, especially the defendant. The claimant's legal bills are paid for by the Tribunal, while the defendant has to pay for legal expenses.

3) Selective filtering at information at several stages of the hearing process. The tribunal "chair" can rule evidence inadmissible, and the evidence then disappears permanently from the record. For example, the Tribunal took several years to process the case, and yet ruled some key testimony as "inadmissible."

Professor James Steiger testified that Mahmoodi approached him about a failing mark around the same time she visited Dutton’s apartment, and threatened (in the presence of a witness) to charge Steiger with racial discrimination if he failed to pass her. The court ruled this testimony "inadmissible," on the grounds that the probative value of the testimony was inadequate to compensate for its potential damage to the reputation of the complainant.

The probative value of the testimony was considered limited because of many alleged differences between the circumstances under which Mahmoodi approached Steiger and Dutton. The fact that she approached two professors, in the same department, in the same time frame, and allegedly threatened each in order to achieve an academic objective seemed lost on Frances Gordon, the Tribunal chair.

All record of this testimony has now disappeared. There is no mention of it in the extensive notice of decision (available at the HRT's website, [link no longer available] with one notable exception. A letter from Dutton to Steiger was entered into the record, because the tribunal chair felt that it reflected negatively on Dutton's credibility.

A careful reading of the decision reveals just how selective Frances Gordon was in processing and compiling information. For example, in a key section of the her report, Gordon intersperses actual elements from the tape recording with Mahmoodi's allegations, creating a seamless narrative strictly from Mahmoodi's point of view. It is very easy for a casual reader to lose sight of the fact that much of this material is uncorroborated conjecture, and almost all damaging "facts" in the narrative are unproven allegations by Mahmoodi.

On the other hand, Gordon presents only a small snippet of the blackmail letter Mahmoodi sent to Don Dutton, blunting the impact of the very negative piece of evidence.

4) Failure to control the tribunal proceedings. Numerous times during the proceedings, Mahmoodi disrupted testimony with a hysterical emotional outbursts. Each time, the hearings were delayed. Frances Gordon not only failed to control Mahmoodi’s outbursts, each of which caused substantial delays and which frightened and disturbed the witnesses, but she also continued to allow her to return to the proceedings and perform the same acts over and over again.

One must recall that the complainant in these cases has legal bills paid by the government, while the defendant is paying by the minute for legal advice. Under these conditions, failure to establish expeditious procedures and failure to control outbursts from the complainant are both prejudicial to the interests of the defendant, and can contribute to financial hardship.

During the tribunal proceedings, numerous facts were presented that reflected very negatively on the complainant's credibility. Besides the matter of the forged letters of recommendation and Mahmoodi's initial blackmail letter to Dutton, there were discussions of falsified immigration records, falsified educational transcripts, recordings of obscene phone calls Mahmoodi made to staff members working in Dutton's lab, and details of Mahmoodi's physical harassment of Dutton and other UBC staff members. Ultimately, Frances Gordon found Dutton to be less credible than Mahmoodi!

(In an interesting postscript to these matters, Mahmoodi was recently arrested at Vancouver International Airport and charged with a criminal offense.)

What emerged from the Mahmoodi-Dutton tribunal hearing was a disturbing truth. The British Columbia Human Rights Tribunal is a parallel court system out of control. Originally, the system was weighted heavily on the side of the complainant because it was designed to aid individuals whose rights were compromised by large organizations with overwhelming financial and legal resources to maintain violations of a complainant’s rights. The quixotic notion was that the system would provide balance for righting serious wrongs in the society.

What exists in fact is something else: a system which places immense power in the hands of a political bureaucracy, with an obvious agenda -- to use selected complainants to establish new legal precedents. Say the wrong thing, be charged with a Human Rights violation, and you may end up spending several years defending yourself under indeterminate conditions.

The court will decide what evidence to admit, how the tribunal will proceed, and answers to no one after deciding your fate. The power of such a system to repress freedom of speech is disturbing, and similarities to certain totalitarian societies are frightening.

John Furedy has described the Human Rights Tribunal system as "velvet totalitarianism." This is entirely accurate.
*) "Section 13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

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