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8/14/2019 MacLeans CHRC

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Interview

121 BONNIE HENRY

Cathy Gulli talks with the

virus hunter about H1Nl.

Columns

91 PAUL WELLS

Stephen Harper won't let

the opposition coalition die.

10 I ANDREW COYNE

Ottawa politics are bankrupt.

111 CAPITAL DIARY

Mitchel Raphael on feline,

as well as political, tweets.

National

141WHAT RECESSION?

The economy's minimal role

in the next election.

17ISHAPE UP

A human rights tribunal at-

tacks its own hate-crime law.

181 CAR VS. BIKE

Howa cyclist died on

Toronto's "Mink Mile."

221 LET'S GO RACING, BOYS

NASCAR and "Mr. Boogity";

library porn; stolen artwork.

World

241 HELPING DEMOCRACYA McGill prof teaches non-

violent protest to Iranians.

M A C L E A N S21From the Editors 31Mail Bag

S1Seven Days 61Newsmakers

S E P T E M B E R 2 1 - 2 8 , 2 0 0 968 IBooks

COVER STORY: Dan Brown's new thriller will

mysteriously sell millions.

721TV

Curb Your E n th u s ias m is Seinfe/d with a moral code.

73 1 Help

Margaret Drabble gets satisfaction through jigsaw puzzles.

74IFilm

George Clooney and Matt Damon fall to earth at TIFF.

76IBazaar

Men are getting into the girdle craze. Stop laughing.

771 Music

Rufus Wainwright on his new opera and kissing up to Toronto.

781Steyn

The wheels fall off the human rights tribunal racket.

81IFeschuk

Funny men are useless after the end of the world.

821The End

Murray Albert Nesbitt; 1951-2009

SUBSCRIBE TO MACLEAN'S ATWWW.MACLEANS.CA

World (continued)

271 MEDIA DIES IN RUSSIA

Journalistic fears; seedy

Barcelona; work kidnappings.

Business

281 GENERATION WAR

Boomers and young workers

vie for precious jobs.

30 I BROKE BRITANNIA

The U.K.'s economic mess.

Nature

321 THE YEAR OF THE RAT

Prepare for a winter invasion.

Society

34 IWWOOFITTravel and organic farming.

371 BEST GRAD SCHOOLS

The top professional schools.

381 LAW

School rankings; making the

cut; justice system in crisis.

441 MEDICINE

Choosing family practices;

prepping for the MMI.

521 M.B.A.

The surprisingly good job

market; volunteering matters.

60 I ENGINEERING

Getting women into the

techie game.

641 REALITY CHECK

What the provinces think of

the Big Five's reform ideas.



13(1).) Both the B.C. and Ontario rights com-

missions told Ma clean' s that the federal stat-

ute is not binding on provincial tribunals,

which will proceed as before.

The Canadian Jewish Congress called for

the ruling to be appealed: "This is one ruling

by one ad judicator," says its CEO, Bernie Far-

defaming. The tribunal can accept evidence ber, adding that Section 13(1) is an "import-

that wouldn't stand up in court. And it doesn't ant instrument" in "protect[ing] the vulner-

have to establish guilt beyond doubt," they able." Indeed, it is highly likely the case gets

wrote. "It's that bad." "Put Section 13 out of appealed-"all the way to the Supreme Court,"

its misery," the Montreal Gazette urged Par- adds Moon. (In 2008, he authored a report

liament, saying the case had exposed the for the CHRC which called for the repeal of

"folly" of an "odious" law. Section 13(l)-a year ago, the section was

The question, f or parliamentarians and . used, unsuccessf ully, to prosecute Ma clean's

the commission itself , becomes: what now? before the CHRC for material complainants

felt was anti-Islamic.)

To Geist, the question should fall to Parlia-

ment to address. Hadjis took a "courageous

stand," says Keith Martin, a Liberal MP who

has tabled a motion for the repeal of Section

13(1). That "members of the tribunal are

expressing deep and profound concern" shouldmotivate Parliament to review the act. Parlia-

ment, however, has been unwilling to touch

the political hot potato. Although Section

13(1) is wildly unpopular with the Tory base

(who, at a recen t policy convention, voted 99

per cent in favour of its repeal), the issue is a

no-win for Harper's minority government; it

risks offending the Jewish community as well

as some minority communities that the party

is assiduously courting.

Other members of the tribunal, meanwhile,

have expressed concern over the tactics of

commission staff . In the Lemire case-which

came at the heels of a five-year investigation-

this included hacking into the email account

of a private citizen, then using it to post racist

comments on the site so it could more easily

be denounced. In a March ruling, CHRT

chairman Edward Lustig called such meth-

ods "disturbing" and "disappointing."

