Monday, January 14, 2008

Let's Get A Few Things Straight Here

Apparently, some people haven't taken the time to understand the blatant distortion of process that Ezra Levant is propagating.

Let me be abundantly clear about one thing: I am not speaking to the merits of the complaint against Levant - I have my own opinions about that topic, and my own suspicions about Mr. Levant's intention and motives in publishing those cartoons. I have commented on that before on the blog, you can dig it up in the archives. Levant had every right to publish those cartoons, but in doing so, he also stands to bear the consequences of doing so.

When I speak of due process being carried out, the criticism has been raised that Ezra hasn't been allowed to call witnesses, etc. There is in fact a reason for this. Then AHRC processes are specifically designed with a significant weighting towards conciliation as opposed to courtroom-like adversarial proceedings (which are about the last option used)

Based on this flowchart, I would suspect strongly that the complaint in question is currently in the "Investigation" stage, not the formal hearing process as took place this past summer with regards to the Boissoin case.

On that basis, the criticism that Ezra hasn't been able to call witnesses, or engage in cross-examination activities is hardly surprising - in general practice, during the course of an investigation, someone being questioned by the investigator has a right to counsel, but not necessarily to call forth witnesses etc. - that happens in the courtroom - later. (Granted, since I am not directly party to the case, it is possible that the inquiry has been styled a "hearing", but I think procedurally it is in fact an Investigation - if you have clarity to the contrary (from a source other than Mr. Levant), let me know)

With respect to the more formal hearings process, I draw your attention to the following from the Commission Bylaws:

Submissions to Panel

11(1) The party with carriage of a matter shall provide the Commission with any documents or evidentiary matters upon which they intend to rely at the hearing for distribution to the party opposite at least 21 days prior to the hearing. The respondent shall provide responding documentation to the Commission for distribution to the party opposite at least 14 days prior to the hearing.

11(2) The admission of the evidence shall be determined by the panel at the hearing.

11(3) A submission shall state the nature of the order which is sought from the panel and may in addition, include:

1. an acknowledgment of any agreed upon facts,

2. written arguments covering legal points and authorities,

3. affidavit evidence,

4. any documents or exhibits,

5. the names of the witnesses the party intends to call,

6. the estimated time that the party needs before the panel, and

7. any preliminary matters that the party intends to raise, including any questions of jurisdiction.


Now, that sounds a great deal more like the kind of "courtroom hearing" that Ezra claims is being denied to him. More rationally, I suspect it's a matter of the Conciliation process having been tabled and failed for whatever reason.

(I should point out that last summer's hearings in the Boissoin case included witnesses and third party intervenors) Those interested in the boundaries of the AHRC's authority are referred to the legislation: Human Rights, Citizenship
and Multiculturalism Act
.

There is a process here. It is fairly well defined, and available to the public. Further, the process at play is "quasi-judicial" - not entirely anchored in the rigors of the legal system in some respects, but certainly subject to appeal in the court system. See S. 37 of the act, which reads:

Appeal

37(1) A party to a proceeding before a human rights panel may appeal an order of the panel to the Court of Queen’s Bench by originating notice filed with the clerk of the Court of the judicial district in which the proceeding was held.

(2) The originating notice under subsection (1) shall be filed with the clerk and served on the Commission and the other parties within 30 days after the date the appellant receives a copy of the order of the human rights panel.

(3) Forthwith after being served with an originating notice under subsection (2), the Commission shall file the following with the clerk of the Court:

(a) the order of the human rights panel, together with reasons;

(b) the complaint;

(c) the evidence taken at the hearing and all exhibits filed.

(4) The Court may

(a) confirm, reverse or vary the order of the human rights panel and make any order that the panel may make under section 32, or

(b) remit the matter back to the panel with directions.

(5) Commencement of an appeal under this section does not operate as a stay of proceedings under the order of the human rights panel unless the Court so orders.


In short, even if hearings in this matter do not go in Ezra's favour, he has the right to appeal the decision into the Court of Queen's Bench in Alberta.

At this stage, following the AHRC investigator's report, there are several possibilities - only one of which results in a Panel Hearing taking place.

6 comments :

BillBC said...

re "blatant distortion of process." Surely Levant's point is that the process itself is a bad one. Of course he has the right to appeal, to a trial, whatever. His point though is that he should not have to answer at all for publishing the cartoons, except in a court of law to answer a charge of libel, etc. Why is this so hard to understand? The whole process is a bad one.

Did you read Sohwarhardy's original complaint? Levant posts it on his site. Scrawled in pen, it contains one gem: that the complainant was personally damaged by hate because he's a direct descendant of Mohammed. If the HRC doesn't throw this out at first reading, what kind of rubbishy complaint are Canadians safe from? Shall I complain about you because you don't like Stephen Harper, and this makes me feel humiliated and offended? Where does this nonsense end?

BillBC said...

PS...sorry to harp on this, but I just can't understand your position..."some people haven't taken the time" you say.

What Levant is doing probably is a distortion of the process, but his point is that the process is bad. That's why he's making fun of it.

You say, blandly, at the end of yr piece, "In short, even if hearings in this matter do not go in Ezra's favour, he has the right to appeal the decision into the Court of Queen's Bench in Alberta."

No doubt. Tell me, who pays for this? It doesn't cost the complainant a cent. Why should Levant have to appeal to the Court of Queen's Bench for something he's published, when he hasn't been charged with a criminal or civil offence?

Grog said...

Let me give you the brief precis:

Levant is complaining loudly about the process and is claiming that it is "invalid" by implying that there is no process at all.

This is a complete fabrication on his part.

The reality is that there is a process, imperfect as it might be.

The only criticism that Levant has made that I believe there is some substance to is related to the rules of evidence - a matter that can reasonably be addressed.

Instead, Levant is strutting about the stage claiming that he is above Alberta and Canadian law - largely because he finds the law in place inconvenient at this time.

If he wishes to propose a constructive process or changes to the process, that's fine. He isn't doing that. Instead, he claims the whole thing is "invalid".

Given that only a handful of cases before the HRC bodies in Canada ever reach formal hearings (by far the majority are either declined or settled by some form of negotiation) Given that reality, I have a great deal of difficulty accepting Ezra's assertions regarding the process.

With respect to legal costs, it is Ezra's choice whether or not to retain counsel - just as it is for the person filing the complaint.

Grog said...

One other point:

I don't expect you to agree with me on this, or any other topic.

I've said my piece and stated my reasons for my position - including corroborating facts upon which my position is based.

You are free to believe that it is a "bad process", but I ask you do so recognizing that there is in fact a process, and it is not as arbitrary as is being implied by others.

Anonymous said...

It strikes me that Ezzie's behavior is conduct unbecoming a member of the Alberta Bar.

Is he not able to argue such a simple matter on his own before the Human Rights Panel, if it ever gets that far? Right now, it's just at the investigation stage. If there isn't a case of discrimination, then the case will be rejected.

Ezzie seems to love strutting his stuff before the media. No doubt he will enjoy trying to perform his rants before the Court of Queens Bench. However, I doubt that any sitting Judge would tolerate his childish theatrics.

Cry me a river, Ezzie... at least you're no longer publishing your horse shit on paper.

Grog said...

It strikes me that Ezzie's behavior is conduct unbecoming a member of the Alberta Bar.

"conduct unbecoming" is a pretty strong assessment - especially given that it has a rather formal meaning in professions such as law, accounting and engineering.

I will grant that his behaviour is certainly immature, and largely seems to be a response to finding himself in an awkward situation.