Macleans Chrc

MACLEAN S

Interview 121 BONNIE HENRY Cathy Gulli talks with the virus hunter about H1Nl.

21From the Editors 31Mail Bag S 1Seven Days 61Newsmakers

Columns 91 PAUL WELLS Stephen Harper won't let the opposition coalition die.

SEPTEMBER21-28, 2009 68 I Books COVER STORY: Dan Brown's new thriller mysteriously sell millions.

Mitchel Raphael on feline, as well as political, tweets.

National 141 WHAT RECESSION? The economy's minimal role in the next election.

tacks its own hate-crime

"Mink Mile."

221 LET'S GO RACING, BOYS NASCAR and "Mr. Boogity"; library porn; stolen artwork.

World 241 HELPING DEMOCRACY A McGill prof teaches nonviolent protest to Iranians.

281 GENERATION WAR Boomers and young workers vie for precious jobs. 30 I BROKE BRITANNIA The U.K.'s economic mess.

Nature

Society 34 I WWOOFIT Travel and organic farming.

73 1 Help Margaret Drabble gets satisfaction

through

jigsaw puzzles.

74 I Film

Men are getting

law.

181 CAR VS. BIKE Howa cyclist died on Toronto's

will

76 IBazaar into the girdle craze. Stop laughing.

77 1 Music Rufus Wainwright

on his new opera and kissing up to Toronto.

781Steyn The wheels fall off the human rights tribunal

racket.

81I Feschuk Funny men are useless after the end of the world.

821The End Murray Albert

371 BEST GRAD SCHOOLS The top professional schools. 381 LAW

George Clooney and Matt Damon fall to earth at TIFF. at-

Business

721TV Curb Your Enthusiasm is Seinfe/d with a moral code.

17 ISHAPE UP A human rights tribunal

271 MEDIA DIES IN RUSSIA Journalistic fears; seedy Barcelona; work kidnappings.

321 THE YEAR OF THE RAT Prepare for a winter invasion.

10 I ANDREW COYNE Ottawa politics are bankrupt. 111 CAPITAL DIARY

World (continued)

Nesbitt; 1951-2009

SUBSCRIBE TO MACLEAN'S AT WWW.MACLEANS.CA

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.

The CHRCtells itself to shape up A tribunal rules its own 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 legality ofits own hate-speech law, concluding that it violates the freedom-of-expression guarantee of the Canadian Charter of Rights and Freedoms. While the quasi-judicial body doesn't actually have the authority to strike a federal 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 puzzling 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 far-right webmaster behind Freedomsite.org, which bills itself as the country's "freedom resource centre." The complaint, filed by Ottawa lawyer Richard Warman, alleged that racist and homophobic material posted to the site was discriminatory, and "likely to expose" minority groups to "hatred and contempt." Although the tribunal's vice-chairperson, Athanasios Hadjis, 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, deeming the provision unconstitutional. In a lengthy, 107-page decision, Hadjis noted that conciliation and mediation, intended to be central to the human rights process, had fallen to the wayside. (Lemire had removed the offending material after getting notification of the complaint.) The CHRC, he said, has instead grown increasingly aggressive and "penal in nature," acquiring the capacity to exact stiff fines 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 Star said of Section 13(1) in S an editorial published the next day. "It can 8 be interpreted to cover stereotyping and Q.

defaming. The tribunal can accept evidence that wouldn't stand up in court. And it doesn't have to establish guilt beyond doubt," they wrote. "It's that bad." "Put Section 13 out of its misery," the Montreal Gazette urged Parliament, saying the case had exposed the "folly" of an "odious" law. The question, for parliamentarians and the commission itself, becomes: what now?

