A day in the life of Canada's kangaroo courtBy Ezra Levant on March 26, 2008 5:33 PM | Permalink | Comments (48) | Trackback
I've read the blogosphere's several accounts of Tuesday's Canadian Human Rights Tribunal hearing in Ottawa in the Warman v. Lemire case, and it's on that basis that I've formed my first impressions. You can read some of those reports here, here, here, here, here, here, here and from the defendant himself here. I've also seen two newspaper stories, this one from the National Post's Joseph Brean, and this one by the Ottawa Citizen's Don Butler.
I'd prefer to review the actual transcripts of the hearing, but from what I've read, there will be no transcripts made, only an audio recording.
No transcripts
Let's start there in our analysis: This matter has been proceeding for four years; to investigate and prosecute this case, the CHRC has not only deployed the full weight of their own government staff, but they've retained a series of expensive private sector lawyers as well, such as the comical Giacomo "Serenity Now!" Vigna. I'd conservatively estimate that $2-million in taxpayers' money has been spent to date, but this being a government enterprise, the true number might be closer to $5 million. A half-dozen interveners, including the federal government, have sent lawyers, too, even if they merely sit in the hearing all day, not saying a word. And, of course, the Tribunal itself has been seized with this matter for well over a year, with about 20 days of hearings to date, in at least two cities.
Why was Tuesday's hearing the one day that won't be transcribed and published? Why was a trifling savings of a court stenographer -- who costs, what, a third of what a lawyer bills? -- chosen as the one area of economy to find? Is the Tribunal, with the unlimited resources of the government, out of cash?
The Tribunal's decision to nix transcripts is transparently biased: the one day that the hunters became the hunted -- where the CHRC itself was being grilled -- was the one day that accurate, typed, searchable transcripts were omitted. Try to "search" an eight-hour audio recording for a key word, as opposed to searching a written transcript. Try to hear words that are spoken quietly; try to learn the spelling of unusual names of words; try to skip to important matters and avoid others. It's yet another irregularity in a system where arbitrariness and capriciousness have replaced the rule of law.
That's offensive to anyone, like me, who cares about the openness of our legal system. But it's more than just offensive -- it's unfair to any defendant who will now not be able to rely on such transcripts for his appeal when he's convicted.
One day only
So the one day in which there will be no transcripts is the one day the CHRC is on the defensive. But why was Tuesday's hearing limited to just one day?
Again, this matter has been grinding on for four years, more than a year of which was in the Tribunal. Richard Warman, the nominal complainant, was given four days for his examination in chief -- that is, four days to make self-serving comments, with Vigna leading him along. Why the sudden impatience? Is it because, with the CHRC's own conduct on trial, it's just not as much fun as shooting white supremacist fish in a barrel?
According to several blog reports, the Tribunal chair, Athanasios Hadjis, was visibly impatient, repeatedly saying "this case is closed". In real courts, it's up to the two sides to announce "we rest our case," not for a bored judge to merely declare it. But don't bother Hadjis with such trifles. He's not a judge, so why should he pretend to act like one?
The CHRC knew that they only had to brazen it out for one day, and then they'd be free. They didn't pull a Vigna this time -- no-one announced that they weren't serene, and couldn't go on. But they did what lawyers do when they need to run out the clock: they made incessant objections of any sort, with merit or without, simply to interrupt the other side and talk out the clock. Scroll down this web page to hear an audio recording of the CHRC's lawyer objecting to Doug Christie's cross examination, before Christie even asked the question. I'd sound angry, too, if I had flown from Victoria to Ottawa, to be left with merely 45 minutes to ask my questions, and to have half that time eaten up with clearly dilatory objections. But with a weak and impatient chairman like Hadjis, and a corrupt system without clear rules of procedure, why the hell not? No need to pull the fire alarm. Just interrupt until the day is done.
Dean Steacy and Hannya Rizk weren't the only CHRC staffers who were supposed to be cross-examined yesterday; Harvey Goldberg was, too. He's the master strategist behind the CHRC's "anti-hate" team. He didn't have to say a word; because Hadjis had arbitrarily ruled that the hearing would be a single day, Goldberg can hide behind the improper objections that his lawyers made last June. You'll recall that's why yesterday's hearing was called in the first place: the CHRC had claimed that its rogue investigative techniques were a state secret, and couldn't be examined. Lemire appealled that arrogant objection to the Federal Court; thus yesterday's hearing to re-ask those same questions. Goldberg never took the stand -- so the illegal objections made last year by his lawyers were allowed to stand, despite their illegality.