Two years ago, the commission was widely

seen as "the good guys," according to lawyer

and conservative commentator Ezra Levant,

author of Shak edown: How Our Government

I s Underm ining De mocracy in t he Name of H um an Rights. It is now viewed with suspi-

cion "even among editorial board members

of the country's foremost left-wing news-

paper," he says. Indeed, it's a remarkable

turnabout, with PEN Canada, the Canadian

Civil Liberties Association, the Canadian

Association of Journalists and lawyer Alan

Borovoy, a chief architect of Canada's rights

commissions, all concerned with the com-

mission's impact on freedom of expression.

The question on many minds is, when will

the law catch up with popular sentiment? M

The CHRCtellsitself to shape upA tribunal rules itsown hate-speech law

is unconstitutional

BY NANCY MACDONALD· The growing

number of critics of the Canadian Human

Rights Commission received a shot in the arm

last week . In a ruling released Wednesday in

Ottawa, the commission's own tribunal niled

that Section 13(1), a controversial provision of

the Human Rights Act, was unconstitutional.

That is, the tribunal £lady challenged the legal-

ity of its own hate-speech law, concluding that

it violates the f reedom-of -expression guaran-

tee of the Canadian Charter of Rights andFreedoms. While the quasi- judicial body doesn't

actually have the authority to strik e a f ederal

law-that's up to a judge or Parliament-the

ruling has opened a constitutional can of worms /

further undermining a provision that, for two

years, has faced intense public scrutiny. The

surprise ruling has left even legal experts puz-

zling over what happens next. Meanwhile,

more and more scholars, academics and scribes

are lining up against Section 13(1), urging for

its immediate repeal.

The controversy arose last week when the

commission's tribunal dismissed a complaint

filed against Marc Lemire, the f ar-right web-

master behind F r eed om sit e.o r g, which bills

itself as the country's "freedom resource cen-

tre." The complaint, filed by Ottawa lawyer

Richard Warman, alleged that racist and

homophobic material posted to the site was

discriminatory, and "lik ely to expose" minor-

ity groups to "hatred and contempt." Although

the tribunal's vice-chairperson, Athanasios

Had jis, found that Lemire had, in one instance,

violated Section 13(1)-in a post viewed by a

total of eight people-he let him off, deemingthe provision unconstitutional. In a lengthy,

107-page decision, Hadjis noted that concilia-

tion and mediation, intended to be central to

the human rights process, had fallen to the

wayside. (Lemire had removed the of f ending

material af ter getting notification of the com-

plaint.) The CHRC, he said, has instead grown

increasingly aggressive and "penal in nature,"

acquiring the capacity to exact stiff f ines for

opinions that, as its critics say, can fall well

short of incitement to hatred.

Media reaction was swift. It's unsalvage-

able, the Toronto St ar said of Section 13(1) in

an editorial published the next day. "It can

be interpreted to cover stereotyping and

The ruling "cannot be ignored," says Univer-

sity of Windsor law prof essor Richard Moon.

Sure, the commission can "continue to inves-

tigate under Section 13(1) and send com-

plaints onward," he adds-but "if this is the

automatic response, then it's all wasted effort,"

and Section 13(1) becomes, in effect, a dead-

letter law. Even if tribunal members do not

adhere to Had jis's ruling, it is the "elephant

in the room," impossible to overlook, says

University of Ottawa law professor Michael

Geist. (The CHRC says it is "reviewing the

decision," and continues to ref use comment

on the ruling, and on whether it will continue

to investigate and prosecute under Section

For more on the controver sy , see

Mark St eyn' s column on page 7 8.



It took a 1Nhilebut Section 13is deadThis month, with Judge Hadjis's Marc Lemiredecision, the wheels fell off the CHRCracket

"Nice to see you all," said

Athanasios Hadjis, the Can-

adian "Human Rights" Tri-

bunal's vice-chair (i.e.,judge),

as he surveyed his court-

room in Ottawa last year.

"More of an interest than

there was before."

Indeed. The pack ed benches that greeted

him were a rare sight at a CHRT trial, and

especially at the Marc Lemire trial, where the

prosecutors-the Canadian "Human Rights"

Commission-had demanded that everyoneother than them be banned from the court-

room, including the def endant, who would

be graciously permitted to watch proceed-

ings by video. That doesn't sound quite like

the right to confront your accuser in open

court. But hey, given all the other safeguards

of Canada's judicial inheritance the Domin-

ion's "human rights" regime trashes, what's

one more faggot on the bonfire of liberties?