The ruling "cannot be ignored," says University of Windsor law professor Richard Moon. Sure, the commission can "continue to investigate under Section 13(1) and send complaints onward," he adds-but "if this is the automatic response, then it's all wasted effort," and Section 13(1) becomes, in effect, a deadletter law. Even if tribunal members do not adhere to Hadjis'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 refuse comment on the ruling, and on whether it will continue to investigate and prosecute under Section

13(1).) Both the B.C. and Ontario rights commissions told Maclean's that the federal statute 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 adjudicator," says its CEO, Bernie Farber, adding that Section 13(1) is an "important instrument" in "protect[ing] the vulnerable." Indeed, it is highly likely the case gets appealed-"all the way to the Supreme Court," adds Moon. (In 2008, he authored a report for the CHRC which called for the repeal of Section 13(l)-a year ago, the section was . used, unsuccessfully, to prosecute Maclean's before the CHRC for material complainants felt was anti-Islamic.) To Geist, the question should fall to Parliament 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" should motivate Parliament to review the act. Parliament, 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 investigationthis 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 methods "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 Shakedown: How Our Government

Is Undermining Democracy in the Name of Human Rights. It is now viewed with suspicion "even among editorial board members of the country's foremost left-wing newspaper," 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 commission's impact on freedom of expression. The question on many minds is, when will the law catch up with popular sentiment? M

N

h: ~ III

~

w ... For more on the controversy, see Mark Steyn's column on page 78.

~

:E

17

It took a 1Nhilebut Section 13 is dead This month, with Judge Hadjis's Marc Lemire decision, the wheels fell off the CHRCracket "Nice to see you all," said Athanasios Hadjis, the Canadian "Human Rights" Tribunal's vice-chair (i.e.,judge), as he surveyed his courtroom in Ottawa last year. MARK "More of an interest than STEYN there was before." Indeed. The packed 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 everyone other than them be banned from the courtroom, including the defendant, who would be graciously permitted to watch proceedings 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 Dominion'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 freedomsite.org and accused Section 13 hate-monger, and appeared 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. Jurisprudentially, 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 Canadian "Human Rights" Tribunal, to be accused of a Section 13 thought crime was to be convicted. In the entire history of Section 13, every defendant brought before the CHRT had been found guilty. It would be unfair to compare this to the justice systems of Sad-

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 conviction rate merely reassuring proof of the Dominion's humane progressive commitment to "human rights." This month the wheels fell off the racket. On Sept. 2, Athanasios Hadjis in effect acquitted Marc Lemire of all charges but one. This unprecedented verdict is, as Joseph Brean reported in the National Post, "the first major failure of Section 13(i)" in its I:listory. Was Mr. Lemire the beneficiary of a unique dispensation from the CHRT? No. Judge Hadjis pronounced 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 tendentiously about blacks and homosexuals" and was written by someone otherthanMr. Lemire. Nevertheless, the court declined to punish the defendant even for this infraction on the following grounds: "I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit' within the meaning of s. 1 of the Charter." When this magazine's difficulties with Section 13 began in late 2007, received opinion took refuge in the weasel formulation that "of course we all believe in freedom of speech but it's a question of striking a balance, drawing a line;' and other claptrap intended to appeal to Canadians' sense of their own moderation.

What a difference two years makes. As the Lemire decision demonstrates, today Section 13 has no friends other than its small band of direct beneficiaries such as serial plaintiff( and former CHRC employee) Richard Warman, Canada's self-appointed Hatefinder-General. "Section 13 isn't salvageable;' declared ... well, go on, guess. Steyn? Ezra Levant? Some rightwing nut in the National Post? No, it was Canada's biggest-selling newspaper and house 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 engineers have lost the Toronto Star, you know the wind's blowing your way. What explains Judge Hadjis's belated conversion to the constitutional virtues of free speech? Less than two years ago, he thought

Why is Ms. Beaumont on a CHRT leash for life and Mr. Lemire free to hate again? nothing of imposing a fine and a lifetime speech ban on Jessica Beaumont, plus a $3,000 award to Richard Warman as his finder's fee, for "hate speech" in the same general territory as Mr. Lemire's was alleged to be. Why is Ms. Beaumont on a CHRT leash for life and Mr. Lemire free to hate again? Er, well, um ... As I often observed last year, under the poorly drafted and ideologically interpreted British Columbia "Human Rights" Code, Maclean's and I were undoubtedly guilty. In fact, after the verdict Kenneth Whyte, this magazine's head honcho, and I had a faintly surreal conversation discussing whether or not to appeal the acquittal: that's how nutty Canadian justice is in the 21st century. Before I attracted the attention of the thought police, I wasn't entirely up to speed

w

~ ::J

2 ~

2>~ ~ ~ ~

6:

on state censorship in Canada, and I asked my friend Ezra Levant what he knew about this Section 13 business. He sent me a printout 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 taxpayer, 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 decade. You might not care for his opinions, but that, as they say, is a matter of opinion. That he has been traduced by the Canadian justice system 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 investigator 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 procedural abuses and kinky penchant for playing dress-up Nazis on the Internet at taxpayer expense all too long. One day,.as I was rummaging 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-