No disclosure
It gets worse. After Goldberg's examination last year, he disclosed a further 300 pages of documents. That might mean nothing to non-lawyers, but it's very important, and it goes to the unlawful, unprofessional, abusive manner in which the CHRC conducts itself. Goldberg was subpoenaed, as were his documents. Subpoenas are not invitations; they carry the weight of the law with them. They can be appealled, of course, if the recipient of a subpoena thinks they're improper. At least that's what a law-abiding agency would do. But not the CHRC. They waited until after Goldberg's examination to disclose the 300 pages. And, wouldn't you know it, Goldberg was exempted from answering questions about those pages, too. Bogus objections and defiance of disclosure obligations: if that happened in a real court, the judge would blow his stack, order the offending party to comply, assess costs against the offending party, and censure the lawyers, too. But of course, this isn't a real court.
No integrity of evidence or other aspects of investigations
Still, a number of questions were put to Steacy. You'll remember him -- he was the CHRC investigator who told the Tribunal that "freedom of speech is an American concept so I don't give it any value". He's also the one who refused to accept a human rights complaint from someone he didn't like, based on gossip about that complainant's siblings. It didn't surprise me at all to learn that Steacy is a former public sector union boss.
Steacy did make a few embarrassing admissions. But the bulk of his answers -- just like the bulk of Warman's answers on cross examination last year -- were "I don't remember" or variants thereof. Some of the things he didn't remember were investigative actions he did mere weeks ago; some of them related to standing policies of the CHRC. No matter; he just brazened it out with forgetfulness.
Stop to think about how important the integrity of investigations is in real courts -- how the chain of custody of evidence is maintained under lock and key; how every test and inspection is documented; the extreme lengths police go to, to avoid giving the accused grounds for objecting to any evidence, including oral evidence like confessions. None of that integrity is present in the CHRC; Steacy, Warman and the others don't even bother keeping notes -- or, if they do, they simply "forgot" to disclose them, like Goldberg forgot to disclose 300 pages until after his court appearance.
It is not reasonable to expect investigators to remember every detail of every conversation -- or, in this case, of every occasion they pretended to be neo-Nazis, and went cruising the Internet. That's why real investigators take copious notes, and that's why courts permit police to refresh their memory with notes taken contemporaneously with the events in question -- and that's why those notes are disclosed to the accused, too. Either the CHRC is lying, and not disclosing their notes, or their investigative integrity is abominable, because it really doesn't matter how shabby a job they do -- they have a 100% conviction rate, and that isn't about to change any time soon.
Which brings us to the matter of Steacy himself. He's blind, and he has an assistant help him function -- no doubt a double-expense that the CHRC regards as a source of pride and a symbol of how the rest of society ought to work. I think it's great that Steacy is still working despite his handicap. But being an investigator, especially where the matters investigated are words and symbols and intricate websites, requires eyesight. Keeping a lead investigator who is blind isn't just an act of supreme political correctness, it's an act that so obviously risks the integrity of the commission's work. Again, if it helps, imagine if an investigator hunting real crimes, not thought crimes, were blind. It's inconceivable that any defence lawyer wouldn't immediately object to any of the evidence that such an investigator collected, on the grounds that it was flawed; I can't imagine any criminal judge accepting such evidence -- if it related to anything important, it would simply provide "reasonable doubt" to any charge, and yield an acquittal. It's so ridiculous, it wouldn't even fly in a fictional TV show, even the most politically correct of the Law and Order series just wouldn't be able to have a blind investigator without fans jeering "yeah, right".
It also raises the interesting question, posed by Jay Currie, about Steacy's office helper. Why wasn't she examined, too? She was clearly involved with every step; it would be fascinating to compare her testimony to that of her boss, to find discrepancies. In a real court, that would be done, and Steacy's assistant would be excluded from court as he was answering his questions, so as not to skew her answers. But this isn't a real court.
Look, I think it's great that Steacy's still working after going blind -- the fact that he was the CHRC's union boss probably ensured that his lower productivity and need for another assistant wouldn't even be considered. I'm sure that, if the CHRC could, it would require all Canadian businesses to go to such lengths and costs. But even the nuttiest anti-discrimination advocate would acknowledge that there are some jobs where vision is necessary. Being a pilot is one of them; being an investigator is another. Unless, of course, accuracy, comprehensiveness and fairness are optional -- which is why the CHRC permits it.
