By John Jalsevac

OTTAWA, March 26, 2008 ( – An important victory was won by critics of the Canadian Human Rights Commission (CHRC) after it was decided on March 20 that a controversial hearing (held yesterday) into suspect activities on the part of CHRC employees would be open to the press and the public. The hearing, part of an ongoing human rights case against Marc Lemire, investigated allegations that a number of CHRC employees have routinely used the dubious tactic of anonymously posting on racist and “far-right” websites.

The CHRC had originally obtained permission to hold the hearing in camera (in private), citing concerns for the safety of the employees in question, and for national security.

A number of online posts about CHRC employees that the Commission said were “threatening in tone,” were presented as the justification for the invocation of section 37 of the Canada Evidence Act, which allows a Minister of the Crown to decide that information may be withheld from the public. Section 37 is typically invoked for matters of national security.

However, leading critics of the Commission, including popular columnist Mark Steyn, and Canadian publisher Ezra Levant, mounted a campaign to have the hearing opened to the press and the public, arguing that the CHRC was doing nothing more than obstructing justice and seeking to protect itself and its employees by invoking faux security concerns. They also pointed out that the CHRC has a history of holding “secret” hearings that completely contradicts the Western tradition of judicial openness.

“Free societies do not hold secret trials except for the most serious reasons of national security: mid-level servants of the Crown who get their jollies by posing as racists on unread websites do not fall into that category,” wrote Steyn on his website several weeks ago.

Macleans magazine, which has itself been the target of a human rights complaint by Muslim activists, for having printed an excerpt from Mark Steyn’s latest book, also filed a formal legal challenge to the holding of the hearing in camera. Macleans’ factum outlined numerous Supreme Court cases that have upheld the importance of the “openness principle” – the idea that in a modern democracy the judicial process should be accessible to the public, except for the most serious of reasons.

“The public can only tell how justice is being protected,” wrote Macleans to the presiding tribunal official, Athanasio Hadjis, “if it can see and read of your reactions, the nature of the court, the attentiveness of the participants. After all, the keyhole to justice requires eyes.” 

In the end Hadjis overturned his original decision, agreeing with Steyn and Levant that concerns about security were overinflated.

Hajdis wrote in the March 20 decision, “I am not persuaded that the witnesses are exposed to a real and substantial risk that undue hardship will be caused to the persons involved…nor that there is a serious possibility that the life, liberty or security of a person will be endangered.”

Yesterday’s hearing was attended by a contingent of reporters, including Macleans journalist Kady O’Malley, who blogged about the event throughout the day in real time. Mark Steyn was also present.

CHRC employee Dean Steacy testified yesterday that, indeed, he and a number of colleagues shared an online alias known as “Jadewarr”, under which pseudonym they routinely posted on so-called “far-right” and white supremacist websites. This admission seriously bolstered the case of Marc Lemire and those seeking reform of the CHRC, who have pointed out that the tactic of posing as racists on racist websites effectively means that CHRC employees have contributed to the very “crimes” that they have later prosecuted.

CHRC critics have compiled a laundry list of grievances against the Commission, including numerous allegations of unprofessional conduct, and incompetent and biased judicial processes that would never hold up in Canada’s courts of law. Only last month a Canadian federal court overturned a CHRC decision and blasted the Commission for incompetence. Justice Michael Kelen said the tribunal had “unreasonably ignored the factual reality” in deciding that there had been wage discrimination based on gender at Canada Post.

Judge Kelen also condemned the extreme length of the Commission’s proceedings, saying, “This case offends the public conscience of what is reasonable and responsible”.

Marc Lemire, a white supremacist who has nevertheless garnered widespread support for his quest to protect his right to freedom of speech against the CHRC, was brought before the Commission by former CHRC employee Richard Warman. Lemire was accused of running a white supremacist website on which participants posted racist comments. Steacy’s admission yesterday, however, that some of the members of the website who posted offensive comments were in fact incognito government employees added significant weight to Lemire’s argument that he cannot be held accountable for what others post on his site.

Lemire and his supporters were further incensed that the complainant in the increasingly convoluted case, Richard Warman, was himself not present at yesterday’s hearing, making it the twentieth straight hearing in a row that he has not attended.

Warman, a former CHRC employee, has a lengthy history of filing human rights complaints under subsection 13(1) of the human rights act. Over the years Warman has been awarded tens of thousands of dollars for having been “offended” by those he has hauled before the Commission. Subsection 13(1) makes it a “discriminatory practice” for individuals or groups to communicate messages that are “likely to expose a person or persons to hatred or contempt”. Critics of this section of the Act have long said that the clause creates the precise equivalent of a “thought crime”. Furthermore, currently the CHRC has a 100 percent conviction rate for those who have been accused under section 13(1).

Mark Steyn wrote today on his website about yesterday’s hearing, saying that the tribunal official Athanasio Hadjis seemed bent on continuing that 100 percent conviction rate in the current case. “Athanios Hajdis was brisk but impatient,” he wrote. “He knows how he’s going to rule, and he appears eager to add Marc Lemire to the mound of Section 13 losers. ‘We’re done,’ he said at several points during the day. I don’t get the impression he’s planning on letting Mr Lemire buck the 100 per cent Section 13 conviction rate.”

Steyn concluded his analysis of the hearing, saying, “It’s important to keep the pressure on the CHRC – to make them understand that they can no longer take their routine expectations of ‘secret trials’ for granted, and that any such order will be met with legal motions emphasizing that, notwithstanding their assumptions, they can still be compelled to submit to the norms of the Canadian justice system. This battle to restore ancient liberties (like the presumption of innocence) will be won in the open air not in the fetid ‘hearing rooms’ of the Canadian Human Rights Tribunal.” 

  See related coverage:

Prominent Canadian Publisher Denounces Human Rights Commissions at HRC Hearing

Liberal MP Launches Motion to Stop Human Rights Commission Squelching of Free Speech

Canada Catholic League Calls for Halt to Use of Human Rights’ Commissions in Free Speech Cases

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Canada’s Human Rights Commission Used to Target Conservative Website With “Hate Speech”

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Growing Support for Alberta Pastor Facing Human Rights Hearing Over Letters Against Homosexuality

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