TOO MUCH HAPPINESS by Alice Munro

1 (2)

2

THE GIRL WHO PLAYED WITH FIRE by Stieg Larsson

2 (7)

3

THE WHITE QUEEN by Philippa Gregory

6 (3)

4

GENERATION A by Douglas Coupland

(1)

S

GALORE

6

THE BISHOP'S MAN by Linden Macintyre

den yen to attend Judge Hadjis's court. Our counsel, Julian Porter, Q.C., filed a motion to open up the secret trial. He did what lawyers are supposed to do-he cited precedent

7

HOMER & LANGLEY by E.L. Doctorow

(1)

8

LOVE AND SUMMER by William Trevor

(1)

(eBe vs. New Brunswick, Ambard vs.AttorneyGeneral ofTrinidad and Tobago) and eminent

9

THE CHILDREN'S by A.S. Byatt

10

SOUTH

by Michael Crummey

BOOK

OF BROAD

4 (2) 7 (3)

3 (21)

5 (4)

jurists from Viscount Haldane to Chief Jusby Pat Conroy tice Dickson. In response, the CHRC offered ...... .. ........ ...... .... . ..... . . . . ... . . . . .. . . . . . feverish fantasies insisting that their work Non-fiction was too dangerous to be exposed to open 1 (7) EMPIRE OF ILLUSION court. Judge Hadjis caved, and rescinded his by Chris Hedges secret-trial order. 2 (41) 2 OUTLIERS by Malcolm Gladwell So now he's caved again, and the jurist who 4 (16) 3 WHY YOUR WORLD IS thought nothing oflifetime publication bans ABOUT TO GET A WHOLE is a born-again champion of constitutional LOT SMALLER by Jeff Rubin freedom. Whatever. 3 (25) 4 THE CELLO SUITES by Eric Siblin As for those who persist in seeing "hate" as a threat to the Queen's peace, at Jay Currie's 7 (8) 5 THE EVOLUTION OF GOD by Robert Wright website a commenter "pettifogger" pointed (1) 6 BORN ROUND by Frank Bruni out that the sole post that Judge Hadjis deemed in breach of Section 13~"AIDS Secrets" -was 8 (10) 7 THE BOLTER by Frances Osborne read by a total of just eight people in Canada, 8. SLOW DEATH BY 5 (16) or nought-point-eight of a Canadian per provRUBBER DUCK ince. However, you've got to reckon that by Rick Smith and Bruce Lourie maybe two to three of those eight views were 9 GOD IS 6 (3) from Richard Warman salivating over another by David Adams Richards tax-free windfall ifhe sued for being" offended" (1) 10 ETERNAL LIFE by John Spong by it; another two to three came from the CHRC bookmarking and downloading it to enter in evidence; and maybe the sole remainON THE WEB: For book reviews, ing view came from Mr. Lemire just after feature articles, interviews and posting to check that it was formatted and recommended reading by celebrities, displaying correctly. check out our new "Books Page" at In other words, no one in Canada saw this macleans.cajbooks post. Yet Her Majesty's thought police took six years to bring this case to conclusion. And, public discourse. Instead, its "human rights" regime has, quite consciously, attempted to whether or not it's offensive, there's nothing in there that should be illegal in a free soci- upgrade unfashionable opinions into illegal ones. When government bureaucrats forget ety with robust traditions of vigorous public debate. That's the point: Marc Lemire is no they are not our rulers but our servants, that's threat to Canada. Whereas Jennifer Lynch, always a bigger problem than whatever "crisis" Chief Commissar of the CHRC, and her mob they purport to be addressing. For the moment, whatever Parliament or of statist hacks, social engineers and secretagent fantasists are ultimately a very profound the Supreme Court does, Section 13 is dead. threat indeed. To survive as a free people, Can- The camel's nose ofliberty is under the CHRC tent. Now let's give 'em the hump. M adians need the rough and tumble of honest