CHRC's open defiance of the rule of law
Despite the unfairness of the procedure, there were a few moments when lawyer Barbara Kulaszka had Steacy pinned down. Again, I don't have the transcripts, but from the reports, Steacy simply refused to answer several questions put to him. His lawyer had no legal objection to them; he was there under subpoena. Steacy simply didn't like the questions, so he didn't answer them -- and Hadjis sat there, blinking, a deer in headlights. In a real court, a real judge would have ordered Steacy to answer, or be held in contempt. That's because, to a real court, Steacy wasn't just thumbing his nose at the accused, he was thumbing his nose at the legal process itself -- at the judge himself. Steacy might even have faced jail, in a real court; his employer, the CHRC, might have faced other sanctions; the case against Lemire itself might have turned on that conduct. But not in the kangaroo court of the human rights commissions and their tribunals.
There was no sanction attached to that bald-faced contempt. One wonders why Vigna went to such a song and dance last year; one wonders why Steacy and Rizk even showed up at all yesterday. The Tribunal obviously won't do a thing to them -- Hadjis will save his punishments for Lemire. Why not? With a 100% conviction rate, the hearing itself is a game. You'd think the CHRC would put on a bit of a show for the gathered media but really, why bother?
The perfidy of the intervenors
The CHRC's conduct, as disclosed yesterday, showed evidence of abuse of process, violation of natural justice, substitution of personal vendettas for the rule of law, corruption of investigations, corrupt evidence, bias, arbitrariness and plain old sloppiness. It's hard to think of a tenet of our Canadian legal tradition that the CHRC did not violate. The Tribunal hearing itself piled on with more unfairness of its own, as outlined above. Which brings me to the intervenors in the hearing.
Stephen Harper's Conservative government was represented at the hearing by a lawyer, intervening on behalf of the CHRC. That decision was made long ago, perhaps even before the Conservatives took office. But they did indeed take office, more than two years ago, and they could have quit the case. And, even if they were unaware of the activities of a single government lawyer at first, the public scrutiny of the last few months has removed that excuse from them. More on this below.
As well, the Canadian Jewish Congress and the B'nai Brith intervened on behalf of the CHRC, too (and so did the Simon Wiesenthal Center). The CJC has been embarrassed lately, especially in the pages of the National Post, by its participation in these witch hunts. The CJC's reply -- and it seems to be the B'nai Brith's answer, too -- is that while they stand by the concept of HRCs, they oppose some of the excesses of the system. When Rex Murphy did a whole edition of Cross Country Checkup on the subject, the CJC's Bernie Farber admitted that the system needed to be "tweaked". The CJC's figurehead presidents even wrote that the CHRC needed to more carefully weed out abusive complaints, though they did so, as usual, in a very mealy-mouthed way.
Well, that's what they write publicly -- but the CJC and B'nai Brith participated in yesterday's abominable hearing, without a word of protest. They don't want to tweak the system -- that's just something Farber says when he's sitting on the hotseat on national radio. The CJC is a major part of the CHRC's thought crime system, a system that's rigged against the CJC's political enemies. They'll make occasional noises about reform and "tweaking" the system, but then they'll be right there in the Tribunal hearing, participating in an utterly compromised and abusive process. Shame on them.
Specific revelations
There were a few specific revelations that did emerge yesterday, despite the corrupt Tribunal process. It was amazing to read about how Richard Warman -- the complainant in this matter -- simply traipsed back into the CHRC offices and used CHRC computers, pseudonyms and passwords of the very people who were investigating his complaint. Just look at that again: he was a party to the complaint, but he had full access to the CHRC's own investigation into that complaint. That's staggering. If this were a real investigation of a real crime with real police, and the alleged "victim" were to walk right into the crime lab, hop on the officers' computers, and poke around the evidence, a judge wouldn't have to throw the case out -- prosecutors would be too embarrassed to even bring the case to trial. Not so at the commission, which was in collusion with Warman, as I've documented before.
Another stunning revelation is the improper collusion between the CHRC and police, and even CSIS, Canada's spy agency. Steacy admitted that police would use their extraordinary powers to search and seize computers from people, not lay any charges against them, and then turn that evidence over to the CHRC, which would then use that evidence for their own thought crimes investigations. That sounds like, at the very least, a lawsuit against the police for breach of privacy, breach of confidentiality, abuse of office and abuse of process. The tactics of the thought police are corrupting the real police -- which is terrifying. Parliament gave many powers to the CHRC in law, but they specifically didn't give them all the powers of real police. The fact that the CHRC is undertaking secret arrangements with police departments and CSIS to use their powers is deeply disturbing.
There were a half-dozen other factoids that were troubling, but for now I'll leave those to the bloggers I linked to at the beginning of this post.
ezralevant.com/2008/03/a-day-in-the-life-of-canadas-k.html