Judge Hadjis was, by that stage, in the fifth

year of the Canadian state's investigation of

Marc Lemire, webmaster of fr eedomsite.org

and accused Section 13 hate-monger, andappeared from my seat in court anxious to

throw the book at him. "We're done;' he said

at several points during the day, swatting

aside some intervention or other. Jurispru-

dentially, Judge Hadjis was outta there and

eager to add Mr. Lemire's scalp to the CHRT's

trophy room. In that long ago spring of 2008,

the rules were very simple: under the Can-

adian "Human Rights" Tribunal, to be accused

of a Section 13 thought crime was to be con-

victed. In the entire history of Section 13,

every def endant brought before the CHRT

had been found guilty. It would be unfair tocompare this to the justice systems of Sad-

MARK

STEYN

What a difference two years makes. As the

Lemire decision demonstrates, today Section

13 has no friends other than its small band of direct benef iciaries such as serial plaintif f( and

former CHRC employee) Richard Warman,

Canada's self-appointed Hatef inder-General.

"Section 13isn't salvageable;' declared ... well,

go on, guess. Steyn? Ezra Levant? Some right-

wing nut in the National Post ? No, it was Can-

ada's biggest-selling newspaper and h ouse

organ of every moth-eaten Trudeaupian piety,

the Toronto Star. This is a long campaign to

restore ancient liberties that Canada gave up

very carelessly. But, when statist social engin-

eers have lost the Toronto Star, you know the

wind's blowing your way.What explains Judge Hadjis's belated con-

version to the constitutional virtues of free

speech? Less than two years ago, he thought

dam Hussein or Pol Pot, since even those

eminent jurists felt obliged to let someone

off once in a while just for appearances' sake.

Only in Canada was a 100 per cent convic-

tion rate merely reassuring proof of the

Dominion's humane progressive commit-

ment to "human rights."

This month the wheels f ell off the racket.

On Sept. 2, Athanasios Hadjis in effect acquit-

ted Marc Lemire of all charges but one. This

unprecedented verdict is, as Joseph Brean

reported in the National Post, "the f irst major

f ailure of Section 13(i)" in its I:listory. Was Mr.Lemire the beneficiary of a unique dispensa-

tion from the CHRT? No. Judge Hadjis pro-

nounced the accused guilty of a Section 13

infringement on one narrow

charge-an Internet post

headlined "AIDS Secrets"

that (in David Warren's

words) "went on rather ten-

dentiously about blacks and

homosexuals" and was written by someone nothing of imposing a fine and a lif etime

otherthanMr. Lemire. Nevertheless, the court speech ban on Jessica Beaumont, plus a $3,000

declined to punish the defendant even for this award to Richard Warman as his finder's fee,

infraction on the following grounds: for "hate speech" in the same general terri-"I have also concluded that s. 13(1) in con- tory as Mr. Lemire's was alleged to be. Why

junction with ss. 54(1) and (1.1) are inconsis- is Ms. Beaumont on a CHRT leash for life

tent with s. 2(b) of the Charter, which g uar- and Mr. Lemire free to hate again?

antees the freedom of thought, belief, opinion Er, well, um ... As I often observed last year,

and expression. The restriction imposed by under the poorly draf ted and ideologically w

these provisions is not a reasonable limit' interpreted British Columbia "Human Rights" ~: : J

within the meaning of s. 1 of the Charter." Code, Ma clean's and I were undoubtedly 2

When this magazine's difficulties with Sec- guilty. In fact, after the verdict Kenneth Whyte, ~

tion 13 began in late 2007, received opinion this magazine's head honcho, and I had a 2> -

took refuge in the weasel formulation that "of faintly surreal conversation discussing whether ~

course we all believe in freedom of speech but or not to appeal the acquittal: that's how nutty ~

it's a question of striking a balance, drawing a Canadian justice is in the 21st century. ~

line;' and other claptrap intended to appeal Before I attracted the attention of the ~to Canadians' sense of their own moderation. thought police, I wasn't entirely up to speed 6 :

Why is Ms. Beaumont ona CHRT leash for life andMr. Lemire f ree to hate again?



on state censorship in Canada, and I asked

my friend Ezra Levant what he knew about

this Section 13 business. He sent me a print-

out with the history of every single case. Two

things stood out: first, while the plaintiffs

had the costs of the case paid for by the tax-

payer, almost all of the defendants had been

too poor to have legal representation. That's

an inversion of basic justice. Second, one man

had been the plain tiff on every single Section

13 case since 2002-Richard Warman. That

didn't pass the smell test.

The list had been compiled by someone

called Marc Lemire, a man who'd been caught

in the "human rights" crosshairs for half a dec-

ade. You might not care for his opinions, but

that, as they say, isa matter of opinion. That he

has been traduced by the Canadian justice sys-

tem is a matter off act. But he's a dogged type,and he pushed back, and he got the goods on

his abusers. He demonstrated that evidence

exhibits were switched in mid-trial by the CHRC.

He proved that Warman and CHRC investi-

gator Dean Steacywere themselves members

of and posters on white supremacist websites

under various aliases. Indeed, in a remarkable

conflict of interest, Warman, as the plaintiff,

was permitted to stroll into the CHRC, the

investigating body, and share passwords and

Internet aliases with Steacy.

But Mr. Lemire was too obscure a figure

to get any publicity for the CHRC's proced-ural abuses and k inky penchant for playing

dress-up Nazis on the Internet at taxpayer

expense all too long. One day,.as I was rum-

maging agog through what he'd uncovered, I

came across a ruling by Judge Hadjis agreeing

to the CHRC's motion to close Mr. Lemire's

hearing to the public. I stopped, rubbed my

eyes, and reread it slowly: secret trials? In

Canada? Over some unread Internet posts?

Apparently so. Minor servants of the Crown

in dull desk -bound jobs had decided that they

were really cyber-007s whose top secret work

was vital to national security. I emailed Ken

Whyte and said I'd been overcome by a sud-

den yen to attend Judge Had jis's court. Our

counsel, Julian Porter, Q.C., filed a motion

to open up the secret trial. He did what law-

yers are supposed to do-he cited precedent

(eBe vs. New Brunsw ick , Ambard vs. Att orney -

General ofTrinidad and Tobago) and eminent

jurists from Viscount Haldane to Chief Jus-

tice Dickson. In response, the CHRC offered

feverish fantasies insisting that their work

was too dangerous to be exposed to open

court. Judge Had jis caved, and rescinded his

secret-trial order.

So now he's caved again, and the jurist who

thought nothing of lifetime publication bans

is a born-again champion of constitutional

freedom. Whatever.

As for those who persist in seeing "hate" as

a threat to the Queen's peace, at Jay Currie's

website a commenter "pettifogger" pointedout that the sole post that Judge Hadjis deemed

in breach of Section 13~"AIDS Secrets" -was

read by a total of just eight people in Canada,

or nought-point-eight of a Canadian per prov-

ince. However, you've got to reckon that

maybe two to three of those eight views were

from Richard Warman salivating over another

tax-free windfall if he sued for being" offended"

by it; another two to three came from the

CHRC bookmarking and downloading it to

enter in evidence; and maybe the sole remain-

ing view came f rom Mr. Lemire just after

posting to check that it was formatted anddisplaying correctly.

In other words, no one in Canada saw this

post. Yet Her Ma jesty's thought police took

six years to bring this case to conclusion. And,

whether or not it's offensive, there's nothing

in there that should be illegal in a free soci-

ety with robust traditions of vigorous public

debate. That's the point: Marc Lemire is no

threat to Canada. Whereas Jennifer Lynch,

Chief Commissar of the CHRC, and her mob

of statist hacks, social engineers and secret-

agent fantasists are ultimately a very profound

threat indeed. To survive as a free people, Can-

adians need the rough and tumble of honest

TOO MUCH HAPPINESS 1(2)

by Alice Munro

2 THE GIRL WHO PLAYED 2 (7)

WITH FIRE by Stieg Larsson

3 THE WHITE QUEEN 6 (3)

by Philippa Gregory

4 GENERATION A (1)

by Douglas Coupland

S GALORE by Michael Crummey 4 (2)

6 THE BISHOP'S MAN 7 (3)

by Linden Macintyre

7 HOMER & LANGLEY (1)

by E.L. Doctorow

8 LOVE AND SUMMER (1)

by William Trevor

9 THE CHILDREN'S BOOK 3(21)

by A.S. Byatt

10 SOU TH O F BR OA D 5(4)

by Pat Conroy

.. ... . . . ....... . .. ... . .. ...... .... .. .. ......... ...

Non-fiction

EMPIRE OF ILLUSION 1(7)

by Chris Hedges

2 OUTLIERS by Malcolm Gladwell 2(41)

3 WH Y YOU R W OR LD IS 4 (16)

ABOUT TO GET A WHOLE

LOT SMALLER by Jeff Rubin

4 THE CELLO SUITES 3(25)

by Eric Siblin

5 THE EVOLUTION OF GOD 7(8)

by Robert Wright

6 BORN ROUND by Frank Bruni (1)

7 THE BOLTER 8(10)

by Frances Osborne

8. SLOW DEATH BY 5(16)

RUBBER DUCKby Rick Smith and Bruce Lourie

9 GOD IS 6(3)

by David Adams Richards

10 ETERNAL LIFE by John Spong (1)

ON THE WEB: For book reviews,

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recommended reading by celebrities,

check out our new "Books Page" at

macleans.cajbooks

public discourse. Instead, its "human rights"

regime has, quite consciously, attempted to

upgrade unfashionable opinions into illegal

ones. When government bureaucrats forget

they are not our rulers but our servants, that's

always a bigger problem than whatever "crisis"

they purport to be addressing.

For the moment, whatever Parliament or

the Supreme Court does, Section 13 is dead.

The camel's nose of liberty is under the CHRC

tent. Now let's give 'em the hump. M

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